State v. Greene ( 1910 )

STKAUP, C. J.

The defendant was convicted of the crime of adultery. It was alleged in the information that he, a married man, committed the crime with Madge Morey, an unmarried woman, in Sanpete County, on July 18, 1906. Evidence was introduced by the state tending to show that the defendant in 1906, and for more than ten years prior thereto, resided at Mt. Pleasant, Sanpete County, and that Madge Morey in July, 1906, and for about a year prior thereto, also resided at that place, and that she during that time lived with the defendant and his family. Considerable evidence was had tending to show that the defendant was reputed to be a married man; that his wife’s name was Grace Greene, and that they had lived together at Mt. Pleasant as husband and wife for more than ten years; and that Madge Morey, about twenty years of age, was reputed to be an unmarried woman. An affidavit made by the defendant in October, 1903, in a certain cause, was also introduced in evidence in which the defendant deposed that he “is and has been for ten years last past a married man, and is required to and does support Grace Greene, his wife, who resides with him at Mt. Pleasant, Sanpete County, Utah.” A warranty deed executed by the defendant and Grace D. Greene in April, 1906, was also introduced in evidence, in which it was recited that “Webster Greene and Grace D-. Greene, his wife, grantors, of Mt. Pleasant, Sanpete County,” conveyed and warranted certain real estate therein described. In the acknowledgment of that instrument it was also recited that “Webster Greene and Grace D. Greene, husband and wife, the signers of the above instrument,” duly acknowledged its execution. About the 31st day of December, 1906, Madge Morey left Mt. Pleasant and went to the Florence Crittenden Home, in Los Angeles, California, “a borne for betrayed girls, a maternity home,” and remained there until the 15th day of August, 1907. There she gave birth to a child on the 18th day of April, 1907. While she was at the home the defendant, from Mt. Pleasant, wrote several letters to her, in one of which he sent her money and cautioned her not to “mention receiving any money” and requested her to put a mark on one of the corners of the letter to be written by her, and stated, “I will know what it means.” He signed the letter “Uncle.” In another letter written to her while she was at the Crittenden Home, in which he also referred to himself as “uncle,” he stated: “Dear Madge: Please do not think because your uncle has not written you that he has forgotten you or blames you in any way at all for anything that has transpired, for such is not the case. He has the deepest feelings of sympathy for you and wishes to do all possible he can for you, but to avoid any serious complications he has been forbidden by his attorney to do anything. He hopes you will not make a confident of Enudsen (the sheriff of Sanpete County) or Petersen (who was a witness for the state), or any one else for that matter. If any one comes to you. under any pretext he hopes you will simply say to them you have nothing to say. They can’t force you to say anything or to leave the state unless you desire to do so, and as soon as this matter is settled up your uncle will see that you are taken care of. He has wanted to write you often, but for fear of more trouble has been forbidden to do so, but if you stand pat he will stand by you. Burn this. Go to the country if you have a good chance, and advise your Aunt Grace where you are so you can be cared for. Tour uncle has regretted many, many times that he could not write you, but will no doubt make up for it when things are settled up.” In June, 1907, the sheriff and county attorney of Sanpete County called on the defendant at his place of business at Mt. Pleasant. The sheriff said to himr “I have come to arrest you, Web.” The defendant said: “What for?” The sheriff replied: “The Madge Morey business,” or “matter.” The defendant asked: “What proof have you got ?” Thereupon tbe sheriff produced and handed to the defendant a writing or affidavit purporting to have been made and signed by Madge Morey in Los Angeles, in words and' figures as follows: “Office of the District Attorney, Los Angeles County. State of California, County of Los Angeles — ss.: Madge Morey, of Los Angeles, California, being first duly sworn, says: That she is the mother of an infant son born in Los Angeles, California, April 18, 1907, and that one Webster Greene, of Mt. Pleasant, Utah, is the father of said infant son; that she is unmarried and had sexual intercourse with said Webster Greene at divers times and occasions at Mt. Pleasant, Utah, between February 1, 1906, and October 1, 1906, both inclusive. ' Madge Morey. H. G. S. McCartney. [Seal.]” The defendant, after taking and reading the writing, dropped his head, and said: “I didn’t think Madge would do that.” He was asked if his wife suspected him “in this matter.” He said: “No> I do not know how1 Grace is going to take this.” The county attorney told' him that under the circumstances he would be obliged to' file a complaint against him. The defendant asked him if he would not file it before a particular justice, naming him, and said: “I will never go to the penitentiary, boys,” and asked, if he “should wake up dead some night, would my bondsmen be liable?” The county attorney said: “I think as long as they could produce your body, Web, they would be all right.” The defendant then said: “I don’t believe that baby is mine.” “Well,” said the county attorney, “you don’t deny having sexual intercourse with Madge Morey, do you ?” The defendant said: “No, sir; I do not” — and that “there are some things that will never be told in this transaction.” The defendant then said: “Couldn’t I put up a fine and get out of this ?” The county attorney replied that in a case of that kind the district attorney and the judge would have to be parties to it. The defendant then was asked if he would be willing to plead guilty to fornication, and he replied that he would. The county attorney saw the defendant the next morning and told him that he was very doubtful about getting the defendant through on a fornication charge. The foregoing is, in substance, all tbe evidence produced by tbe state. Tbe defendant offered no evidence.

