The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1900-05-04

The supreme court yesterday reversed !
Judge NorreHs ruling in the case of |
Christopher Hilberg, convicted Sept. Is /
last Of unlawful intercourse. and SEN
fenced TO two years in the state prison
This viii be joyful news to young Hill
berg and his friends.
The trial made somewhat of sensa-
ton last fall. The prosecuting WltpesAs'
Annie Ward, was a young girl OF only
10 years Of age, VINO had worked as a
domestic in the home of the defendants
mother. There she claimed TO nave
been seduced by the defendant Dur
ing the trial her baby girl was present
in court as q speeches., though not al
ways silent witness for the prosecution.
After the conviction and sentence OF
Hnberg, Judge Norrell issued certlh-
cate Of probable cause, and the deIehd-
ant was admitted to bail pending an
appeal. In due course Dill or eNceP-
tious was served and fled IN the su-
preme court, with the result that Hi
berg viii have another chance for free-
dom. He is only 3 years old. he was
defended by Attorney Daniel HaTflng-
ton
The supreme court opinion is written
10y Justice Miner and concurred in by
stissents in a separate opinion. Judge
Miners written opinion is, in part, as
follows;
The defendant was charged with
having had unlawful carnal knowledge
Of one Annie Ward, a female over the
sge Of Is and under the age of Is years,
ct Salt Lake City, on the 18th day Of
February, 1898. Upon the trial the
prosecUtrix was permitted, under OBJ
lection. TO testify TO the first act OF
sexual intercourse ais having occurred
in April, 1897, about eleven months be-
fore the ,.ct charged in the informa-
ton, and, subsequently, under obJec-
ton, she was permitted to TESTIFY 10
five several and distinct acts Of sexual
intercourse occurring thereafter during
the years 1897 and 1898. The last act
occurred in April, 1898, two months
after the act charged in the informa-
ton. The defendant moved to strike
out the testimony showing the several
acts charged in the information, but
the motion was denied.
THE information in this case contain
ed but one count alleging the commits
sion Of the act on a day specified. The
trial court permitted the prosecution 10
introduce six distinct acts or crimes 10
be shown in evidence before the jury
as having occurred in 1897 and 1898,
during a period of fourteen months,
WITHOUT
made, and allowed the case 10 go 10
the Jury upon all of the several acts
OF sexual intercourse shown, when only
one act was or could be charged against
the defendant.
such a course was calculated to con-
found, distract and confuse the defend
ant in his defense. He expected to meet
one charge at a specified time, but was
required to defend against and meet six
different acts, occurring during a period
OF fourteen months, upon one OF winch
the jury was asked TO convict whether
the jury united in a verdict upon each
act, or some on one and others on an
other of the acts proved is prOblemati-
cal.
The course pursued subjects the de-
PENDANT to the risk Of conviction upon
six charges occurring at different times
and places, against which he could not
be expected TO be prepared to defend,
and yet d conviction or acquittal upon
one would be no bar 70 future prose-
cution of any except the nrst ACT
shown No jury should be set to fishing
or hunting for a charge which they are
called upon to try. Manifestly the de-
fendant could not be prepared to meet
such confusing charges not contained
in the information.
The general rule in criminal cases,
subject 10 exceptions, is we'll settled
CHARGED, the commission Of other OF
fenses cannot be proven for the pur-
pose of showing that the defendant
would have been more likely to have
committed the Offense for which he was
on trial nor as corrObOrating the testi-
mony relating thereto; but where the
Offense consists of Illicit intercourse be
tween the sexes. such as is charged
here. or in case CT incest, adultery or
seduction, courts have relaxed the rule,
and hold that previous acts Of improper
familiarity between the parties, occur
ring prior to the alleged Offense, were
admissible as explaining the acts. and
Rs having d tendency to render 1t more
probable that the act charged in the in
formation was committed, though such
acts would be inadmissible as indie
pendent testimony.
AN accusation under this statute
is easily made The Offen6e,
if committed, is generally secret. The
general character Of the prOsecutrix
cannot be attacked. Specific acts or
unchaetitv on her part cannot be
shown. The woman who participates
in the act is not cTiminaliy liable there
for. Under such circumstances the
charge. when made. is hard TO disprOve,
and difficult &c defend against, no mat
ter how innocent the accused may be.
while the protection of the honor
ana CHASTITY OF young HoIllSi II VI pb4
amount Importance to the state, and
every effort should be made to fully
care for and protect it, yet in such
prosecutions full latitude should be
given the accused to discover the truth
BY cross-examination and otherwise
Chief Justice Bartch, in his dissenting
opinion, says;
evidence Of improper familiarity and
adulterous acts. both before the act
ororoad and after IT are admissible.
Such evidence is received to prove the
aduiterous disposition in the parties i'm
plcated This appears to be the rule
sanctioned by the weight Of recent au-
thority."
The chief justice cites many cases IN
proof of the validity of his views. and
closes. with the remark that he is OF the
oDiniOn that the judgment Of the lower
court should be affirmed