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option. It was then, and for months charged, omitted by mistake. prior thereto had been, in possession. With respect to the application of the The complaint in this suit was filed Statute of Frauds, the court said in two days later. It is therefore mani- part: "But the complainant attempts fest that possession was not taken to show part performance. He alleges under the option contract, and with that the purchaser took a five years' respondent's consent, but that it was lease contemporaneously with the taken and was continued with her con- agreement of purchase, and he alleges sent under the lease contract; that the an entry under the lease. I have in part performance must have reference the case of Mullin v. Vogt, just deto the one agreement relied upon for cided, stated that, in my view, the two specific performance is not only sus- papers are distinct. Not being intertained by the authorities, but is found- dependent, part performance of the ed in fundamental and ordinary lease is not part performance of the reasoning."

agreement. Even if they could be Vogt v. Mullin (1914) 82 N. J. Eq. taken as one, there would have to be 452, 89 Atl. 533, a case not within the shown not only part performance of scope of the annotation, involved a bill their written terms and stipulations, for specific performance, the bill al- but also part performance of the parol leging a written agreement to convey agreement. No such part performland by deed of warranty, free from ance is shown. There is nothing in encumbrance, and stating that the the lease that requires the landlord to land in question was subject to a right give a term that shall be freed from of way, mention of which, it was the easement.”

R. S.


C. C. THOMPSON, Appt..

Utah Supreme Court - June 18, 1921.

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(58 Utah, 291, 199 Pac. 161.) Criminal law, $ 84 - communication with juror – declaration of mistrial.

1. The court cannot declare a mistrial and discharge the jury in a criminal case merely because a juror has received a communication out of court, in the absence of complaint by accused.

[See note on this question beginning on page 706.] Pleading, $ 560 - sufficiency – what Criminal law, $ 150 pleading considered.

demurrer former jeopardy. 2. Only the facts alleged in a plead- 4. Demurrer does not lie to a good ing can be considered in determining plea of former jeopardy in a criminal its sufficiency on demurrer.

case. [See 21 R. C. L. 505; 3 R. C. L. 1163; [See 8 R. C. L. 119; 2 R. C. L. Supp. 4 R. C. L. Supp. 1418.)

554.] Criminal law, 8 63 when accused Trial, $ 155 question for jury is in jeopardy.

consent to mistrial. 3. An accused is in jeopardy when

5. The jury must, in case of doubt, the jury is impaneled and sworn, and

determine whether or not accused the issues presented on a valid in- consented to the declaration of a dictment or information in a court of mistrial because of a communication competent jurisdiction.

received by a juror from a stranger [See 8 R. C. L. 138; 2 R. C. L. Supp.

out of court. 558; 4 R. C. L. Supp. 529; 5 R. C. L. Pleading, $ 185 — sham – striking. Supp. 447.]

6. A plea good in form, but false

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in fact, is a mere sham, and should be stricken.

[See 21 R. C. L. 452; 3 R. C. L. Supp. 1158; 5 R. C. L. Supp. 1159.]

Evidence, § 1151 character


7. Evidence of reputation of one accused of a sex crime must be confined to reputation for sex morality.

[See 22 R. C. L 1220.]

APPEAL by defendant from a judgment of the District Court for Salt Lake County (Stephens, J.) convicting him of indecent assault. Reversed.

The facts are stated in the opinion of the court.

Messrs. King & Schulder and Henry their discretion, whether, under all V. Van Pelt, for appellant:

the circumstances of each case, such Unless facts clearly warrant the ex- necessity exists, and the fact the disercise of a judicial discretion, then charge was without authority or law the defendant is in jeopardy.