Tbe defendant, on appeal, urges that tbe evidence is insufficient to show that be was a married man. Tbe contention made by bis counsel in tbis regard is that, to effect a legal marriage it is necessary “for competent persons to declare tbeir intention in writing; to secure tbe written authorization of tbe state; to contract in tbe pres- 1, 2 ence of witnesses; and to be declared husband and' wife by a duly authorized-person. Tbe marriage relation can be created in no other way. No amount of cohabitation, bolding out, admissions, declarations, or repute, in itself, can cause tbe marriage relation to exist. How, then, can proof of these facts even tend to prove a legal marriage?” In State v. Moore, 36 Utah 521, 105 Pac. 293, we held that in a prosecution of an offense where proof of tbe marriage of tbe accused is essential that fact may be proved by bis admissions of tbe fact. We think tbe evidence here was sufficient to justify a finding that tbe defendant was a married man.

It is further urged that, since it was alleged in tbe information that Madge Morey was an unmarried woman, it was essential for tbe state to prove such fact, and that tbe proof that she was reputed to be a single and unmarried woman was not sufficient. We think there was sufficient evidence to show that she was unmarried.

Furthermore, we are of tbe opinion that tbe proof that tbe defendant was a married man, and that be was married to a woman other than Madge Morey, and tbe further proof that be bad sexual intercourse with tbe latter, 3 was sufficient to show him guilty of adultery, whether Madge Morey was a married or unmarried woman. (Section 4210, C. L. 1907.)

Complaint is also made of tbe ruling of tbe court in admitting in evidence the writing or affidavit purporting to have been signed or made by Madge Morey, and which was banded to and read by the defendant as heretofore stated. It is urged that it was improperly received upon tbe ground of hearsay. Had the writing been received 4 as the written declaration of the declarant, and as primary evidence of the facts therein declared, of course, the writing would have been hearsay. But it was not received for such purpose. It was admitted for' the purpose of showing what it was that was submitted to and read by the defendant, and to show the admissions made by him with respect to the statements contained in the writing. And 'to such effect was the jury instructed. The writing was received as a part of a transaction had with the defendant, and to explain and make pertinent the replies and statements which he made in respect of the statements contained in the writing. His answers could not fully be understood without showing what was said to him or shown him, the thing responded to by him. What a party himself admits to be true may reasonably be presumed to be so. The weight and value of such testimony is quite another question. That necessarily will vary according to circumstances. Had the sheriff and the county attorney orally stated to the defendant that he was the father of an infant born to Madge Morey, that she was unmarried, and that he had sexual intercourse with her' at Mt. Pleasant, and had he replied that he had sexual intercourse with her, but he did not believe that the child was his child, it is very apparent that such statements so made to him, and his reply thereto-, would have been admissible. That, in effect, was all that was done here. Instead of making such statements orally to the defendant, they were made in writing. By showing him the statements contained in the wilting, it was, in effect, but another way of stating to him the purported claim made by Madge Morey, that the defendant had sexual intercourse with her at Mt. Pleasant, that she was an unmarried woman, and that he was the father of her child, and, in effect, asking him whether such statements were trae or false. The statements naturally called for a denial if they were not true. His reply was that he had sexual intercourse with her, but did not believe he was the father of her child. Such reply was, in effect, an admission of everything contained in the writing submitted to and read by him, except tbat be was tbe father of tbe child. We think tbe writing was properly received in evidence as part of a transaction bad with tbe defendant (Slatterie v. Pooley, 6 M. & W. 664; Jacob v. Lindsay, King’s Bench, 1 East, 460), and hence was not open to tbe objection tbat it was hearsay.

