The defendant was convicted of the crime of adultery in the district court of Duchesne county and sentenced to an indeterminate term of imprisonment in the state prison, from which judgment he appeals.
The complaint before the justice of the peace upon which the preliminary examination was held alleged that the defendant — *Page 56
"unlawfully, willfully, and feloniously did commit the crime felony as follows, to wit, the said Gordon Anderton did then and there wilfully, unlawfully, and feloniously, with force and violence, ravish and carnally know and have sexual intercourse with the said Shirley Goff, who was then and there not the wife of the said defendant, and without her consent and against her will and resistance, and overcoming her resistance with force and violence," etc.
It thus appears that the complaint before the justice of the peace charged in appropriate language the crime of rape, as defined in the statute. Comp. Laws Utah 1917, § 8105.
The defendant was held to answer to the district court. The District Attorney filed an information in the case the charging portion of which reads as follows:
"The said Gordon Anderton, on or about the 15th day of May, A.D. 1925, at the county of Duchesne, in the state of Utah, willfully, unlawfully, forcibly, and feloniously in and upon one Shirley Goff, a married female person, who was not then and there the wife of the said Gordon Anderton, violently and feloniously did make an assault, and her the said Shirley Goff, then and there, and at the time and place aforesaid, feloniously did ravish and carnally know and accomplish with her an act of sexual intercourse by force and violence and against her will and resistance, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Utah."
The only substantial difference between the complaint and the information is the fact that in the information it is alleged that the victim of the assault was a married woman. This difference, however slight it may appear to the casual reader, constitutes the bone of contention on this appeal. By injecting into the information the fact that the female assaulted was a married woman, an element was introduced not essential to the crime of rape, but was essential to the crime of adultery. Comp. Laws, supra, § 8088. It must therefore be conceded that the information charges two offenses — rape and adultery — for the latter of which defendant did not have a preliminary examination, as provided in the State Constitution, art. 1, § 13. *Page 57
But it is admitted by counsel for defendant that defendant waived a preliminary examination for the crime of adultery by not moving to quash the information. The 1 right to waive a preliminary examination is provided for in the section of the Constitution above referred to. See also, Comp. Laws, supra, § 8880.
Notwithstanding the waiver of a preliminary examination for adultery, the defendant had the right to interpose a special demurrer to the formation on the ground that it charged more than one offense. Comp. Laws, supra, § 8889, subd. 8. Certain offenses may be joined in separate counts, as provided in section 8834, but rape and adultery are not included in the list. Defendant, however, did not file a special demurrer on 2 the grounds of duplicity, or at all, but sought to raise the objection after a plea of not guilty, and after the jury were impaneled and sworn to try the case. His counsel then objected to any evidence being received in support of the information unless the state would elect upon which charge it would try the defendant — whether for rape, or for adultery. If the state elected to try the defendant for rape, defendant was ready for trial; if for adultery, defendant had not had a preliminary examination and would insist upon his demurrer to the evidence. Such was the contention of the defendant, in the course of the coloquy between counsel and the court.
If the information states a public offense, no matter how informal or inartificial, it is clear, on elementary principles, that defendant could not object to the 3 admission of evidence after he had pleaded not guilty and the jury had been impaneled and sworn. The defendant was then in jeopardy.
The objection as to duplicity urged by defendant, together with his motion to compel the state to elect, might all have been disposed of by the interposition of a special demurrer before pleading to the issue of fact. That would have been an orderly procedure and is clearly contemplated by the Code. The district attorney, however, announced *Page 58 that he would elect to proceed on the charge of rape, reserving his contention that the crime of adultery was included. That the crime of adultery, as well as rape, is included in the information is an undisputed fact. That every element necessary to constitute either crime is set forth in the information in unmistakable language must also be conceded. So that we have before us a clear-cut case, in which two distinct offenses are alleged in the information.
It cannot be successfully contended that the crime of adultery is necessarily included in the crime of rape. It is not like murder, which includes all the lower degrees of unlawful homicide, or grand larceny, which includes petit larceny, or rape which includes attempt to commit rape, 4 assault with intent to commit rape, simple assault, and, with proper averments, may include battery. There are instances in which the higher crime is divided into degrees, the lower degrees being included in the higher. It is in cases of this kind that the court is required to instruct the jury:
"When it shall appear that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he must be convicted of the lowest of such degrees only." Comp. Laws, supra, § 8979.
