I dissent.
Our statute (section 8105, Comp. Laws Utah 1917) defines rape to be:
"An act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1. When the female is under the age of thirteen years; 2. where she is incapable, through lunacy [etc.] of giving legal consent; 3. where she resists, but her resistance is overcome by force or violence; 4. where she is prevented from resisting by threats of immediate and great bodily harm; * * * 5. when she is at the time unconscious of the nature of the act, and * * * 6. where she submits under the belief that the person committing the act is her husband," etc.
Section 8088 defines adultery that:
"Whoever commits adultery shall be punished by imprisonment," etc.; "and when the act is committed between a married woman and a man who is unmarried, both parties to such act shall be deemed guilty of adultery; and when such act is committed between a married man and a woman who is unmarried, the man shall be deemed guilty of adultery."
Whether one or both, or neither, are guilty when the act is committed between a married man and a married woman the statute does not say. The Legislature may have regarded such an act as mere diversion, or as an exchange in due course.
It is readily conceded that by the word "act" in the statute is meant sexual intercourse; but it is an act of sexual intercourse different from that in rape. The essential of the crime of rape "is not the fact of the intercourse, but the injury and outrage to the modesty and feelings of the woman, by means of the carnal knowledge effected by force." 22 R.C.L. 1172. The gist of the offense of adultery, as it grew out of the common law, was the injury to the husband in that it might adulterate the issue and turn the inheritance away from his own blood to that of a stanger. 2 C.J. 13. Statutes, of course, have enlarged that. *Page 70
As stated by Mr. Justice THURMAN, the complaint filed before the committing magistrate charged rape and nothing more, that the defendant:
"With force and violence ravished and carnally knew and had sexual intercourse with Shirley Goff, who was then and there not the wife of the said defendant, and without her consent and against her will and resistance," etc.
In drafting the complaint, the county attorney evidently assumed that to properly charge the offense of rape it was necessary to negative the exception in the statute and allege that the female was not the wife of the defendant, on the theory that, where an exception is incorporated in the body of a clause and is a constituent part of the defined offense, he who pleads the clause ought also to plead or negative the exception. It may be doubted whether the exception is such as to require a negation(State v. Williams, 9 Mont. 179, 23 P. 335) still, it is manifest that out of an abundance of caution the exception was negatived. In filing the information in the district court, the district attorney charged that the defendant, having been bound over to answer "this charge," is accused "by this information of the crime of felony, to wit, rape, committed as follows." Then follows the charging portion set forth in the prevailing opinion. It thus is seen that the district attorney designated the offense as but one offense, that of rape, but charged that it was committed on "Shirley Goff, a married female person not the wife of the defendant." In other words, in the complaint it was not in express terms charged that Shirley Goff was a female, nor was it alleged whether she was married or unmarried. The district attorney may have thought that merely charging that the offense was committed on "Shirley Goff" was not sufficiently charging that she was a female, and hence charged that she was a "married female person." It is conceded, and on that there is no dispute, that the complaint before the magistrate sufficiently characterized and described the person on whom the rape was committed, by the language "Shirley Goff, who was not the wife of the defendant." *Page 71 The question thus, in such particular, is whether what the district attorney added was merely a further characterization or description of the female on whom the rape was committed, and hence mere surplusage, or whether by such additional words adultery was intended to be and was charged as an additional offense, either as one necessarily included in the offense of rape or as a separate and distinct offense not so included. If it be held that adultery is an offense necessarily included in that of rape, and if sufficient averments are contained in the information to properly characterize and describe both, then that is the end of the inquiry. But the conclusion is reached in the prevailing opinion that adultery is not an offense necessarily included in the offense of rape, within the meaning of section 9025, Comp. Laws Utah 1917, and is not such an offense specified by the statute as may be joined with that of rape. I fully concur in such holding and in such respect adopt and follow, as does the prevailing opinion, the case of State v. Hooks, 69 Wis. 182,33 N.W. 57, 2 Am. St. Rep. 728, to which, among others, may be added the cases of State v. Shear, 51 Wis. 460, 8 N.W. 287, and State v. Thomas, 53 Iowa 214, 4 N.W. 908; and I am well satisfied, too, as to the distinction made in the prevailing opinion of the cited cases from Massachusetts and Pennsylvania.
