State v. Distefano , 70 Utah 586 ( 1927 )

I concur, with this observation. It undoubtedly is true that the state in the first instance is not bound by or confined to the exact date stated in the information. It may elect to prove the charged offense at any time prior to the filing of the information and within the statute of limitations; but when the prosecution makes an election, then as was said in the Michigan cases cited and approved by this court in State v. Hilberg,22 Utah 27, 61 P. 215:

"What had, till then, been floating and contingent, had now become certain and fixed. The prosecutor had made his election, and could not elect again; nor could he be allowed to prove any other act of the kind as a substantive offense upon which a conviction might be had in the cause. The information could be used as a dragnet only till the first act had been entangled in its meshes; every other act must be allowed to escape this throw of the net; and thenceforward the evidence must be aimed at this act. If others of the same kind lie in the same range, they can only be noticed for a secondary purpose, as they may be connected with or bear upon this."

And, as further stated by Judge Cooley in one of the cited Michigan cases (People v. Clark, 33 Mich. 112), after an election, the prosecution could not "show subsequent acts as corroborating testimony, as they would have no such tendency. Proof of previous acts of sexual intercourse would tend to show a much greater probability of the commission of a similar act charged to have occurred subsequent thereto, but the converse of this proposition would not be true, as the proof of a crime committed by parties on a certain day could have no tendency to prove that they had, previous thereto, committed a similar offense." So said this court in the Hilberg case. And so was it said in State v. Sheffield, 45 Utah 426, 146 P. 306. Thus, the authorities teach that in anchoring its case the state many cast its anchor at any time prior to the filing of the information and within the statute of limitations; but when it once has anchored it, its roaming and wandering over the statutory period of limitations ceases, and while for secondary purposes may still show similar prior acts, but may not show acts subsequent thereto. The state here at the threshhold of the case elected to anchor its case to a sexual act committed September 8th.

Thus, in such view, I think the charge abstractly considered is erroneous. But in view of the record and of the charge looked at as a whole I do not think the error harmful. By the charge, set forth in the main opinion, it will be observed that the court told the jury that the accused was on trial only for a sexual act alleged to have been committed on the 8th of September, and could not be convicted of any other. Then the court with unusual particularity and in minute detail further identified the act, not only as having been committed on September 8th, but as an act committed not near or in proximity to, but "across, an irrigation ditch," and near, not a tree or a small tree, but a "big tree," and not east nor west nor north, but "south, of the house of the complaining witness." Then the court charged that if the jury found an act of sexual intercourse was committed across the ditch, near a big tree, a short distance south of the home of the prosecutrix, it was immaterial whether that act was committed on the 8th or the 15th of September. Now, is the evidence showed that two acts were committed, one on the 8th and the other on the 15th, at the described place or elsewhere, the charge would be harmful, for in such case under the charge, the jury might have found the defendant guilty of the act committed September 15th, which, because of the election, they legally could not do, or some of the jury in such case might have voted for a conviction because the defendant committed an act on the 8th and others because he committed one on the 15th, and hence there would be no unanimity of the jury. But on the record I do not see any evidence to show that a sexual act was committed by the parties on the 15th. With all the evidence of the state showing that the act was committed on September 8th and the defendant denying he had any sexual relation whatever with the prosecutrix, it may not be assumed that the jury convicted the defendant of an act other than the act committed on September 8th.

I thus do not see any prejudicial error in the charge, and therefore concur in an affirmance of the judgment.