The trial court, in its instructions to the jury, applied that principle to the instant case and instructed the jury that if they found the defendant guilty of either rape or adultery, but were not satisfied as to which he was guilty, it would be their duty to find him guilty of adultery.
The court, in another instruction, instructed the jury that the crime of adultery was included within the crimes charged, in the information and submitted to the jury blank forms of verdict — one for rape, one for adultery, and one, not guilty.
These instructions are assigned as error. Appellant's contention is that the crime of adultery is not included in the crime of rape, and therefore the conviction for adultery *Page 59 was contrary to law. The state's contention is that the crime of adultery is included in the crime charged in the information, and hence the verdict was not contrary to law. Both sides quote and rely on Comp. Laws Utah 1917, § 9025, which reads:
"The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense."
Because of the conflicting views of the parties, it becomes necessary to interpret the meaning of the section last quoted; not that it is controlling in the instant case, for reasons hereinafter stated, but because it may affect cases arising in the future.
The writer is unable to concur in the views of the Attorney General that the section last quoted means that the district attorney may insert words in an information wholly unnecessary to the principal crime charged, and thereby 5 charge another offense and insist upon a conviction for such offense, merely because it was included in the information. While such an interpretation may be within the words of the statute, in my opinion, it is nevertheless a plain perversion of its meaning and clearly contrary to fundamental principles.
The district attorney elected to charge the defendant with the crime of rape. Such is the name given by him to the crime in the prelude to the charging clause of the information. Therefore the question is, Is adultery necessarily included in the crime of rape, as defined by the statute? In other words, Is adultery a lower degree of the crime of rape, or necessarily included within it? It certainly is not a lower degree of the crime of rape nor is it necessarily included within it. Any other interpretation of the statute might lead to the gravest kind of abuse and justify the district attorney in charging in the information offenses wholly incongruous and not necessary to the principal offense charged. *Page 60
The Attorney General calls our attention to two cases decided by this court, upon which he relies: State v. McDonald,14 Utah, 173, 46 P. 872, and State v. Jukanovich, 45 Utah, 372,146 P. 289. In the McDonald Case the defendant was charged with the crime of assault with intent to commit murder with a deadly weapon, to wit, a revolver, etc. He was found guilty of an assault with intent to do bodily harm. The validity of the judgment was challenged on appeal to this court, and the objection made that the necessary elements of the crime were not alleged in the indictment. While this court, by a process of reasoning with which I cannot agree, held that the indictment sufficiently charged the offense of which the defendant was convicted, I nevertheless agree with the conclusion that by proper averment assault with a deadly weapon with intent to do bodily harm is necessarily included within a charge of assault with a deadly weapon with intent to murder. If the principal crime alleged was committed by means of a deadly weapon, it was perfectly proper to allege that a deadly weapon was used. It was descriptive of the offense charged and not mere surplusage, as was the information in the instant case that the female named was a married woman. The Jukanovich Case, supra, was a case somewhat similar to the McDonald Case, as far as the offense is concerned. There is nothing said in the opinion in the least derogatory to the views herein expressed; in fact, there is much said in conformity therewith.
Although an offense may not be formally divided into degrees by the statute, yet where the principal offense is properly described by a "statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended," as provided in Comp. Laws, § 8830, I am of opinion that conviction may be had for any offense necessarily included in the principal offense charged. But the insertion of mere surplusage for the sole purpose of charging an additional offense should not be permitted.