But, from thence on, I part company with my brethren. They proceed on the theory that though adultery is not an offense necessarily included in that of rape, is not a lower offense included within the greater, and though adultery and rape are separate and distinct offenses, nevertheless the information in language charges both, not as included offenses but as separate and distinct offenses; and while for that reason the information was objectionable on special demurrer, still, as none was interposed, the defendant was subject to conviction of either offense. I think there are several answers to that. (1) There are not, in my judgment, two separate or distinct offenses charged in the information. (2) If there are, the election, as presently will be seen, made by the state, to proceed on the charge *Page 72 of rape thereby precluded itself from taking a conviction for adultery. (3) The case was tried and submitted on the theory, not that the information charged two separate and distinct offenses, one rape and the other adultery, but that adultery, as a lesser offense, was necessarily included in the greater offense of rape.
Even where a conviction can be had for a lesser offense under an indictment or information for a greater, such lesser offense nevertheless must be included in the greater by necessary averments. As is well stated in the case of Kilkelly v.State, 43 Wis. 604:
"The rule is, that where offenses are included one within another, a person indicted for a higher one may be convicted for one below, provided the averment in the indictment, in form, charges the lesser offense as well."
To that effect is, also, 1 Bishop, Criminal Law § 704. That is to say, as may be illustrated, second degree murder and manslaughter are lesser offenses necessarily included in the greater offense of first degree murder; but, under a charge of first degree murder to justify a conviction of any of the lesser offenses necessarily included, the information nevertheless must contain averments charging or including the lesser offenses as well.
Thus if adultery is a lesser offense necessarily included in the greater offense of rape, the added words of the district attorney in the information, "a married female person," may well be regarded as material. But holding, as we do, that adultery is not a lesser offense necessarily included in the greater offense of rape and that the language employed cannot and does not make adultery such an included offense, then the question is, Of what consequence or effect are such added words in the information? It is argued that because of them the information is rendered open to the objection of duplicity, not because adultery is an offense necessarily included in rape, but because there were two separate and distinct offenses charged. In that, *Page 73 I think, the prevailing opinion runs counter to the case ofState v. Hooks, supra, relied on, wherein that court said:
"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 a 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."
And thus, inasmuch as the Wisconsin court did not regard that adultery was an offense necessarily included within the offense of rape, it was held that the words in the information, that the female was a married woman, did not permit a conviction for adultery. Of necessity, such ruling was based on the ground that a conviction for adultery would not be supported by the information. It is the general rule that to constitute duplicity the information must charge two or more separate and distinct offenses. 14 R.C.L. 194. The rule is sometimes stated that offenses, created by different statutes, or to which different penalties are annexed, may not be included in the same count, but the true reason for it is, not because the offenses arise under different statutes, or are differently punished, but because they are in reality different offenses. Ibidem. And so Bishop says (1 Bishop, Crim. Proc. 433 [3d. Ed.]) that duplicity in an indictment "is a joinder of two or more distinct offenses in one count."