It is also urged tbat outside of tbe “alleged confession” there is no proof of tbe corpus delicti. Tbe statements made by tbe defendant were in tbe nature of admissions, not a confession. Furthermore, tbe corpus delicti was sufficiently shown by tbe proof tbat Madge Morey, an unmarried woman, gave birth to a child. There was' sufficient 5 evidence to show, independently of tbe admissions of tbe defendant, tbat she was an -unmarried woman, and tbat she gave birth to a child. Tbe defendant’s admission tbat be bad sexual intercourse -with her was sufficient to connect him with tbe offense.

Complaint is also made of tbe rulings of tbe court in admitting in evidence tbe testimony of a witness taken at a former trial of this cause and certified to by tbe official court stenographer to be correct. It is not contended tbat it was not sufficiently made to appear that tbe witness at tbe time of this trial was beyond tbe jurisdiction of tbe court. In fact, it is conceded that there was suffi- 6 cient competent evidence to- show such fact, but it is urged tbat error was committed in admitting certain other evidence offered to prove such fact. Tbe question of tbe admissibility of tbe testimony was for tbe court, not for tbe jury; and, since there is sufficient competent evidence to show tbat tbe witness was beyond tbe jurisdiction of tbe court, tbe question whether other evidence bearing upon such fact was properly or improperly received is wholly immaterial.

In this connection it is also urged tbat section 5013, C. L. 1907, authorizing tbe admission of such testimony, is in conflict with section 12, art. 1, of tbe Constitution of this state, giving tbe accused tbe right to be confronted by witnesses against him. Section 5013 reads: “Whenever, in any court of record, tbe testimony of any witness in any criminal case shall be stenographically 7 reported by an official court stenographer, and thereafter such witness shall die, or be beyond the jurisdiction of the court in which the cause is pending, either party to the record may read in evidence the testimony of said witness, when duly certified by the stenographer to be correct, in any subsequent trial of or proceeding had in the same cause, subject only to the same objection that might be made if said witness were upon the stand testifying in open court.” That such statutory provisions are not in conflict with constitutional provisions referred to is no longer an open question. They many times, and in many jurisdictions, including this, have been held constitutional.