The case of State v. Hooks, 69 Wis. 182, 33 N.W. 57, 2 Am.St.Rep. 728, cited by appellant, is illuminating upon *Page 61 this point. In that case, as in the case at bar, the defendant was informed against for rape. The information alleged that the female ravished was a married woman. The trial court was of opinion the evidence did not justify a conviction for rape and permitted a finding by the jury that the defendant had had carnal knowledge of the body of the female, she being a married woman, but without force and not against her will. Upon this verdict the court suspended sentence and certified the case to the Supreme Court on two questions, one of which was, "Can the court sentence the defendant for the crime of adultery upon the information and verdict?" In passing upon this question, the Supreme Court of Wisconsin says:
"Under the decisions of this court, we are of the opinion that the defendant cannot be sentenced for the crime of adultery upon his trial upon an information for rape. It is very clear that the information for rape would have been sufficient without alleging that the female upon whom the offense was committed was a married woman. The statute defines the crime of rape in the following language: `Any person who shall ravish and carnally know any female of the age of ten years or more, by force and against her will, shall be punished in the state's prison not more than thirty years, nor less than ten years.' Under this act, the fact that the female is a married woman is wholly immaterial, and the words in the information alleging that she was a married woman are mere surplusage, and the defendant might have been convicted of the rape charged, if the evidence was sufficient, without proof of the fact of the marriage of the female upon whom the rape was committed.
"In an information charging the defendant with rape, there is no necessity for alleging that the female upon whom the offense was committed was married, and consequently there is no necessity for proving that fact on the trial. An information for rape does not necessarily charge facts showing that the defendant had committed adultery. It would not be urged that the defendant could have been convicted of adultery had the information omitted to state that the female was a married woman, or that the defendant was a married man, and yet, in that case, the information would be good as an information for rape.
"May the state, by alleging matters wholly immaterial to the description of the crime charged against the defendant compel him to *Page 62 come to trial prepared to contest any issue which the state is not bound to prove in order to convict him of the offense charged? We think not."
The court then refers to the fact that Massachusetts has held otherwise, citing Commonwealth v. Squires, 97 Mass. 59, 61, in which it was held that a defendant charged with the crime of rape, it being alleged that he was a married man, might be convicted of the crime of adultery. The Wisconsin court criticizes the decision of the Massachusetts court in the Squires Case and says:
"With all proper respect for the opinion of the learned court which made the above decisions, we think the rule adopted by this court in [citing cases] is the better rule, and that a defendant charged with one crime cannot be convicted of another and different crime, unless the allegations necessary to constitute the greater crime charged in the indictment or information are also sufficient to constitute the lesser crime."
The state, in the instant case relies on the Squires Case, supra, and also cites Commonwealth v. Drum, 19 Pick. (Mass.) 479, and Commonwealth v. Moses Goodhue, 2 Metc. (Mass.) 193. The Drum Case is not in point because the defendant charged with rape was convicted of assault and battery, which was clearly included in the charge of rape. The Goodhue Case is in point because the indictment charged defendant with ravishing his daughter, and he was found guilty of incest.
It is important, however, in this connection to refer to the Massachusetts statute under which these convictions were had. The statute reads as follows:
"When a person indicted for a felony is on trial acquitted by the verdict of part of the offense charged, and convicted of the residue, such verdict may be received and recorded by the court, and thereupon the person indicted shall be adjudged guilty of the offense, if any, which appears to the court to be substantially charged by the residue of the indictment, and shall be sentenced and punished accordingly." (Rev. St. Mass. 1836, c. 137, § 11.) *Page 63
It is contended by the state that this statute is substantially the same as the Utah statute (section 9025) under review. In the opinion of the writer, the statutes are clearly distinguishable. In the Utah statute, the lower offense of which a defendant may be convicted must be one that is necessarily included in the principal offense charged. The Massachusetts statute seems to contemplate carving two offenses out of one, without contemplating that one should be necessarily included in the other. Under such a statute, it is possible the Massachusetts cases can be sustained. The Wisconsin court, however, under a statute substantially similar, as we have seen, held otherwise.
The state also cites Commonwealth v. Parker, 146 Pa. 343,23 A. 323, in which it was held that under a charge of rape a defendant might be convicted of fornication. The opinion in the case is per curiam and exceedingly brief. It refers for authority to Commonwealth v. Lewis, 140 Pa. 561, 21 A. 501. In that case the defendant was indicted upon three counts, the first for assault and battery, the second for assault with intent to ravish, and the third for a felonious assault upon a woman child under 16 years of age, charging that defendant did then and there feloniously and unlawfully carnally and unlawfully know and abuse the female named, and upon her body did beget a male bastard child, etc. The defendant was convicted of fornication and bastardy. On appeal to the Supreme Court, the conviction was sustained under the authority of a statute expressly authorizing it.
