Opinion
No. 5127.
June 4, 1928.
APPEAL from the District Court of the Fifth Judicial District, for Franklin County. Hon. Robert M. Terrell, Judge.
Defendant was convicted of the crime of adultery and he appeals. Reversed and remanded, with instructions to grant a new trial.
L.R. Morgan and P.J. Evans, for Appellant.
The court erred in said case in refusing to sustain defendant's challenge to the jury panel in said cause, whereby defendant was denied a fair and impartial trial by a jury of his peers as provided by C. S., secs. 6529-6537, inclusive. (C. S., secs. 6529-6539.)
The said verdict is contrary to the evidence in that there was no sufficient competent testimony introduced in said action, outside of the testimony of the confessed accomplice, tending to show the commission of the offense charged, or the circumstances thereof, or tending to connect the accused with the commission of the crime charged. (C. S., sec. 8957; State v. Clark, 27 Idaho 48, 146 P. 1107; State v. Knudtson, 11 Idaho 524, 83 P. 226; State v. Bond, 12 Idaho 424, 86 Pac. 43; Pate v. State, 91 Tex. Cr. 471, 239 S.W. 967; People v. Doyle, 107 Misc. Rep. 268, 177 N.Y. Supp. 641; Underhill, Cr. Ev., 3d ed., pp. 93, 162, sec. 130; People v. Clough, 73 Cal. 348, 15 P. 5; State v. Lay, 38 Utah, 143, 110 P. 987; State v. Carr, 28 Or. 389, 42 P. 215; 12 Cyc. 456, 457; 16 C. J. 679; People v. Robbins, 171 Cal. 466, 154 P. 317; People v. Sciaroni, 4 Cal.App. 698, 89 P. 133; People v. Flood, 41 Cal.App. 373, 182 P. 766; McAlester v. State, 15 Okl. Cr. 78, 174 P. 1106; Vails v. State, 59 Tex. Cr. 340, 128 S.W. 1117; People v. Becker, 210 N.Y. 274, 104 N.E. 396; 1 R. C. L., p. 169, sec. 15.)
The court erred in denying defendant's motion for an instruction, directing the jury to acquit the defendant, made at the conclusion of the state's case, and renewed at the end of the taking of testimony in said case, on the ground that there was not sufficient corroboration of the testimony of the accomplice. (C. S., secs. 8957, 8963; Territory v. Neilson, 2 Ida. (579) 614, 23 P. 537.)
The court erred in refusing to strike from the testimony of complaining witness evidence regarding certain meetings and acts between said witness and defendant on the ground that such testimony was incompetent, irrelevant, immaterial and too remote, and did not tend to prove any issue in the case. (8 R. C. L., p. 179, sec. 172.)
The court erred in refusing to strike the testimony of witness Sheriff Head, regarding the marriage of defendant, on the ground that the same was incompetent, irrelevant and immaterial and not the proper way of proving a marriage in a criminal proceeding, and as not tending to prove any issue in the case. ( People v. Breeding, 19 Cal.App. 359, 126 P. 179; 1 Wharton's Crim. Ev. 405, 407, 471; Johnson v. State, 60 Ark. 308, 30 S.W. 31; Ham's Case, 11 Me. 391; State v. Dooris, 40 Conn. 145; State v. Matlock, 70 Iowa, 229, 30 N.W. 495; State v. White, 19 Kan. 445, 27 Am. Rep. 137; State v. Edmiston, 160 Mo. 500, 61 S.W. 193; Cox v. State, 117 Ala. 103, 67 Am. St. 166, 23 So. 806, 41 L.R.A. 760; Commonwealth v. Lucas, 158 Mass. 81, 32 N.E. 1033.)
Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.
The trial court has authority to select a jury by special or open venire. (C. S., sec. 6338; State v. Barber, 13 Idaho 65, 88 Pac. 418; State v. Steen, 29 Idaho 337, 158 P. 499.)