What is meant by the terms separate and distinct, and, as some of the authorities say, independent offenses? They teach that to be duplicitous there must be joined in the same count different, separate, and distinct crimes committed at different times, and when it is but one act and fully completed at the same time, there can be no duplicity. Waters v. People, 104 Ill. 544;Cornell v. State, 104 Wis. 527, 80 N.W. 745. The rule is that no matters, however multifarious, will operate to make a count double, if they constitute but *Page 74 one connected charge or transaction. 14 R.C.L. 197. In 31 C.J. 771, it is said that an indictment is not double because it charges several related acts, all of which enter into and constitute a single offense, although such acts may in themselves constitute distinct offenses, and although one of the offenses is a felony and the other a misdemeanor. In Smith v. State,186 Ind. 252, 115 N.E. 943, it is held that though a count charged the defendant with the commission of two unlawful acts — driving at an excessive rate of speed and being intoxicated, violations of different and separate statutes — and though it was alleged that each contributed to the charged offense of involuntary manslaughter, nevertheless, the indictment was not bad for duplicity. So far as the subject of duplicity is concerned, the same rule of pleading applies in criminal as in civil cases, except it is more stringently applied in the former than in the latter. Notes to Ben v. State, 58 Am. Dec. 239; State v.McNay, 100 Md. 622, 60 A. 273. And, to a large extent, the vice of duplicity rests on repugnancy and involves inconsistent matters of substance in the same count or pleading. 21 R.C.L. 454.
It is quite clear to me that, since in the information it was alleged that the defendant was held to answer "this charge," and was accused by the information "with a felony, to wit, rape," and since we hold, as we do that adultery is not an offense included within that of rape, and since the alleged carnal knowledge of the female is the same act as, and in no particular different from, that alleged in the information as having been committed by the defendant by force and violence, ravishing the prosecutrix and carnally knowing her without her consent and against her will, that the alleged carnal knowledge is in no way different, separate, or distinct, or independent of the charged offense of rape. The charged act of carnal knowledge is charged in connection with and is related to the offense of rape, and not as related to or in connection with any other offense; nor is the information, nor are the allegations therein contained, in any respect repugnant to or inconsistent with itself or themselves. But one event, one act, one circumstance, *Page 75 one transaction, one time, one place is characterized in the information. The allegation that the female was a married woman in no sense is repugnant to or inconsistent with the charged offense that the defendant ravished her. Suppose it were alleged that the defendant, a married man, with force and violence and against her will, and without her consent, ravished and carnally knew a female, could it be said that the defendant by one act committed and was charged with two separate and distinct offenses, one rape and the other adultery? or, if it be alleged that the defendant, a married man, ravished, etc., and carnally knew a female relative by force and violence and without her consent, that he by the same act of carnal knowledge committed, and was charged with three separate and distinct offenses, rape, adultery, and incest? Surely, fundamentals of pleading are not as elastic as that.
However, it is argued that if the defendant did not with force and violence, but with the will and consent of the prosecutrix, carnally know her he committed adultery. The argument but goes to the point of whether adultery is an offense necessarily included in that of rape, but has no pertinency to the question of duplicity. When it is said in a charge of first degree murder that if it be found that the killing was not done with premeditation or deliberation, but was done with malice, etc., the accused may be convicted of second degree murder, and though done without malice, but under circumstances of a sudden heat of passion, etc., he may be convicted of manslaughter, that is so because second degree murder and manslaughter are necessarily included and not because the information was duplicitous, or that several distinct and separate offenses were charged therein. Thus, as I think, but one offense, that of rape, is charged in the information unless it be said that adultery within the meaning of the statute, is an offense included within that of rape, which we hold it is not.
