State v. Thompson ( 1906 )

STRAUP, J.

1. The defendant' was convicted of adultery and appeals. It was alleged in the information that the defendant, a married man, “on the 13th day of February, 1905, and on divers other days and thence continually between the said 13th day of February, 1905, until the 1st day of August, 1905,” committed adultery with Tora Jensen, an unmarried woman. To this information a demurrer was filed on the grounds that no offense was alleged, and that more than one offense was charged. It is urged that instead of charging adultery there. is charged the crime of living in a state of adultery, which is not a crime under the Penal Code. It is time that living in a state of adultery is not made an offense by statute. The information, however, charges sufficient facts to constitute the crime of adultery as defined by section 4210, Revised Statutes 1898. An offense of adultery committed on a specified day and year is charged. Whether the information is open to the objection of duplicity is more serious. Section 4734, Revised Statutes 1898, as amended by chapter 31, p. 51, Sess. Laws, 1899, provides that an information or indictment must-cbarg© but one offense. It is urged by appellant that by tbis 'information more tb.au one offense of adultery is charged. We think not. Every information or indictment, to' be adequate, must allege a day and year on which the offense was committed. It is inadequate to charge an offense committed at some indefinite time between two specified days. The information charged an offense committed on a specified day and year, the 13th day of February, 1905. It did not suffi'ciently charge another offense committed on another specified day and year. It only charged an offense committed at some indefinite time between two specified days. But such an allegation is inadequate to charge an offense. If a count attempts to charge two or more offenses, yet, but one of them sufficiently, the information is not double; to be so, it must have complete averments of not less than two’. Had the information charged two adulterous acts committed on two separate and specified days, then it could be said two offenses had been charged. But this information, does not so charge. Under it, the defendant could be convicted of but one offense. The allegation that the defendant committed the offense at an indefinite time on divers days between two1 specified days does not charge any offense, and may be rejected as surplusage. The allegation that the offense was committed on a certain day and thence continually between certain days, charges but on© offense, because the day of another offense committed is not sufficiently specified. Each act of adultery constitutes a separate offense. Adultery is not a continuous offense'. A contimumdo is not necessary unless'for an essentially continuous offense. When an information sufficiently charges an offense, not essentially continuous, committed on a specified day and year with an unnec-cessary contimumdo, the continuando> does not injure the information, but may be rejected as surplusage. The views herein expressed are supported by the following authorities: State v. Briggs, 68 Iowa 416, 27 N. W. 358; People v. Adams, 17 Wend. (N. Y.) 475; State v. Nichols, 58 N. H. 41; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Wharton, Crim. Pl. and Pr. (9th Ed.), section 125; Bishop’s New C'rim. Proc., sections 395-396, 440. While the form of this pleading is not to be commended, yet, for the foregoing reasons, we are of the opinion that the information is not open to the objection of duplicity. No error was committed in overruling the demurrer.

2. Over appellant’s objection the state was permitted to> give evidence of an adulterous act committed on the 1st day of February, 1905. It was as to that day and as to that offense that the case of the state was directed. It is claimed by the appellant that the state could not allege an offense committed on the 13th day of February, and prove an offense committed on the 1st day of February. The contention made is fully answered against appellant in the cases of State v. Woolsey, 19 Utah 486, 57 Pac. 426, and State v. Hilberg, 22 Utah 27, 61 Pac. 215, where the matter is fully discussed.

