I dissent. In addition to the statement of facts, it may also be stated that about a month after the arrest of the defendant the husband was granted a decree of divorce; but on what grounds the decree was granted, or whether by default or otherwise, or when the divorce action was commenced, or whether it was pending during the time the detective was watching the movements of the wife and of the defendant, the record does not disclose. The husband, however, testified that he wanted the possession of the child and employed a detective "to get the evidence."
It may readily be assumed that had the court denied the motion and submitted the case to the jury and had a verdict of guilt been rendered, we, on appeal, would be justified in holding that the evidence, though circumstantial or indirect in character, would be sufficient to support the verdict. But we are asked to overthrow a ruling withholding the case from the jury. That presents a somewhat different proposition. The state, in effect, puts the proposition that if in a case there be not sufficient evidence to support a verdict of guilt it, on motion to withhold the case from the *Page 338 jury, is assignable error to submit the case, the converse of the proposition must also be true that if there be sufficient evidence to support a verdict of guilt, it likewise is assignable error to withhold the case. The conclusion on the reverse relation does not necessarily follow, unless the trial court has no broader power or wider discretion than the appellate court to consider and regard testimony. If there is no evidence to justify or support a verdict of guilt the legal duty to withhold the case is plain. There is no discretion to do otherwise. On the other hand, a ruling withholding a case to some extent and in a greater or lesser degree involves the exercise of a discretion unless the evidence is of such character as clearly to preponderate in favor of guilt.
It is the rule generally, it is the rule here, we have said so many times, that in a law case the trial court has greater power and a wider discretion than we have in considering evidence and that the trial court may consider and weigh evidence as well as the probative effect of it. On appeal our power in such respect is limited and restricted. On a challenge of a sufficiency of evidence to support a verdict of guilt, we but look at the legal effect of evidence and consider and review it for the purpose of ascertaining whether there is sufficient competent evidence to support or justify the verdict, and do not deal with conflicts in the evidence nor with the weight of it nor with the credibility of witnesses, except for manifest imperfections and improbabilities. The powers and duties of the trial court are different and much broader. Because thereof, though there may be sufficient evidence considered on appeal to support or justify a verdict of guilt, nevertheless the trial court, in the exercise of a sound discretion and of an enlightened judgment, may withhold the case from the jury without imputing error to the ruling. To say that the trial court may not do so is to say that it has no greater power or wider discretion to deal with and consider evidence than we have. And to say that the trial court has such power only on a motion *Page 339 for a new trial is to curtail the substance and efficacy of the power and but to postpone the exercise of it. The question of whether error was committed of which the state may complain of a ruling withholding a case from a jury is largely dependent upon the nature and character of the evidence. If it clearly preponderates in favor of guilt, or if the guilt of the accused is manifest, it may well be said that to withhold the case from the jury would be an abuse of discretion, may in some instance even be a gross abuse. Let it be assumed that in case of such abuse we may interfere with and disapprove the ruling. Here, on the evidence, the guilt of the accused rests entirely on circumstantial evidence. True, a case of circumstantial evidence, depending upon the nature and character of the proven facts, may show guilt as clearly and satisfactorily as in a case of positive and direct evidence. But ordinarily in a case resting wholly on circumstantial evidence a greater latitude exists for the exercise of a discretion of the trial court than in a case of direct or positive testimony. No hard and fast rule can be laid down as to that. Each case must depend upon its own facts and upon the kind and degree of evidence by which they are sought to be established. Whether the evidence be circumstantial or direct, yet, unless an abuse of discretion of the trial court is shown in withholding a case from a jury, we ought not to interfere with the ruling. No abuse of discretion of the trial court is claimed by the state. What is urged is merely that the evidence was sufficient to let the case to the jury and therefore the court erred in withholding it. The exercise of a discretion of a trial court in withholding a case from a jury is somewhat analogous to the exercise of a discretion in setting aside a verdict of guilt. Let it be conceded that the power of the trial court is greater in setting aside a verdict of guilt, for