It is further contended that proof of the venue is wanting. It is said that, even though the evidence be deemed sufficient to show that the defendant had carnal knowledge of the body of Madge Morey, there is not sufficient evidence to show that such act was committed in the 8, 9 County of Sanpete. The venue may be inferred from circumstantial evidence as well as proved by direct evidence. It is rare when the' commission of such acts can be shown by direct evidence. They are usually committed covertly, not openly. It was shown that the defendant during the year, 1906, and prior thereto, resided at Mt. Pleasant, San-pete County, and that Madge Morey during that year lived at his house, until in December, when she left Mt. Pleasant and went to the Crittenden Home in Los Angeles. She then was between five and six months in pregnancy. Neither she nor the defendant was absent from the county during the month of July, 1906, except, as testified to by a witness, that she might have been absent a few days. The defendant admitted that he had sexual intercourse with her. It is not made to appear that such act could have been committed at any other place except at Mt. Pleasant, in Sanpete County, Utah. Furthermore, the writing handed to and read by the defendant contained the direct and positive statement that he and Madge Morey on divers occasions between February 1, and October 1, 1906, bad sexual intercourse witb each other at Mt. Pleasant, Utah, and that the defendant was the father of her child born on the 18th day of April, 1907. When confronted by such statement, the only fact therein denied by the defendant, and that but vaguely, was the paternity of the child, by stating that “I don’t believe that baby is mine.” He, however, expressly admitted that he had sexual intercourse with Madge Morey. Now, there may be instances when one’s admission is to be regarded no broader than the words employed or the language used by him. But here the defendant was confronted with a positive and direct charge of having had carnal knowledge of the body of a particular female and at a particular designated place. When no reply is made to a statement made to one, or in his presence and hearing, that he was concerned in the commission of a crime, the natural inference is that the imputation is well founded, or he would have repelled it; for what is said to a man before his face he is in some degree called on to contradict it if he does not acquiesce in it. When, therefore, upon being confronted with such statement, and after having read it, he then said, “I. didn’t think Madge would do that” (for in his letter written to her he had cautioned' her not to say anything to any one and to “stand pat” and informed her that she could not be compelled to say anything or to leave the state of California), and vaguely denied the paternity of the child, and expressly admitted having had sexual intercourse with Madge Morey, it is but reasonable to infer that such intercourse so admitted by him referred to the intercourse or intercourses of which he was then charged or accused. It cannot fairly be inferred that, when he made the admissions, he had in mind that he had had carnal knowledge of her body at Salt Lake City, or in Chicago, or at some place other than as so charged. The only inference is that he had in mind that he had carnal knowledge of her body at Mt. Pleasant, Utah, as charged. Nor from what is made to appear can it be presumed that only the fact of his having had sexual intercourse with Madge Morey was thought by him to be essential, and that the place was unessential or immaterial, and for that reason responded to the one and not to tbe other, or had only the one and not the other in mind. We therefore think that, when the defendant under all the circumstances as disclosed expressly admitted that he had had sexual intercourse with Madge Morey, it is but a reasonable inference that he referred to the sexual intercourse or intercourses had with her at Mt. Pleasant and of which he was then accused and charged, and to which his attention was directed, and concerning which his reply was made. We think the evidence sufficient to show the venue in Sanpete County.

It is argued that the county attorney to whom the defendant admitted that he had had sexual intercourse with Madge Morey was not a competent witness. This contention is based on the facts that the county attorney was of counsel in the case on behalf of the state and par- 10 ticipated in the trial thereof after his term of office had expired. When viewed from the standpoint of ethics, it may be that it is of doubtful propriety for an attorney participating in the trial of a case to become a witness except with respect to matters which are merely formal. But under the statute of this state he nevertheless is a competent witness. (Sections 3412, 3413, C. L. 1907; McLaren v. Gillispie, 19 Utah 137, 56 Pac. 680.) By section 3412 it is provided that “all persons, without exception, otherwise than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses.” The persons specified in section 3413 who cannot be witnesses are those of unsound mind, children under ten years of age, and parties to transactions with deceased or insane persons. The witness was neither of unsound mind, nor a child under ten years of age; nor did he testify in respect of any transaction had with a deceased or insane person. Section 3414 pertains only to privileged communications, and among other things provides that an attorney cannot without the consent of his client be examined as to any communication made by the client to him or his advice given therein in the course of professional employment. It is not contended that the relation of attorney and client existed between the witness and the defendant, or that the communication made by the defendant to the witness was otherwise privileged. To render the witness an incompetent witness, it was necessary to bring him within one or the other of sections 3413 or 3414. He does not fall within either. No objection was made to the county attorney’s appearance in the trial of the case as counsel in behalf of the state, nor to his participation as such in the trial; nor is there any assignment or complaint made with respect to such matters. The objection made in the court below in such particular was, and the only assignment and complaint here made with respect thereto are, that the county attorney was not a competent witness because he was of counsel in the case and as such participated in the trial. The ruling on that objection and the assignment and complaint based upon it is the only question with respect to that controversy which is presented for review. A discussion of any other question relating to it is but didactic.