affords no ground for holding that Upchurch v. State, 36 Tex. Crim. defendant cannot be retried upon inRep. 631, 44 L.R.A. 694, 38 S. W. dictment found against him. 206; Finch v. State, 53 Miss. 365; 16 C. J. p. 250; 8 R. C. L. § 142; State v. Shuchardt, 18 Neb. 454, 25 Oborn v. State, 143 Wis. 249, 31 N. W. 722; State v. Alman, 64 N. C. L.R.A.(N.S.) 973, 126 N. W. 737; State 364; State v. Hows, 31 Utah, 168, 87 v. Duvall, 135 La. 710, L.R.A.1916E, Pac. 163; Dreyer v. People, 188 Ill. 1264, 65 Şo. 904. 40, 58 L.R.A. 869, 58 N. E. 620, 59 Failure of the defendant to object N. E. 424; United States v. Perez, 9 to the discharge of the jury is a Wheat. 579, 6 L. ed. 165; State v. waiver, and he is thereby estopped Barnes, 54 Wash. 493, 23 L.R.A.(N.S.) from pleading former jeopardy. 932, 103 Pac. 792; State v. Nelson, 19 17 Am. & Eng. Enc. Law, 2d ed. R. I. 467, 33 L.R.A. 559, 61 Am. St. 1261; State v. Dry, 152 N. C. 813, 67 Rep. 780, 34 Atl. 990; People v. Cage, S. E. 1000; State v. Garvey, 42 Conn. 48 Cal. 323, 17 Am. Rep. 436; People 232; Oborn v. State, 143 Wis. 249, 31 v. Parker, 145 Mich. 488, 108 N. W. L.R.A.(N.S.) 973, 126 N. W. 737; 999; Gillespie v. State, 168 Ind. 298, Kingen v. State, 46 Ind. 132; Williams 80 N. E. 829; Keerl v. Montana, 213 v. Com. 31 Ky. L. Rep. 111, 101 S. W. U. S. 135, 53 L. ed. 734, 29 Sup. Ct. 381; Minyard v. State, 17 Ga. App. Rep. 469; 8 R. C. L. $$ 142, 143, notes 398, 87 S. E. 710; Jackson v. State, 51 12, 13; State v. Richardson, 47 S. C. Ga. 402. 166, 35 L.R.A. 238, 25 S. E. 220; State Where the record is silent as to v. Reed, 53 Kan. 767, 42 Am. St. Rep. consent, or where the defendant re322, 37 Pac. 174.

mains silent, consent is presumed. The scope of inquiry as to the gen- Stone v. State, 135 Am. St. Rep. 71, eral reputation of defendant should note; People v. Curtis, 76 Cal. 57, 17 not be limited to sexual morality Pac. 941; State v. Dry, 152 N. C. 813, alone.

67 S. E. 1000; Knight v. Freeport, 13 3 Greenl. Ev. § 26; Jones v. State, Mass. 218; 20 R. C. L. 255, $ 38; Com. 10 Tex. App. 552; Lincecum v. State, v. Fisher, 134 Am. St. Rep. 1033, note. 29 Tex. App. 328, 25 Am. St. Rep. 727, Where there has been misconduct, 15 S. W. 818; Poyner v. State, Tex. disagreement, or disqualification of Crim. Rep. 48 S. W. 516; Hardtke the jury and a mistrial properly dev. State, 67 Wis. 552, 30 N. W. 723, 7 clared, the defendant cannot, at the Am. Crim. Rep. 577; Hughes, Crim. succeeding trial, claim former jeopProc. 20.

ardy. Messrs. Harvey H. Cluff, Attorney State v. Hansford, 76 Kan. 678, 14 General, W. Hal Farr, W. A. Hilton, L.R.A.(N.S.) 548, 92 Pac. 551; Re L. A. Miner, and J. Robert Robinson, Ascher, 130 Mich. 540, 57 L.R.A. 806, Assistant Attorneys General, for re- 90 N. W. 418; Wright v. State, 5 Ind. spondent:

290, 61 Am. Dec. 90; State v. Tilletson, Although there must be manifest 52 N. C. (7 Jones, L.) 114, 75 Am. Dec. necessity for the discharge of a jury 456; State v. Washington, 89 N. C. without defendant's consent, still it 535, 45 Am. Rep. 700; Mahala v. State, is left to the courts to determine, in 10 Yerg. 532, 31 Am. Dec. 591; Ex