Independent evidence, even though slight and circumstantial, is sufficient to corroborate the testimony of an accomplice if it tends to connect the defendant with the commission of the crime charged in the information. ( State v. Grimmett, 33 Idaho 203, 193 P. 380; State v. Smith, 30 Idaho 337, 164 P. 519; State v. Gillum, 39 Idaho 457, 228 P. 334; State v. Whisler, 32 Idaho 520, 185 P. 845; State v. Sims, 35 Idaho 505, 206 Pac. 1045; People v. Rose, 42 Cal.App. 540, 183 P. 874; State v. Ritz, 65 Mont. 180, 211 P. 298; State v. Bolton, 65 Mont. 74, 212 P. 504; 1 R. C. L. 171.)
The granting or refusal of a motion for an instructed verdict lies within the discretion of the trial court. ( State, v. Haverly, 4 Idaho 484, 42 P. 506; State v. Murphy, 29 Idaho 42, 156 P. 908; State v. Simpson, 31 Idaho 591, 173 P. 748.)
In adultery cases evidence of prior meetings and adulterous conduct is admissible to show the intimacy between the parties. (Underhill on Crim. Ev., 3d ed., sec. 581.)
In an adultery case, defendant's marriage may be proven by declarations and admissions made by the defendant. ( State v. Moore, 36 Utah, 521, Ann. Cas. 1912A, 284, 105 Pac. 293; In re Kiesl's Estate, 35 Wyo. 300, 249 P. 81; State v. Park, 44 Utah, 360, 140 P. 768; State v. Greene, 38 Utah, 389, 115 P. 181; 2 C. J. 27.)
It is discretionary with a trial court whether or not it shall permit a challenge to a juror to be tried by other evidence than that of the juror himself. (C. S., sec. 8936.)
Defendant Shelton, convicted of adultery, appeals. The particular act was charged to have been committed on or about January 1, 1926. Over defendant's objection, the prosecutrix was permitted to testify to several other meetings with defendant and especially to three additional acts of intercourse had with him in August and September, 1925, and February, 1926. Upon motion of defendant's counsel, the court required the state to elect the particular act upon which it relied for a conviction; and, the act of January 1, 1926, having been elected, counsel moved to strike all evidence of the prosecutrix covering other relations. The motion was denied.
There are thirteen assignments of error. The jury panel had been summoned by special venire. Defendant challenged the panel, insisting that he was entitled to a trial by a jury drawn according to law. The challenge was properly denied, the matter of special venire being within the court's discretion. ( State v. Steen, 29 Idaho 337, 158 P. 499; State v. Barber, 13 Idaho 65, 88 P. 418.)
Nor did the court err in denying defendant's challenge to the juror, Peterson, for actual bias, and denying a requested trial of such challenge. It is discretionary with the court whether or not it will permit a challenge to a juror to be tried by other evidence than that of the juror himself. (C. S., secs. 8935, 8936.) In the absence of a showing to the contrary, it will be presumed that the defendant offered no witness in support of his challenge, and that the court was satisfied with the examination on the voir dire.
In order to prove the defendant a married man at the time of the alleged act, the witnesses, Paton and Head, testified to certain declarations of defendant referring to the latter's wife. Their testimony, coupled with that of the witness, Jensen, conclusively showed that both prior and subsequent to January 1, 1926, the defendant was residing with a woman he held out as his wife, and that such woman was one and the same. Defendant moved to strike the testimony of the two former witnesses, and complains of the court's denial of his motion, insisting that the evidence was incompetent to prove a marriage in a criminal prosecution. That such evidence was competent to establish the fact of marriage prima facie was held in State v. Poulos, 36 Idaho 453, 212 P. 120, and State v. Sayko, 37 Idaho 430, 216 P. 1036, both of which approved the following rule laid down in Plummer v. State, 27 Ga. App. 185, 108 S.E. 128:
"The fact of the marriage may be at least prima facie shown by any of the following methods: By proof of general repute in the family; . . . . by proof of general reputation in the community; . . . . by proof of the fact that the man or woman, as the case may be, lives together with a person of the opposite sex, as his or her spouse, with general recognition in the community of their being married to each other . . . ."
The same rule applies to declarations and admissions of the parties. (Note to Taylor v. Swett, 22 Am. Dec. 156, 158.)