in such case the court may, even under a gross abuse of discretion and against the manifest and undisputed evidence of guilt, set aside a verdict and grant a new trial and the state may not be heard to complain. However, if the trial court, seeing *Page 340 and hearing the witnesses and considering the probative effect of the testimony, in the exercise of a sound discretion and of an enlightened judgment, is not satisfied to let a verdict of guilt stand on the evidence adduced and feels compelled to set it aside if such a verdict should be rendered, I think the court may withhold the case from the jury without imputing error to the ruling. I think some judgment and discretion should be left to the trial court in such respect. I think that a wholesome and generally accepted rule. It rarely is abused and no claim of abuse is here made. The claim is that if there be sufficient evidence to warrant a verdict of guilt the trial court has no discretion whatever to withhold the case, though if a verdict of guilt is rendered the court may sua sponte set it aside and be justified in so doing. I cannot yield to such a doctrine. I think the cited cases in the prevailing opinion do not support it. All the cited cases, except State v. Gross, where the matter is not discussed, are cases where, on conviction and on the defendant's appeal, it was urged that the trial court erred in refusing the defendant's motion to direct a verdict and where it was held that no error was committed, if there was sufficient competent evidence to support the verdict of conviction. Judicial opinions in support of that are numerous. I readily agree to that. That is what is taught by Isbell v. U.S. and by the annotations in 17 A.L.R. 910, specially referred to in the prevailing opinion. Here let it again be conceded that had the defendant's motion been overruled and a verdict of guilt rendered, he, on appeal, could not successfully predicate reversible error on the ruling. In such case we would be, as the court in the Isbell case said it was, restricted to a mere determination of whether there was substantial evidence to justify the verdict. Satisfied of that, we would say no reversible error was committed. But the conclusion does not necessarily follow that assignable error would have been committed in withholding the case. The conclusion in the one instance is in harmony with the exercise of a discretion of the court below, while in the other it *Page 341 is in discord with or in disregard of the exercise of a discretion or in denial of the right to exercise any discretion and of the right and power of the trial court to view and weigh testimony and consider its probative effect in any broader or different sense or to any greater extent than we may do, which necessarily is destructive of the heretofore fundamental and recognized distinction between the right and power of an appellate court and a trial court to consider and weigh testimony and judge its probative effect and value. The distinction seems to me plain and that there ought not to be any difficulty in its application.
And then what good is to be accomplished by this appeal? No matter what ruling is made by us on the question presented for review the judgment of the court below nevertheless must be affirmed. Nor may the accused again be put on trial for the charged offense. That is conceded by the state. The verdict rendered as directed is just as effectual as would be a verdict of not guilty rendered on a submission of a case. There is no principle of law involved or presented in the case to be settled. No claim is made that the direction of the verdict was caused by some misconstruction of a statute or a misapplication or misconception of some principle of law. That the crime of adultery is of such nature that in a majority of prosecutions therefor it can be established only by circumstantial evidence and that the general rule is that the crime may be sufficiently established by proof of circumstances from which a jury may reasonably infer guilt of the accused is well settled in this as in other jurisdictions. We have said it several times. State v.Odekirk, 56 Utah 272, 190 P. 777. An appeal is not necessary to have us say it again. The claim made by the state is that the appeal is prosecuted to establish whether or not the particular facts and circumstances here in evidence are sufficient to warrant a conviction of guilt. The alleged error relates entirely to matters of fact. It is rare where two cases on their facts are so identical or similar that a ruling on the question of sufficiency of evidence in *Page 342 the one may be regarded as a precedent for the other. In such particular each case must depend upon its own facts and upon the quantum and character of the evidence by which they are sought to be established. Though the district attorney prosecuting this appeal, as well as other district attorneys of the state, may in the future have occasion to prosecute other cases of adultery or of carnal knowledge, yet may not again have a case where the facts and circumstances are similar to those in this case.
I therefore am of the opinion that the judgment should be affirmed, as confessedly it must be in all events.