3. The case was tried on the 18th day of October, 1905. The prosecutrix testified that she was and always had been a single and unmarried woman, and that she never had sexual intercourse with any person other than the defendant. Over defendant’s objection, she was permitted to state that at the time of the trial she was pregnant. A physician, who had examined her on the day before the trial, was permitted to state, over defendant’s objection, that'the prosecutrix was about eight months in pregnancy and that, in his judgment, conception took place during the early part of the month of February, or possibly the middle. It is claimed that this evidence was incompetent (1) because it did not tend to show that the defendant had sexual intercourse with the prosecu-trix, and (2) that it was indirectly permitting the state to prove an adulterous act subsequent to the one relied on for a conviction. The prosecutrix being, and having always been, an unmarried woman, the fact of pregnancy was positive proof of illicit connection with some one. It did not fix the appellant as the participant therein, but it was a fact in the case competent to. be made known to> the jury as corroborative of the testimony of the prosecutrix that a crime had been committed on or about the time relied on for a conviction. For such purpose the testimony was competent and properly received. (Armstrong v. People, 70 N. Y. 38; People v. Goodwin, 132 Cal. 368, 64 Pac. 561; State v. Wickliff, 95 Iowa 386, 64 N. W. 282.) Prom tbe pregnant condition of'the preseeutrix and the period of gestation as described to the jury, they might find that conception took place on or about February 1st, the time elected by the state for a conviction, and hence the testimony is not open to the objection that it necessarily tended to prove another and subsequent adulterous act.

4. The court charged the jury: “You are instructed that some testimony has been given tending to show that the witness Tora Jensen (the prosecutrix) is now in delicate health, or, in other words, is pregnant. If you believe beyond a reasonable doubt that she is pregnant, then, in that event, you may take that fact into consideration in so far as it may in connection with other evidence, tend to connect the defendant with the crime or corroborate her testimony. Nevertheless, I charge you that such fact, if you believe beyond a reasonable doubt that it is a fact, is not of itself any evidence that the defendant has had sexual intercourse with the said Tora Jensen.” The giving of this instruction is assigned as error. It is contended that the court charged the jury that it may consider the fact of pregnancy as tending “to connect the defendant with the crime,” and that this is an erroneous statement of the law; and that when the court in the subsequent sentence charged the jury that pregnancy “is not of itself any evidence that the defendant has had sexual intercourse with” the prosecutrix, the jury were given inconsistent instructions, and were misled as to the purpose for which this evidence could properly be considered by them. The point is well taken. The prosecutrix was an accomplice. Section 4862, Revised Statutes 1898, provides:

“A conviction shall not 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 donnect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.”

It was'therefore essential to a conviction that there be evidence corroborative of the testimony of the accomplice “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.” As heretofore shown, the fact of pregnancy was competent for the purpose of showing that an offense was committed and as corroborative of the testimony of the prose-cutrix as to such fact. But it was not competent proof as tending to connect the defendant with the commission of the offense. When the court charged the jury, as it did, that they, may consider it for such purpose, it committed error. It cannot be said that the error was cured by the subsequent sentence referred to. The instruction fairly construed means that the jury may consider the fact of pregnancy in connection with other evidence as tending to connect; the defendant with the commission of the offense, but that within itself it is not sufficient to do so’. But, as before pointed out, it was not competent evidence to be considered at all as connecting the defendant with the commission of the offense. It was competent only as to the commission of an offense, and could not properly be considered by the jury for any other purpose, and they should so have been instructed. Where evidence is received in a ease which is admissible only for a certain purpose, and inadmissible for other purposes to which the jury unaided may properly apply it, it is essential that the court should correctly instruct them as to the purpose for which they may consider the evidence. The prosecutrix being an accomplice and requiring corroboration, and the court erroneously instructing the jury with respect to what may be considered by them as corroboration tending to connect the defendant with the commission of the offense, it is at once apparent that the error committed was prejudicial to the defendant.’

