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not paid within 30 days after the transcript
after the transcript | Laws of 1899, p. 51, c. 31, providing that an was received by the clerk. This provision
information shall charge but a single offense, of the statute was evidently intended to in
the continuendo being mere surplusage. sure promptness in the filing of the papers
3. ADULTERY-ELEMENTS OF OFFENSE-CON
TINUANCE. in cases appealed in order that such cases Adultery is not a continuous offense, but may be brought to trial in the district court each act of adultery constitutes a separate of without unnecessary or unreasonable delay. If the rule contended for by appellant should
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 1, Adultery, $ 1.) obtain, the party appealing would have it in
4. SAYE-EVIDENCE--OTIIER ACTS OF ADULhis power to either indefinitely postpone the
TERY. trial of the case in the district court or force Where an information charged adultery the respondent to file the papers in that
committed on February 13, 1905, the state was
not limited to proof of adultery committed on court and pay the advance fee required by
that date, but was entitled to introduce proof law, and thereby, in effect, nullify the pro of an adulterous act committed on February 1, visions of section 3750 under consideration.
1905. Appellant's further contention that the [Ed. Note.-For cases in point, see Cent. Dig. payment by respondent of the advance fee
vol. 1, Adultery, $ 30.] when he filed bis motion to dismiss was a 5. SAME. voluntary payment on his part and a waiver
In a prosecution for adultery with a woman
alleged to have never been married, evidence of of his right to have the appeal dismissed is
a physician who had examined ter on the day entirely without merit. The law provides of the trial that she was about eight months in that this fee must be paid in advance and pregnancy and that, in his judgment, concepthe clerk is prohibited from filing the papers
tion took place in the early part of the previous
February was competent to corroborate prosein appeal cases until it is paid. Appellant
cutrix, and show that a crime had been comhaving failed to file the papers with the mitted, thongh it did not indicate that defendclerk of the district court and pay the ad
ant participated therein. vance fee therefor, respondent, in order to
6. SAME-SUBSEQUENT ACTS.
Where, in a prosecution for adultery, the get a hearing on his motion to dismiss, was
information charged the adulterous act to have compelled to pay the fee and have the papers been committed on February 13, 1905, but filed, therefore, we fail to see how a payment the state elected to prove an act of adultery made under these circumstances can be con
committed on February 1st of that year, evi
dence of a physician who had examined prosestrued to be a voluntary payment in the sense
cutrix that, in his judgment conception took contended for by appellant, or a waiver of his place during the early or middle part of Februright to have the appeal dismissed. For ary, justified an inference by the jury that
conception took place on or about the 1st of aught that appears in the record, the failure
February, and was therefore not objectionable to file the papers and pay the advance fee
as necessarily tending to prove another subsein this case was due solely to the negli quent adulterous act. gence of appellant, at least there is no ade [Ed. Note.--For cases in point, see Cent. Dig. quate excuse offered as to why these things vol. 1, Adultery, $ 30.] were not done within the time the law re 7. CRIMINAL LAW - TRIAL - CONTRADICTORY
INSTRUCTIONS. quires they shall be done. Under these cir
In a prosecution for adultery the court cumstances, we do not think it was an abuse
charged that if the jury believed beyond a of discretion on the part of the court in reasonable doubt that prosecutrix was pregnant, dismissing the appeal.
they should consider such fact in connection The judgment is affirnied with costs.
with other evidence as tending to connect defendant with the crime or corroborate prose
cutrix's testimony, but that such pregnancy was STRAUP and FRICK, JJ., concur.
not of itself any evidence that defendant had had sexual intercourse with prosecutrix. Held
that such instruction was objectionable as (31 Utah, 228)
contradictory. STATE . THOMPSON.
