Anderson v. State , 65 Utah 512 ( 1925 )

I concur in the result. To justify equity in setting aside a judgment for fraud, the facts constituting the fraud and that the judgment was the product of it should be clearly shown, but I think need not be shown beyond a reasonable doubt. If they are shown to the satisfaction of the court, I think that is all that is required.

The chief ground to vacate the judgment is the alleged false or perjured testimony of the prosecutrix and of her mother in the bastardy case, to the effect that the plaintiff was the father of the child and that the prosecutrix had kept company with no male person except Fife, whom no one accused of any improper relations. The opinion points out wherein it is claimed such testimony was wilfully false.

I think the judgment of the court below should be affirmed on the points: (1) That as a general rule a bill to vacate a decree or judgment will not lie on alleged grounds that the judgment was obtained by perjury or subornation of perjury; and (2) because it is not shown that there was in law any suppression of evidence, nor are there any facts alleged or proved that the prosecutrix or any one on her behalf, or the state, in the bastardy case was under legal obligation to reveal or furnish testimony or evidence for the use of the plaintiff, or used any artifice by which evidence was concealed from him or by which he was prevented from discovering or presenting it in the original action. The first does not avail plaintiff in equity, and the second was not established nor is it claimed.

The prosecutrix in the original action testified no one had lain with her but the plaintiff. After judgment the plaintiff discovered another who had visited and caressed her, but who had not lain with her — at least such other so testified, and no one testified that he had. Thus, we have a situation where, in the original action, the prosecutrix testified the plaintiff, under most peculiar circumstances, committed the offense and where he denied it, and where, after judgment, it was found that another had more favorable access than had the plaintiff, and while such other caressed the prosecutrix, yet there is no satisfactory evidence that he committed the offense. At least, to find that he had, the court was required to indulge in more or less conjecture. The requirements of equity as to the character and degree of evidence — clear and convincing, or to the satisfaction of the court — have thus not been met.

I therefore concur in the holding that no facts of equitable cognizance are shown, and on that ground concur in the affirmance of the judgment.

In such view the question of diligence or lack of diligence in discovering what was claimed was found and presented is of no moment. However, I do not see any want of diligence and do not think plaintiff's action should be defeated on that ground. If otherwise entitled to prevail, plaintiff, of course, could not prevail if the judgment which he seeks to vacate was due in whole or in part to his own negligence or lack of diligence in discovering and presenting in the original case what is now presented by him. But I do not see that plaintiff or his counsel was guilty of negligence in not discovering that another had visited the prosecutrix and kept company with her and fondled or caressed her. Plaintiff's defense in the bastardy case was not guilty. The burden was on the prosecution to show his guilt. To show his innocence he was not required to show who was the guilty person. The duty was cast on the prosecution to show that the plaintiff had committed the offense and not on him to show that another had committed it. The suggestion that because present counsel of plaintiff had no difficulty in obtaining and presenting the discovered evidence, therefore the plaintiff and his counsel in the bastardy case with due diligence could have obtained and presented the same evidence, is, I think, chiefly argument. It is common knowledge that one person may obtain information where another with equal diligence may fail. It also is common knowledge that some persons after trial are more prone to give information than before trial, especially interested witnesses to the adverse party. In considering whether one before judgment could as readily have obtained certain testimony as did another after judgment so many variant equations and elements enter into the matter that no safe conclusion can be deduced from the fact that the one obtained it and the other did not. There is no claim made that the plaintiff or his counsel before judgment in the bastardy case had any knowledge whatever that such other, or that any one, had visited the prosecutrix and kept company with her, or had caressed or fondled her. Plaintiff knowing that the prosecutrix was with child, and he asserting his innocence, as he did, of course, on his theory, knew that another and not himself had committed the offense; but that is only restating the proposition that if the plaintiff had not committed the offense he was required to show who had. I thus do not concur in the conclusion that the plaintiff or his counsel was guilty of negligence in not discovering the evidence before judgment in the original action.