5. It is also claimed that the-court erred in giving the following instruction: “You are instructed that a reasonable doubt is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. A reasonable doubt is a fair doubt, growing out of the evidence or lack of evidence, and exists when each juror, after a careful and conscientious-consideration and comparison of all the evidence in the case is unable to say that he has an abiding conviction to a moral certainty of the truth of the charge. Or, in other words, it-is not a mere imaginary, captious, or possible doubt, but a doubt based upon reason and common sense.” It is urged by appellant that this instruction is open to the meaning that a reasonable doubt of a juror exists only when all of the jurors have a reasonable doubt. We do not think the instruction is open to such meaning. We think the fair and Ordinary meaning of the instruction is that a reasonable doubt exists when each juror is unable to say that he has an abiding conviction to a moral certainty of the truth of the charge. “Each” as used in the instruction is a distributive adjective and means “when the same thing is to be' predicated of all the individuals considered distributively or one by one.” ( Standard Diet.) It denotes or refers to every one of the persons mentioned. Every one of any numjber separately considered. (3 Words & Phrases, 2299.) So construing the language the instruction means, unless each and every one of .the jurors, all of them, are able to say that he has an abiding conviction to a moral certainty of the truth of the charge, a reasonable doubt exists. In other words, when any one of the jurors is made so to say, then a reasonable doubt exists. In fact the instruction is- more .favorable to the -defendant than is the law. For that, in case any one of the jurors is unable so to say, not only would it afford a basis for the existence of a reasonable doubt as to him, but also for the jury as a whole. While true, so long as any one of the jurors entertains a reasonable doubt the defendant cannot properly be convicted, yet merely because one juror entertains a reasonable doubt it does not in and of itself necessarily afford a basis for the existence of a reasonable doubt as to the other jurors. But the court in effect charged the jury that if any one of them is unable to say that he has an abiding conviction, etc., then not only does there exist a reasonable ■doubt as to him, but also as to all the jury, although the others, upon a consideration and comparison of all the evidence, have an abiding conviction, etc. And because one juror entertains a reasonable doubt, therefore all jurors must do so, and therefore a verdict of not guilty must be rendered. Be this as it may, we are well satisfied that the jury could not ■and did not get any meaning from the instruction other than the one that before the defendant could properly be convicted, each and all of the jurors must be able'to say that he has an abiding conviction to a moral certainty of the truth of the charge; and so long as any one of them could not so say, a conviction could not properly be had. While the law as to the existence of a reasonable doubt is not very happily stated, yet we do not think the instruction is open to the meaning contended for by appellant, or that the jury were misled’ by it in applying a wrong principle of law.

6. It is further claimed that the court erred in admitting in evidence a marriage certificate showing a marriage between Axtel M. Thompson and Annie Skeen. The defendant’s true name is Axel M. Thompson. The objection urged against this evidence was that the name in the certificate is that of a person other than the accused, and that the certificate was not sufficiently identified. It was shown by the testimony of a minister that about eleven years ago .he married the defendant and Annie Skeen, and that they from thence on to and including the month of February, 1905, lived together as husband and wife. By other testimony it was also shown that in February, 1905, the defendant was, and prior thereto had been, a married man living with his wife whose náme before the marriage was Annie Skeen. The defendant was a witness on his own behalf, and testified that in February, 1905, he was a married man living with his wife and children. In view of the defendant’s testimony, and of his admission on the witness stand that he was a married man, and there being no conflict in the evidence as to such fact, it is wholly immaterial to determine whether the court committed error in admitting in evidence the marriage certificate. The marriage of the defendant to a woman other than the prosecutrix is sufficiently and indisputably established, not only by other evidence wholly independent of the certificate, but by the testimony of the defendant himself. A marriage may be proven not only by the marriage certificate, or a certified copy of the record, but also by the person who performed the ceremony, by a person who witnessed the ceremony, by cohabitation and other circumstances, and by admissions. Where the marriage is sought to be established by a marriage certificate, or a certified copy of the record, there should be something more than a mere production of the certificate, or a copy thereof. There also should be some evidence showing the identity of the parties. But evidence that the real name of the parties differed from the names stated in the marriage certificate is admissible. (1 Cyc. 964 and cases; People v. Stokes, 71 Cal. 263, 12 Pac. 71.) While the preliminary proof that the defendant was the same person as named in the marriage certificate' was not as definite as it might have been, yet we think such fact was sufficiently made to appear from the evidence; At any rate; the error, if any, is entirely harmless.

Blecause of the error in the charge heretofore pointed out, the judgment of the court below is reversed, and a new trial granted.

PRICK, J., concurs.