A motion to strike the testimony of prosecutrix relative to meetings other than the one on January 1st or 2d was made at the conclusion of her direct examination but no motion to elect was made until the conclusion of the state's case when an election was made. In adultery cases, evidence of acts both prior and subsequent to that with which defendant is charged is admissible to show intimacy and an adulterous inclination on defendant's part, providing the prosecution elects an act of a particular date as the act charged and introduces some evidence to support this election. ( People v. Casiro, 133 Cal. 11, 65 Pac. 13; People v. Koller, 142 Cal. 621, 76 P. 500; People v. Harlan, 29 Cal.App. 600, 156 P. 980.) While, therefore, the election should have been made before the evidence of other offenses was introduced, it was not prejudicial error to refuse to strike the testimony.
The refusal of the court to advise an acquittal was purely a matter of discretion and is not reviewable here. ( State v. Simpson, 31 Idaho 591, 173 P. 748; State v. Murphy, 29 Idaho 42, 156 P. 908; State v. Haverly, 4 Idaho 484, 42 P. 506.)
It is urged that there was insufficient corroboration to sustain the verdict. That the prosecutrix gave birth to a child in September, 1926, is not corroborative testimony tending to connect the defendant with the commission of the offense alleged. There are left, therefore, but two corroborative circumstances: that defendant was a married man and that he was seen with the prosecutrix on certain occasions and inquired for her at her temporary abode on two others.
Four witnesses testified to meetings between defendant and prosecutrix, thus summarized:
One meeting in April, 1925, one in August, 1925, one in September, 1925, one in October, 1925, and one in November or December, 1925; two inquiries at prosecutrix's temporary place of abode, one in August, 1925, and one in February, 1926; two automobile rides, one in April, 1925, and one in August, 1925. No improper action, so far as the record discloses, except as testified to by the prosecutrix, took place on any of these occasions.
Even though the jury were justified in concluding that defendant being a married man, the meetings indicated an adulterous disposition on his part, there was in addition shown only opportunity, and that in general; no one except the prosecutrix testified that there was opportunity on the date of the alleged offense, January 1st or 2d, 1926, and there is authority that the opportunity shown must be as to the time and place of the offense alleged. ( State v. Sheffield, 45 Utah, 426, 146 P. 306.)
Prosecutrix was an accomplice. ( State v. Sims, 35 Idaho 505, 206 P. 1045; 16 C. J. 678, sec. 1374.)
C. S., sec. 8957, provides:
"A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof."
Construing and applying this statute as to the requisite corroboration of a prosecutrix in adultery, this court, in State v. Sims, supra, cited with approval State v. Tracheal, 150 Iowa, 135, 129 N.W. 736, as follows:
"Mere disposition and opportunity to commit adultery are not alone sufficient to justify a conviction, but there must be circumstances inconsistent with any other reason. able hypothesis."
And in the same case, the court quoted with approval from a Wisconsin case as follows:
"It is enough to sustain a conviction of adultery that the adulterous disposition be shown to exist between the parties, and that they were together in equivocal circumstances, such as would lead the guarded discretion of a reasonable man to the conclusion of guilt beyond a reasonable doubt." ( Monteith v. State, 114 Wis. 165, 89 N.W. 828.)
In the case at bar there were no equivocal circumstances. The proof tending to connect the defendant with the commission of the offense, that is, the adultery, rested, so far as the record discloses, except for the testimony of the prosecutrix, on several innocuous meetings such as any innocent acquaintances might have had.
The corroborative evidence is insufficient to sustain the verdict. ( People v. Robbins, 171 Cal. 466, 154 P. 317; State v. Thompson, 133 Iowa, 741, 111 N.W. 319; State v. Chaney, 110 Iowa, 199, 81 N.W. 454; State v. Scott, 28 Or. 331, 42 P. 1; State v. Sheffield, 45 Utah, 426, 146 P. 306; State v. Lay, 38 Utah, 143, 110 P. 986.)
Defendant's requested instruction No. 2, that the prosecutrix was an accomplice, should have been given. The others, requested and refused, were fairly and properly covered in those given by the court.
The judgment is reversed and the cause remanded, with instructions to grant a new trial.
Wm. E. Lee, C.J., and Taylor, J., concur.
Budge and T. Bailey Lee, JJ., dissent.