(58 Utah, 291, 199 Pao. 161.) parte McLaughlin, 41 Cal. 211, 10 Dec. 311; Briscoe v. Bronaugh, 1 Tex. Am. Rep. 272; Com. v. McCormick, 326, 46 Am. Dec. 108; Bergh v. 130 Mass. 61, 39 Am. Rep. 423; State Spivakowski, 86 Conn. 98, 41 L.R.A. v. Barnes, 54 Wash. 493, 23 L.R.A. (N.S.) 855, 84 Atl. 329; Mooney v. (N.S.) 932, 103 Pac. 792; Com. V. People, 111 Ill. 388; 20 R. C. L. 278; Fitzpatrick, 121 Pa. 109, 1 LR.A. 451, 3 Whart. Crim. Proc. 10th ed. p. 2200; 6 Am. St. Rep. 757, 15 Atl. 466, 7 Am. 1 Whart. Crim. Ev. 10th ed. 8 384. Crim. Rep. 199; Fails v. State, Ann. Cas. 1912B, 1146 and note, 60 Fla. 8,

Thurman, J., delivered the opin53 So. 612; Andrews v. State, Ann.

ion of the court: Cas. 1914B, 760 and note, 174 Ala. The defendant was convicted in 11, 56 So. 998; State v. Duvall, L.R.A. the district court of Salt Lake coun1916E, 1264, and note 1273, 135 La. ty of the crime of indecent assault, 710, 65 So. 904; Hedger v. State, 144

as defined in Utah Comp. Laws 1917, Wis. 279, 128 N. W. 80.

§ 8049, and sentenced to a term of If a defendant consen to the dec

imprisonment in the state prison. laration of mistrial he cannot later successfully urge former jeopardy.

No exception was taken to the inforPeople v. Fishman, 64 Misc. 256,

mation. Defendant was arraigned 119 N. Y. Supp. 89; Stone v. State,

thereon, and pleaded not guilty. A 135 Am. St. Rep. 69 and note, 160 Ala. jury was regularly impaneled and 94, 49 So. 823; Andrews v. State, Ann. sworn to try the cause. After seyCas. 1914B, 775, note; Oborn v. State, eral days devoted to the taking of 143 Wis. 249, 31 L.R.A.(N.S.) 966, 126

testimony, information was conN. W. 737.

veyed to the presiding judge by one Character evidence should be re

of the jurors sworn in the case, to stricted to the particular trait in is

the effect that he had been comsue. Underhill, Crim. Ev. § 77; 2 Bishop,

municated with concerning the case New Crim. Proc. 2d ed. p. 955; Kahlen- by a person not connected therewith. beck v. State, 119 Ind. 118, 21 N. E. The judge immediately brought the 460; State v. Dexter, 115 Iowa, 678, matter to the attention of counsel 87 N. W. 417; People v. Fair, 43 Cal. for the respective parties, and, after 137; Gandolfo v. State, 11 Ohio St. an investigation of the matter, the 114; Westbrooks v. State, 76 Miss.

court ordered a mistrial, and dis710, 25 So. 491; Griffin v. State, 14

charged the jury. Specific details Ohio St. 55; State v. Bessa, 115 La.

as to what occurred in the investiga259, 38 So. 985; State v. Griggsby, 117 La. 1046, 42 So. 497; Hurst v.

tion will appear later on. Robinson, 53 Am. Dec. 134 and note,

At the next term of court, the case 13 Mo. 82; McQuiggan v. Ladd, 14 again came on for trial on the same L.R.A.(N.S.) 689 and note, 79 Vt. 90, information, whereupon the defend64 Atl. 503; 1 Whart. Crim. Ev. 1007; ant entered the following plea: 3 Enc. Ev. p. 20; 1 Greenl. Ev. 13th “Now comes C. C. Thompson, deed. $8 54, 55; 2 Greenl. Ev. $$ 25, 26; fendant, in his own proper person, 8 R. C. L. 208, § 203; State v. Curran,

into court here, and, having heard 51 Iowa, 112, 49 N. W. 1006, 3 Am.

the information read, says that the Crim. Rep. 405; Coffee v. State, 1 Tex.

state of Utah ought not further to App. 548; Jones v. State, 10 Tex. App. 552.