The decisions of other courts under statutes differing from ours are in no sense controlling. It is our duty to interpret our own statutes and give to them such effect 6-7 as we think, from the language used and the purpose in view, the Legislature must have intended. We are satisfied that the clear meaning of the language employed in section 9025 is that a defendant should not be convicted of a lower offense under an indictment or information charging a higher offense, unless the lower offense is necessarily included in the higher offense. *Page 64
But this conclusion does not necessarily require a reversal of the judgment. The conviction was not fatal merely because the information charged two offenses. As we 8 have before stated, the information was subject to objection upon that ground, if the objection had been raised by special demurrer. But no special demurrer was interposed. The objection was thereby waived.
In People v. Garnett, 29 Cal. 622, the Supreme Court of that state, after stating that two offenses could not be properly charged in the same indictment, at page 626 said:
"When, however, both offenses are stated in the same indictment, the objection must be taken by demurrer, or it will be deemed waived, and a verdict of guilty of either offense will not be disturbed on that ground. In the present case, the objection was not taken by demurrer, but on motion in arrest of judgment, which was too late, as we held in Shotwell's Case,27 Cal. 394."
In the Shotwell Case, cited in the excerpt just quoted, paragraph 4 of the syllabus reads:
"If there is more than one offense charged in the indictment, the defect should be taken advantage of by demurrer. If the objection be not taken by demurrer, it cannot be considered on motion in arrest of judgment."
In State v. Toy, 65 Mont. 230, 233, 211 P. 303, at page 304, the court says:
"At the opening of the testimony the defendant sought to challenge the information by objection to the receiving of any testimony on the ground that said information set forth more than one offense. This objection can only be taken by demurrer [citing the statute] and when not taken before plea is waived" (citing cases).
See, also, Lyttle v. Comm., 195 Ky. 729, 243 S.W. 1037;State v. Pierson, 101 Wn. 318, 172 P. 236.
The same rule obtains in most of the other jurisdictions of the country. Hence we concluded from our examination of the cases that, however irregular it may have been to *Page 65 try the defendant upon an information charging two distinct offenses, where one was not necessarily 9 included in the other, yet as no seasonable objection was made before a plea of not guilty was entered, defendant should not be heard to complain on the ground that the information charged two offenses. Besides this, there is another feature of the case to which attention should be called before concluding the opinion. While the evidence taken at the trial is not before us, the following instructions given to the jury, which was not objected to by the defendant, indicates the nature of the defense relied on.
"You are instructed that the defendant denies that he committed an assault of any kind upon the prosecuting witness. He admits that he had sexual intercourse with her at the time and place alleged, but insists that such intercourse was had with her consent, and not by force or against her will."
Other portions of the instruction are omitted as immaterial. This admission of the defendant, together with proof of marriage, which the jury must have found, is conclusive of the fact that he committed adultery.
It is contended, however, that in preparing the information the district attorney inserted the words "a married female person" evidently for the purpose of describing the female assaulted, and that, as such words were not essential in charging the crime of rape, the words so inserted were merely surpulsage and formed no part of the information charging the offense of rape. State v. Hooks, supra, is relied on. We are not informed what the attitude and conduct of the parties litigant were during the trial of the Hooks Case, but do know that in the case at bar the defendant contended that the information charged two offenses — rape and adultery — and the district attorney who drew the information made no contention that the words in question were surplusage. He claimed the right to insert them for the purpose of convicting defendant of adultery, in the event that he failed in the proof of rape. The trial court also understood that adultery, as well as rape, was charged in the information, *Page 66 and the case was tried on that theory. If such proceedings as these occurred in the Hooks Case during the trial, then we do not approve of the decision of the appellate court in that case, notwithstanding we have cited it for another purpose.
We proceed then upon the theory hereinbefore stated — that the information charges two offenses — rape and adultery; that the information is therefore duplicitous; and that the objection thereto should have been made by special 10 demurrer. In opposition to this theory, the contention is made that the information is not duplicitous because the alleged offenses were committed at the same time and place and are all parts of the same transaction. The following authorities are cited: Waters v. People, 104 Ill. 544; Cornell v. State,104 Wis. 527, 80 N.W. 745; 14 R.C.L. 197; 31 C.J. 771; Smith v.State, 186 Ind. 262, 115 N.E. 943; notes to Ben v. State, 58 Am. Dec. 239; State v. McNay, 100 Md. 622, 60 A. 273; and 21 R.C.L. 454. I cannot agree with the contention of my associate as broadly stated, nor am I convinced that the authorities cited support the contention, as applied to the instant case.