Rev. St. 1898, § 4862, provides that a (Supreme Court of Utah. Nov. 19, 1906.)
conviction shall not be had on the testimony of 1. ADULTERY - INFORMATION ELEMENTS OF an accomplice unless he is corroborated by other OFFENSE.
evidence, which in itself, and without aid of An information alleging that defendant, the accomplice's testimony tends to connect the a married man, on February 13, 1905, and on defendant with the commission of the offense, divers other days thence continuously, between etc. Hcld, that an instruction in a prosecution February 13, 1905, and August 1, 1903, com for adultery that the jury should consider the mitted adultery with J., an unmarried woman, fact of prosecutrix's pregnancy as tending to charged sufficient facts to constitute the crime connect defendant with the crime or corroborate of adultery as defined by Rev. St. 1898, 8 4210. her testimony, was erroneous, and was not cured 2. INFORMATION-DUPLICITY.
by a subsequent clause that such fact was in An information for adultery alleged that
itself insufficient to show that defendant had defendant, a married man, on February 13,
intercourse with her. 1905, and on divers other days thence continu 9. CRIMINAL LAW-INSTRUCTIONS — REASONously between such date and August 1, 1905, ABLE DOUBT. committed adultery with J., an unmarried wo An instruction that a reasonable doubt man. Held, that the information did not suffi is not a mere possible doubt, but a fair doubt, ciently charge an ofïense committed on any other growing out of the evidence or lack of evidence, date than February 13, 1905, and was therefore and exists when each juror is unable to say not objectionable for 'duplicity in violation of that he has an abiding conviction to a moral Rev. St. 1898, § 4734, as amended by Session certainty of the truth of the charge, etc., was
not objectionable as in effect charging that ment, to be adequate, must allege a day and such doubt exists only when all the jurors have year on which the offense was committed a reasonable doubt.
It is inadequate to charge an offense commit[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, 881904–1922, 1940.]
ted at some indefinite time between two 10. SAME-APPEAL-PREJUDICE.
specified days. The information charged an Where, in a prosecution for adultery al
offense committed on a specified day and leged to have been committed in February, year, the 13th day of February, 1905. It 1905, defendant as a witness in his own be did not sufficiently charge another offense half, testified that he was then a married man,
committed on another specified day and year. living with his wife and children, he was not prejudiced by the alleged erroneous admission It only charged an offense committed at of a marriage certificate without evidence show some indefinite time between two specified ing the identity of the parties.
days. But such an allegation is inadequate 11. MARRIAGE EVIDENCE.
to charge an offense. If a count attempts to A marriage may be proved, not only by the marriage certificate or a certified copy of
charge two or more offenses, yet, but one of the record, but also by the person who perform
them sufficiently, the information is not ed the ceremony, by a person who witnessed it, double; to be so, it must have complete averby cohabitation and other circumstances, and
ments of not less than two. Had the inby admissions. [Ed. Note.--For cases in point, see Cent. Dig.
formation charged two adulterous acts comvol. 34, Marriage, $$ 70–78.]
mitted on two separate and specified days, 12. SAME-IDENTITY OF THE PARTIES.
then it could be said two offenses had been Where a marriage is sought to be estab- | charged.
charged. But this information does not so lished by a marriage certificate or a certified charge. Under it, the defendant could be copy of the record, there must be some evidence showing the identity of the parties.
convicted of but one offense. The allegation 13. SAME.
that the defendant committed the offense at Where a marriage is sought to be proved
an indefinite time on divers days between by the marriage certificate, evidence that the two specified days does not charge any of real name of one of the parties differed from the name stated in the marriage certificate was ad
fense, and may be rejected as surplusage. missible.
The allegation that the offense was commitMcCarthy, C. J., dissenting in part.
ted on a certain day and thence continually
between certain days, charges but one of Appeal from District Court, Millard Coun
fense, because the day of another offense ty; Joshua Greenwood, Judge.
committed is not sufficiently specified. Each Axel Thompson was convicted of adultery,
act of adultery constitutes a separate offense. and he appeals. Reversed. New trial grant
Adultery is not a continuous offense. A coned.
tinuando is not necessary unless for an esRay Van Cott, for appellant. M. A. Bree sentially continuous offense. When an inden, Atty. Gen., for the State.