Reference is made to the case of State v. McDonald,14 Utah, 173, 46 P. 872. I think the case has no application to any matters under consideration. There the defendant was *Page 76 indicted for an assault with intent to murder. He was convicted of an assault with a deadly weapon with intent to do bodily harm. The disposition of the case did not turn on questions of whether the offense of which the accused was convicted was necessarily included in the charged offense of assault with intent to murder, or of the duplicitous character of the indictment. There was no claim made of duplicity, nor does the opinion proceed on such theory. It was conceded or assumed that the offense of an assault with a deadly weapon with intent to do bodily harm was necessarily included in the offense of an assault with intent to murder, providing the information contained sufficient averments to characterize and describe both, which, as has been seen, is necessary in all included offenses. The point there made was that the indictment did not contain sufficient averments to characterize the offense of an assault with a deadly weapon with intent to do bodily harm. In such respect it was contended that the statute provided that "every person who with intent, to do bodily harm, and without just cause or excuse, or when no considerable provocation appears," commits an assault upon the person of another with a deadly weapon, etc., is punishable. Then in line with People v. Fairbanks, 7 Utah, 3, 24 P. 538, it was urged by the defendant that, to properly charge an offense of an assault with a deadly weapon with intent to do bodily harm, it was necessary in the information or indictment to negative the exception or allege that the assault was made "without just cause or excuse," and that "no considerable provocation" appeared, and that the information contained no such negation or averments, and for such reason, it was contended, the defendant could not properly be convicted of an assault with a deadly weapon with intent to do bodily harm. The opinion proceeded on the theory that such negation or averments were necessary, but held that the allegations in the indictment that the assault was unlawful and made with intent to murder excluded the existence of just cause or excuse or provocation as clearly as express allegations or averments that the assault *Page 77 was without just cause or excuse and without provocation. In other words, the court held that the words, "without just cause, or excuse, or when no considerable provocation appears," were by other averments in the indictment negatived to the same extent as though it had been expressly averred that the assault was made "without just cause, or excuse, or when no considerable provocation appeared." The court dealt with the question before it on the assumption that the offense, of which the defendant was convicted, was necessarily included in that charged, providing the information contained sufficient averments to properly describe both, and no contention was made to the contrary, but held against the defendant that the information was lacking in such particular. The court thus had not before it any question and considered none as to a duplicitous character of the indictment, or as to whether two separate and distinct offenses were stated therein. In State v. Williamson, 22 Utah, 248,62 P. 1022, 83 Am. St. Rep. 780, the same court expressly stated that People v. Fairbanks, supra, was not overruled by State v. McDonald, supra, and that in the latter it was but held that killing with malice aforethought meant murder, and that the definition of murder excluded the idea of any just cause or excuse for the killing or of any provocation. I think it clear that the McDonald Case in no particular aids the state as to any contention here made by it.
Thus, I am of the opinion that there was but one offense, that of rape, charged in the information, unless it be said that adultery, within the meaning of the statute, is an included offense within that of rape and that the word "married" in the information is, as was held by the Wisconsin and other courts, mere surplusage or an unnecessary description or characterization of the female ravished. Certain it is that it is just as much of an offense to ravish a married woman as an unmarried one. In 31 C.J. 747, it is said that:
"`Surplusage' is defined to be any allegation without which the pleading would remain adequate in law. Matter which may be omitted *Page 78 from the indictment without injury to the sense or detriment to the material averments may, in general, be regarded as surplusage."
By disregarding the word "married" in the information, the material allegations in the information charging the offense of rape are in no particular affected. When it is uncertain whether an indictment or information is open to the charge of duplicity, or whether averments therein are merely unnecessary or nonessential, courts, in upholding indictments and informations, are inclined to treat such words or averments as surplusage, if after the rejection of the surplusage enough remains to constitute a valid charge and the indictment or information is complete without it.
Now, as to the subject of election. After the jury was impaneled and the state called a witness, counsel for defendant urged that the information, by alleging that the female on whom the crime was committed was married, enlarged upon the complaint before the magistrate, claimed that thereby two offenses, adultery and rape, were charged in the information, and demanded that the state elect whether it would proceed on the charge of rape or adultery, stating, in such particular, that if the state elected to proceed with the charge of rape defendant was ready for trial, but if it elected to try the defendant for adultery he objected on the ground that no preliminary examination was had for that offense. The district attorney stated that he inserted the word "married" in the information for the reason that he was informed that it appeared in the testimony given at the preliminary hearing that the female was married, and thus alleged such fact in the information, and claimed that, inasmuch as such fact appeared in the testimony before the magistrate, the defendant had knowledge thereof, and hence it was unnecessary that any further preliminary examination be had. So far, let it be conceded, both counsel misspoke themselves. Colloquies were thereupon had between counsel and the court as to whether adultery is an offense necessarily included in rape, the district attorney contending that it is, and counsel for defendant that it is *Page 79 not, and the court expressing some doubt in the matter. Finally, the court addressing the district attorney, said:
"I think you may proceed with your case against the defendant on the charge of rape. I understand that is your position."
