Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1899-11-02

HAS TO "Doo SEVEN YEARS.
Was Tried for an Assault on six
Near-oid Girl, aud Pound Guilty
OF Lesser Oncnse.

John 4. blythe. convicted before
Judge Norrcli and a jury In the Third
district court last April of the crime Of
assault with intent to commit
rape. IN this city. June H..
1898 and sentenced 60 seven years
In the State prison. must serve
out HE term. The Supreme court - de-
cldcd today In an opinion affirming the
judgment " the trial court
Counsel Tor the prisoner conicndcd
that judge Norrcli erred IN permitting
20 young a child 20 be- sworn and teau-
~ against his client Objection was
based on section Jgis OF the revised stat
utcs. which provides that children un-
der ten years Of oge. who appear incap-
able % receiving Just Impressions of tho
facts respecting which they are OK
umlncd. or relating them truly" cam
not b. witnesses.
The supreme court holds that the IAN
ftiago used clearly Implies that the dis
ability or incOmpvtcucy referred 10,
must appear 20 the trial judge and "
In tho discretion Of the trial judge the
child D. competent to testify, the appel
late court viii not Interfere.
The Supreme court further holds that
u IA not 20 much the age NJ wituc ~
that constitutes O test of competency 90
testify. hut the "cnpthnlty Of receiving
just Impressions 81 facts aud of relht-
Ing them truly"
Hence" reads the opinion. ~ the
child appears 60 have such capahlllly,
that ia DO puraoHs sufficient sense of the
danger and implety 90 false Hwenflns.
or D. sensible of the wickodnoHs Of tali.
Ing deliberate &c. o. may be- admitted
az witness. regardless Of its age
iNsTRucTfSG THE JURY,
Another alleged error cited by the
prisoner counsel was the refusal u
Judge Norrcli To Instruct the Jury 10
bring Coz r. verdict NJ ucuulttnl. Aftcr
"a careful. examination az the record
the Supreme court pcrcclvca no error On
this point
"Ths little Firl" the opinion reads.
testified distinctly 60 acts on the part
of the defendant, tending 20 show the
commission u the onensc charged. ana
her evidence. az appears from ne
transcript. was corroburntcd by the
testimony % other witnesses. Under
such circumstances the court was war
rnnted In submitting the case TO the
/ jury.
HIGHER CRIME INCLUDES LESSER
Blythe was accused In the informa
| tlon with the specific onenHe u rape,
/ hut IN charFing the jury Judge Norrol
/ aid tho defendant might BE- convicted
/ Of an nHnnult with Intent to commit
| rape. This was also citcdia error or
/ the part ~ the tfinl court, Tile su'
/ prcme court however, holds otherwise
| and says the charge u rape necessarily
] Includes 49, assault with Intent 20 com
/ init a. "Thc higher crime" the opln-
] Ion says. includes tho lesser. the o.
Tense CHARGED was but the nggrnvntlot
| uf the criminal assault" cummentina
/ further the Supreme court Haysi
Even though. from the evidence u
! may appear that the oncuse ~ rupi
was actually completed, Htlil the tur
| had the power 10 convict the defendant
m the lcnFcr offcnHe, however illugi
| cal such conviction may tfemi am,
! such action ~ the jury cannot BE- ~
| rHrded uH Injurious 90 the defendant
/ but only uH advantageous 90 him.
Tho court orders that the iudg
/ msut of the trial court Doc affirmed.
Tho opinion was delivered by chile
! Justice Hurtch. and conquered Ia hl
| Justices Minor and iinahn,