formation sufficiently charges an offense, not
essentially continuous, committed on a specSTRAUP, J. 1. The defendant was con ified day and year with an unnecessary convicted of adultery, and appeals. It was al tinuando, the continuando does not injure leged in the information that the defendant, the information, but may be rejected as sura married man, "on the 13th day of Feb plusage. The views herein expressed are ruary, 1905, and on divers other days, and supported by the following authorities: State thence continually between the said 13th day v. Briggs, 68 Iowa, 416, 27 N. W. 358; People of February, 1903, until the 1st day of Au V. Adams, 17 Wend. (N. Y.) 475; State v. gust, 1905," committed adultery with Tora Nichols, 58 N. H. 41; Cook v. State, 11 Ga. Jensen, an unmarried woman. To this in 53, 56 Am. Dec. 410; Wharton, Crim. Pl. & formation a demurrer was filed on the Pr. (9th Ed.) § 125;
Ed.) § 125; Bishop's New Crim. . grounds that no offense was alleged, and that Proc. 88 395-396–440. While the form of more than one offense was charged. It is this pleading is not to be commended, yet, urged that instead of charging adultery there for the foregoing reasons, we are of the opin is charged the crime of living in a state of ion that the information is not open to the adultery, which is not a crime under the Pen objection of duplicity. No error was commital Code. It is true that living in a state of ted in overruling the demurrer. adultery is not made an offense by statute, 2. Over appellant's objection the state was The information, however, charges sufficient permitted to give evidence of an adulterous facts to constitute the crime of adultery as act committed on the 1st day of February, defined by section 4210, Rev. St. 1898. 1903. It was as to that day and as to that offense of adultery committed on a specified offense that the case of the state, was direct. day and year is charged. Whether the in ed. It is claimed by the appellant that the formation is open to the objection of duplicity state could not allege an offense committed is more serious. Section 4734, Rev. St. 1898, on the 13th day of February, and prove an as amended by chapter 31, p. 51, Sess. Laws, offense committed on the 1st day of February. 1899, provides that an information or in The contention made is fully answered dictment must charge but one offense. It is against appellant in the cases of State v. urged by appellant that by this information Woolsey, 19 Utah, 486, 57 Pac. 426, and State more than one offense of adultery is charged. v. Hilberg, 22 Utah, 27, 61 Pac. 215, where the We think not. Every information or indict- | matter is fully discussed.
3. The case was tried on the 15th 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 prosecutrix, 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 toman, the fat 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. 28; People v. Goodwin, 132 Cal. 368, 64 Pac. 561; State v. Wickliff, 93 Iowa, 386, 61 X. W. 282. From the pregnant condition of the pros. ecutrix and the period of gestation as descrihed 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 crine 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 prosecu
trix, 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, Rev. St. 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 connect 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 accomplie "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 prosecutrix 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 case which is admissible only for a certain purpose, and inadmissible for other purposes to which the jury unaided may improperly 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 pos
sible 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 reasou 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 clo not think the instruction is open to such meaning. We think the fair and ordinary meaning of the instruction is that it reasonable doubt exists when each juror is unable to say that he has an abiding (onviction 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 predicateil of all the individuals considereil distributively or one by one." (Standard Dict.) It denotes or refers to every one of the per.Nons mentioned. Every one of any number 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 in abiding conviction to a moral certainty of the truth of the charge, a realsonable 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 defendint than is the law. For that, in case any one of the jurors is unable so to say, not only would it aftord a basis for the existence of 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 he 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 evi(lence, 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 crrel in admitting in evidence a milrriage certificate showing a marriage between Ixtel J. Thompson and Annie Skeen. The defendant's true name is Axel J. 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 identitied. It was shown by the testimony of a minister that about 11 years ago he married the defendant and Annie Skeen, and that they from thence on to and including the month of February, 1903, 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 name before the marriage was Innie 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 committeil error in admitting in evidence the marriage certificate. The marriage of the defendant to il 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 bimself. A marriage may be proven not only by the marriage certificate, or a Certified copy of the record, but ilso by the Derson 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.
Because of the error in the charge heretofore pointed out, the judgment of the court below is reversed, and a new trial granted.
FRICK, J., concurs.
MCCARTY, C. J. (concurring in part and that the giving of the instruction complained dissentiug in part.) I concur in the reason- of was crror. For it will be observed that ing of my Bretliren and in the conclusions the word "euch" performs exactly the same reached by them in the foregoing opinion on functions and means the same thing in the all questions therein discussed, with the ex one instruccion that it does in the other, ception of the part wherein they hold that namely, it refers to all the jurors considered the trial court did not err in its instruction one by one. “Each denotes every one of defining a reasonable doubt. On this point two or more comprising the whole.” 10 Am. I am unable to concur.