"District Attorney: That is our position.
"Court: The court will reserve the question as to whether adultery is an included offense."
And when the jury was called back the court further stated:
"In pursuance of the motion made by counsel for the defendant, the court now understands the state elects to proceed on the charge of rape, reserving, however, the contention that the other offense is included, and with that understanding the state may proceed."
— and thus the case went on. If, as we hold, adultery is not an offense included in rape, and though the information charged two separate and distinct offenses, one rape and the other adultery, then, I think, it follows that the state by the election to try the defendant for rape thereby precluded itself from taking a verdict for the offense of adultery, for, if adultery was charged in the information as a separate and distinct offense, the election to proceed on rape withdrew the charge of adultery in the same manner as if nolle prosequi had been entered with regard thereto, or as if it had been quashed. 31 C.J. 792; 14 R.C.L. 198. It is no answer to this to say that the defendant's failure to specially demur to the information on the ground of duplicity waived all objections to the duplicitous character of the information. Though the information was duplicitous, and though a timely demurrer had been interposed on that ground and had been sustained, still, the state had the right to elect whether it would proceed on the charge of rape or adultery without the filing of a new information, but, of course, could not proceed on both offenses. 31 C.J. 789. Thus, when the state made an election, whether on motion of the defendant or on its own motion, the election worked a *Page 80 dismissal as to the charge of adultery, unless, of course, the latter offense was necessarily included in the former, which, as we hold, is not the case.
And therein, further, lies error with respect to the submission of the case to the jury. The court, in paragraph 1, or "instruction 1" charged that, before the jury could convict the defendant of "the crime of rape as charged in the information," the evidence must show beyond a reasonable doubt: (1) That the defendant had carnal knowledge of or sexual intercourse with Shirley Goff; (2) that such intercourse was had on or about May 15, 1925; (3) that it was had at or near the highway etc., in Duchesne county; (4) that Shirley Goff was a married woman, not the wife of the defendant; (5) that the defendant feloniously made an assault on her, and did at the stated time and place "feloniously ravish and carnally know and accomplish with her an act of sexual intercourse, by force and violence and against her will and resistance;" and if the state failed to prove "each and all" of such "propositions," then it was the duty of the jury "to find the defendant not guilty of the crime of rape." Of course, no complaint is made of that charge. But the defendant requested the court to further charge that if the jury found that the defendant, without force or violence, but with her consent, carnally knew or had sexual intercourse with the prosecutrix, then the jury should acquit him. The court refused and charged:
"(2) You are instructed, gentlemen of the jury, that there is included within the crime charged in the information the crime of adultery; and in this case if the evidence proves to your satisfaction, beyond a reasonable doubt, each and all of the propositions above mentioned and set out in instruction 1 and Nos. 1, 2, 3, and 4, but does not prove to your satisfaction and beyond a reasonable doubt proposition numbered 5 as set out in instruction 1, you should find the defendant guilty of the crime of adultery, as charged in the information. But if the state has failed to prove to your satisfaction and beyond a reasonable doubt each and all of the propositions above mentioned and set out in instruction 1 and numbered 1, 2, 3, and 4, then I charge you, gentlemen of the jury, that the defendant, Gordon Anderton, is not guilty of the crime of adultery, and you should so find. *Page 81
"(3) You are instructed, gentlemen of the jury, that the crime of rape is a greater crime than that of adultery; and in this case if you are satisfied beyond a reasonable doubt, from the evidence, that the defendant is guilty of either rape or adultery, as charged in the information, but you are not satisfied as to which of said crimes he is guilty of, then I charge you, gentlemen of the jury, that it is your duty to find the defendant guilty of the lesser of said crimes, that is, of adultery, as charged in the information. But before you can find the defendant, Gordon Anderton, guilty of any crime, you must find to your satisfaction and beyond a reasonable doubt each and all of the elements necessary to constitute the completed crime, as defined in these instructions."