In Cornell v. State, supra, the correct rule, as I understand it, as applied to a case of this kind, is tersely stated at page 532 of 104 Wis., and at page 746 of 80 N.W., as follows:
"Duplicity consists in alleging two independent crimes in the same count of an information or indictment; and if those crimes be distinct, to the extent at least that different defenses may be interposed as to each or different evidence may be necessary as to them, the accused has a right to object and insist on their severance."
It will not be disputed that different defenses may be interposed to each of the crimes alleged in the information here, and different evidence is undoubtedly necessary to sustain the charge as to each. To this may be added, as held in many cases, that a different penalty is prescribed for each and each is created by a different statute. In 21 R.C.L., also cited and relied on, at page 454, the author says: *Page 67
"One of the common-law rules of pleading which tends to produce singleness or unity in the issue is that pleadings must not be double. This rule applies to both the declaration and the subsequent pleadings, and its meaning with respect to declarations is that a declaration must not, in support of a single demand, allege several distinct matters by any one of which that demand is sufficiently supported. A declaration is double within this rule where it joins in one and the same count different grounds of action of different natures or all of the same nature, to enforce a single right to recovery; or where it is based on different theories of the defendant's liability; or where the matters alleged are otherwise inconsistent and repugnant."
In the note to Ben v. State, supra, at page 240 of 58 Am. Dec., many illustrations are given of informations or indictments bad for duplicity. The cases are too numerous to cite and comment upon, but the reader will find that many of them are analogous in principle to the case at bar.
The further contention is made that, inasmuch as the district attorney elected to try the defendant upon the charge of rape, the charge as to adultery, if there was such a charge, was therefore abandoned. 31 C.J. 792, and 14 R.C.L. 11 188, are cited and relied on. In C.J., supra, it is said, in effect, that the election to proceed upon one count operates as a dismissal or a nolle prosequi of the remaining counts. The rule is discussed by the author as applying where there are two or more counts, not where there are two or more offenses charged in the same count. As to these it would seem, on principle, that the remedy is by special demurrer on the grounds of duplicity. But, assuming, without deciding, that the rule applies to a single count charging two or more offenses, still the rule cannot apply in the instant case because there was manifestly no abandonment of the charge of adultery. All the parties, including the court, understood that the charge of adultery was not abandoned, but expressly reserved. The rule announced in C.J., supra, not only applies as between counts in an information or indictment rather than between two or more offenses in the same count, but it likewise contemplates an unqualified abandonment or dismissal of all other *Page 68 counts. In such cases, we have no fault to find with the rule. The rule announced in R.C.L., supra, is generally to the same effect as the rule in C.J. which we have just considered.
It is not entirely clear from the record whether the district attorney assumed that adultery was necessarily included in the crime of rape, as defined by the statute, or whether his assumption was that it was included in the crime as charged in the information. The record is more or less confusing, but some things are clear as to which there ought not be any doubt: (1) Defendant waived his right to a preliminary examination for the crime of adultery by not moving to quash; (2) he waived his right to object to the information for duplicity by not specially demurring on that ground; (3) he admitted having sexual intercourse with the female named in the information, which, considered in connection with other admissions appearing in the record, amounted to an admission of the crime of adultery.
Comp. Laws Utah 1917, § 9231, reads:
"After hearing an appeal, the court must give judgment without regard to errors or defects which have not resulted in a miscarriage of justice. If error has been committed, it shall not be presumed to have resulted in a miscarriage of justice. The court must be satisfied that it has that effect before it is warranted in reversing the judgment."
While conceding that there were errors and defects in the trial of this case in the court below, we are not satisfied that they resulted in a miscarriage of justice.
We are disposed to give some effect to the statute above quoted and are of opinion that this is a case in which it can be applied with the assurance that no injustice will be done.
The judgment of the trial court is affirmed.
GIDEON, C.J., and FRICK and CHERRY, JJ., concur. *Page 69