It is further argued that the testimony of the county attorney and the sheriff in respect of the defendant’s admissions was not competent upon the ground that the admissions were in the nature of involuntary confessions. Whether what was said by the defendant to the county attorney and the sheriff be regarded as admissions or confessions, nevertheless, we think it is clearly made to appear that 11 the statements made by him were wholly voluntary. It is argued that they were involuntary because a hope was held out to the defendant that the charged offense of adultery, which is a felony, might be reduced to that of fornication, which, under our statute, is but a misdemeanor. The admissions or statements of the defendant were not induced or influenced, or brought about, by any such suggestion or hope. When the county attorney' and sheriff visited the defendant and informed him that they had come to arrest him, the defendant inquired “What for?” They informed him that it pertained to the Madge Morey “matter” or “business.” He asked what proof they had. They then produced and handed him the purported affidavit of Madge Morey. After he had read it, and after he had vaguely denied the paternity of the child, expressly admitted that, he had carnal knowledge of the body of Madge Morey, stated that his wife did not suspect him, and that he did not know how she would take it, and after he had been informed by the sheriff that a complaint would be filed against him charging him with adultery, the defendant then inquired of the county attorney and sheriff if he could not “pay a fine and get out of this.” The sheriff told him that he could not. The county attorney said that he knew of a case where that had been done, but also informed him that the judge and district attorney would have to be parties to such an arrangement. The defendant then stated that the judge “had it in for him and might be vindictive rather than to do bfm any favors.” The county attorney then said that he would speak to the judge, “and see what he says about it and how he feels.” Thereafter, with the knowledge and consent of the defendant, the county attorney spoke to the judge, and, when the county attorney met the defendant, the latter asked him what had been done “and how he [the judge] felt.” The witness replied that the judge did not “seem to feel vindictive,” that he thought he would be as fair as he could be under the circumstances, but that the county attorney “was very doubtful about getting the matter through on a fornication charge.” It thus clearly is made to appear that the conversations and transactions relating to the question of whether the offense could be reduced to fornication were had after the defendant had made his admissions. This is therefore not a case where the admissions or confession were the result of promises or inducements, but one where the accused, after having freely and voluntarily made his admissions, importuned the county attorney and the sheriff to help him out of his difficulty. Whether the defendant so importuned them, or whether they themselves first suggested that the offense of adultery might be reduced to fornication if the judge and district attorney consented, is not the material thing. The material thing, and which is clearly shown by the record, is that no such suggestion was made, and that no question arose with respect to the defendant’s plea to fornication, or as to whether the offense might be reduced from adultery to fornication until after the defendant had admitted that he had had sexual intercourse with Madge Morey and had made the admissions referred to.

It is also argued that the conversation between the judge and the county attorney was not competent evidence. That conversation was not put in evidence. No such proof was offered. What was put in evidence was the conversation between the defendant and the county attorney 12 in respect of the latter’s interview with the judge. Standing by itself, such fact has no relevancy. But here it was a part of a transaction in which the defendant, after his admissions, manifested a willingness to plead guilty to fornication and pay a fine, and, being informed that the judge and district attorney “had' to be parties to such an arrangement,” the defendant accepted the proffered assistance of the county attorney to interview the judge and ascertain “how he felt about it.” So that what the county attorney told the defendant in respect of the result of the former’s interview with the judge was but a part of a transaction with which the defendant was himself connected, and in which he endeavored to have the charge of adultery reduced to that of fornication, not on any theory that he was innocent of the former and guilty of the latter charge, but for the sole purpose of lessening the punishment of the crime which he himself had theretofore admitted had been committed by him. It is not contended that the defendant’s conduct in, and his connection with the transaction in which he sought thus to have the punishment mitigated, were not relevant. All the evidence of that transaction was admitted without objection, except what the county attorney told the defendant with respect to the result of the former’s interview with the judge. Such transaction of which such conversation between the county attorney and the defendant was a part was itself relevant and admissible. For the effort made, or the willingness shown, by the defendant, after he had admitted that he had had carnal knowledge of the body of Madge Morey, and that Grace Greene, a woman other than Madge Morey, was his wife, to have the charge of adultery reduced to that of fornication, and to be permitted to escape by the payment of a fine, was not consistent with innocence but with guilt. And it is a familiar rule that, where a part of a conversation or transaction relative to a subject under judicial investigation is admissible, all that forms a part of that conversation or transaction, together with the circumstances surrounding the persons engaged in it, are competent to go to the jury for the purpose of enabling them to assign the proper and just effect of the admission or admissions made in the course of the conversation or transaction.

Other questions are also raised and discussed by counsel, but we think they are without merit.

We are of the opinion that the judgment of the court below ought to be affirmed. Such is the order.

FETCH, J., concurs.