& Eng. Enc. Law (20. Ed.) 392. In 14 Cyc. The law is too well settled to admit of
1129, the word "each" is defined as follows: discussion, that before a defendant in a (rimi
"Every one of any number separately connal action can be legally convicted his guilt
sidered, or every one of several. Commonly inust be established by competent evidence
the word is understood to mean every onc beyond il reasonable doubt; and if any one
of the two or more individuals comprising of the jurors, after a fair and impartial (on
the whole considered separately from the
rest." The italics are mine. sideration of all the evidence in the case, entertains a reasonable doubt as to defend
Mr. Justice STRAUP, in the course of the ant's guilt he cannot be convicted. The part
opinion, after discussing the meaning and of the instruction upon which error is based,
functions of the word "each," says: "So, conSo far as material here, is as follows: "A
struing the language, the instruction means reasonable doubt * * * exists when each
unless eah and every one of the jurors, all juror * * * is unable to say that he has
of them are able to say that he has an abidan abiding conviction to a inoral certainty
ing conviction to a moral certainty of the of the truth of the charge.” In the course
truth of the charge, a reasonable doubt ex
ists." The instruction, so far as material of the prevailing opinion it is said: “While true, so long as any one of the jurors en
here, reads: "A reasonable doubt * * *
exists when each juror tertains a reasonable doubt the defendant
is unable cannot properly be convicted. * * * But
to say." etc. That is to say (adopting the the court in effect charged the jury that if
language of the prevailing opinion) when any one of them is ur able to say that he has
"each and every one of the jurors, all of an abiding (onviction, etc.. then not only
them," are unable to say that they have an does there exist a reasonable doubt as to
abiding conviction to a moral certainty of
the truth of the charge a reasonable doubt him, but also as to all the jury.” I am unable to so construe the instruction. The language
exists. It seenis clear to me that if the
word "each" includes all the jurors, both of the trial court is: "When each juror is
in an individual and collective sense, when unable to say,” etc., and not when any juror
used in an instruction which affirmatively is unable to say that he has an abiding con
states the law on the question of reasonable viction, etc. Nor can "any” be substituted in the instruction for "each," without giving it
doubt, it must of necessity mean the same
thing when used in an instruction which an entirely different meaning from that which
states the law in a negative sense. But asit now conveys. The oflice and functions of the word "each," as used in the instruction,
suming, for the purposes of this case, that are entirely different from the meaning of
according to strict grammatical construction
the word "each," as used in the instruction, the word "any when it is similarly used and associated. “Each," as used in the instruc
means any one or more of the jurors, and
does not refer to or include all, I still intion, denotes every one of the jurors taken or considered one by one, whereas "any"
sist that the instruction, couched as it is in refers to any one or more of a given number
a negative form, is well calculated to conless than the whole. Therefore, as I (01
fuse and mislead the jury, and therefore
ought to be condemned. strue the instruction, the jury were in effect told that a reasonable doubt exists only when
(31 U'tab, -11) each one of the eight jurors constituting the panel is unable to say that he has an abiding ECCLES LUMBER CO. v. MARTIN et al. conviction to a moral certainty of the truth (Supreme ('ourt of Utah. Nov. 14, 1906.) of the charge. That is, all the jurors must 1. MECIIASICS' Liexs--PROPERTY SUBJECT TO be in this state of mind before a reasonable
I'nder Rer. St. 1898, tit. 39, c. 1, entitled doubt exists.
"Mechanics' Liens," rating mechanics' liens, It will no doubt be conceded that the gir and providing for the enforcement thereof, etc., ing of the following instruction would not a mechanic.'s lien attaches to land, and, unless have been error: "When each juror, after
the person against whom the claim is made has
some estate in the land on which the improvea fair and impartial consideration of all the ment is made, no lien attaches either to the evidence in the case, is able to say that
land or the improvement. he has an abiding conviction to a moral (er
TEd. Note.--For cases in point, sce Cent. Dig.
vol. 34. Mechanics' Liens, $ 309.) tainty of the truth of the charge, then you are convinced beyond a reasonable doubt."
2. SAVE-CONTRACT BY OWNER OR AGENT
NECESSITY. Now, if this instruction correctly states the
A contract, express or implied, for an imlaw as far as it goes, it necessarily follows provement on land must have been made with