Exceptions were taken to such charge. It is apparent that the charge submitted the case to the jury on the theory that adultery is an offense necessarily included in rape. I do not see any other meaning which fairly may be given such charge. Holding, as we do, that adultery is not an offense included in rape, the charge gave the jury a wrong principle of law and is erroneous. If, on the other hand, it be contended that the charge did not state to the jury that adultery is an offense necessarily included in rape, but that adultery is a separate and distinct offense stated in the information because of the language therein contained, "a married female," then, because of the election, the court was not justified and erred in submitting the offense of adultery to the jury. So, on the assumption that the information charged two distinct offenses, rape and adultery, the election to proceed on rape, in effect, being a withdrawal or a dismissal of the offense of adultery, the verdict rendered by the jury convicting the defendant of that offense is not supported by the information.
Now, as to prejudice. Section 9231, Comp. Laws Utah 1917, that on appeal the court must give judgment "without regard to errors or defects which have not resulted in a miscarriage of justice," etc., is referred to.
In the case of State v. Cluff, 48 Utah, 102, 158 P. 701, we had occasion to consider and construe that section. We held that the quoted language in effect, meant no more than *Page 82 section 4975 Comp. Laws Utah 1907 (of the former Code before it was amended), which provided that after hearing an appeal, the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties." If to convict an accused of an offense without an information, or not within it, or not supported by it, or of an offense withdrawn or nolle prosequi, does not affect him in a substantial right and therefore is not prejudicial, then it is difficult to perceive what committed error would affect substantial rights of an accused and be prejudicial. Because of the death of the official reporter of the district court a transcript of the testimony had at the trial was not obtainable, and thus such testimony is not, nor is there any part of it, in the bill. However, in considering the question of prejudice, reference in the prevailing opinion is made to some language in a portion of paragraph 9 of the charge. The whole paragraph is:
"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. If that be true, he cannot be found guilty of the crime of rape, as charged in the information, because rape, as I have said, is the carnal knowledge of or sexual intercourse with a woman by force and against her will. If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape, in contemplation of law."
It is now said that, since the defendant did not take an exception to that charge, he acquiesced or assented to the statement of the court that the defendant had admitted he had sexual intercourse with the prosecutrix with her consent; and therefore the verdict was justified, and the defendant not prejudiced. By the defendant's plea of not guilty, every material allegation of the information was put in issue. By it all was denied and nothing admitted. What the court stated in the charge respecting the defendant's admission evidently had reference to some testimony *Page 83 given by the defendant on the trial. I think we may not look at the charge to ascertain what the testimony was or what any witness testified to. It has always been my understanding that to judicially apprise us what the testimony was or what any witness testified to in a proceeding in a court below requires a bill or stipulation, and, as it seems to me, a departure therefrom will lead to mischievous consequences. Though the defendant gave such testimony, yet, if adultery is not an offense necessarily included in rape, and though the information charged two separate and distinct offenses, yet, when the election was made and the charge of adultery thereby withdrawn and dismissed, it is apparent that the latter offense was no longer triable in the cause, and that a verdict finding the defendant guilty of such offense is a nullity, as much so as though the defendant in the cause had testified or admitted that he stole sheep, and the jury on a submission of the case as to such offense had found him guilty of larceny.
I thus think prejudicial error was committed in submitting to the jury the offense of adultery, that the verdict has no support, that the judgment should be reversed, and, since the defendant was acquitted on the charge of rape and on the information could not be convicted of adultery, he should be discharged. State v. Hooks, supra.