prosecute said information against Where the evidence is in direct con

him, because at the September, flict, and nothing appears to indicate 1919, term of the district court of that the jury was actuated by improp- the third judicial district in and for er influence, or that it acted under a the county of Salt Lake, the district mistake, and the credited evidence is attorney of said district, duly aunot inherently impossible, the court

thorized by law so to do, presented should not invade the province of the

defendant the aforesaid information jury and interfere with the verdict.

against him for the same offense People v. Chalmers, 5 Utah, 201, 14

with which the defendant is now Pac. 131; United States v. Daubner, 17 Fed. 793; Douglass v. Tousey, 20

charged; that said defendant was Am. Dec. 616 and note, 2 Wend. 352;

duly arraigned in said court on said Baker v. Briggs, 8 Pick. 122, 19 Am. information, and pleaded not guilty


thereto; that thereupon a jury was ing is challenged by demurrer, the duly impaneled and sworn in said facts alleged in the pleading, and cause in said court, and the trial those only, consti

Pleading-sufproceeded with and testimony taken tute the standard Aciency-what on the part of the state and on part by which its suffiof the defendant, when said jury ciency should be determined. If we were discharged by the court upon are right in our interpretation of the ground that the jury had re- the record in the present case, eviceived out of court, after being so dence of what occurred in court duly impaneled, and after said trial before the plea in bar was enhad been proceeded with, evidence tered, during the investigation hereother than that resulting from a tofore referred to, was offered and view of the premises and a commu- received upon the question as to nication referring to said case, whether or not the plea was justiwhich discharge was without the fied, and the evidence so taken must consent of the defendant, and be- have been considered by the court fore agreement upon a verdict, and in determining the question raised without disagreeing, and without by the demurrer. We feel warrantspecial necessity for such discharge, ed in indulging in this assumption, and the said defendant says that he for otherwise we do not understand has been once in jeopardy upon the upon what theory the demurrer said information, and cannot, under could have been sustained. The dethe Constitution and by the laws murrer admits the facts alleged in of the state of Utah, be again tried the plea. The facts pleaded clearly under said information, or for the show that at a previous term of the offense therein set out. Wherefore same court the defendant was duly the defendant prays judgment of arraigned on the same information, the court that he may be dismissed on which arraignment he pleaded and discharged."

not guilty; that a jury was duly To this plea the state interposed impaneled and sworn in said court an oral demurrer, and also a motion and cause, and testimony taken on to strike. The motion to strike was the part of both the state and the denied, but the demurrer was sus- defendant; that said jury was distained. The specific grounds of the charged by the court on the ground demurrer do not appear in the rec- that, after being duly impaneled, ord, but we are justified in assum- and after the trial had commenced, ing that the contention was that the the jury had received, out of court, facts stated were insufficient to con- evidence other than that resulting stitute a plea of “once in jeopardy.” from a view of the premises and a The defendant excepted to the rul- communication referring to said ing of the court sustaining the de- cause; that the discharge of said murrer. The trial of the case jury was without the consent of dethereafter proceeded, resulting in a fendant, and without “special neconviction, as before stated. Judg- cessity,” and before an agreement ment was entered thereon, from upon a verdict

a verdict or disagreement which judgment defendant appeals. thereon. The plea expressly alleges 1. Appellant assigns as error the

that the defendant had been once ruling of the court sustaining the in jeopardy upon the same informademurrer to his plea of “once in tion. Defendant invokes the Conjeopardy." We have felt somewhat stitution and laws of the state embarrassed in our endeavor to de- against being tried again for the termine this question, because of the same offense, and prays that he be peculiar angle from which the ques- discharged. tion appears to have been considered The most serious objection to the by counsel on both sides of the con- plea is that it abounds in superfluity troversy.

and excessive verbiage.

Uta? When the sufficiency of a plead- Comp. Laws 1917, § 8899, subd. 4,

(58 Utah, 291, 199 Pao. 161.) provides the form of a plea of "once taining the demurrer was one of in jeopardy:" "If he pleads once which defendant can complain is a in jeopardy: 'The defendant pleads subject of serious controversy be

' that he has been once in jeopardy tween the parties. for the offense charged (specifying Utah Comp. Laws 1917, § 8924, the time, place, and court'").

provides that issues of fact arise: All of this the defendant pleaded, (1) Upon a plea of not guilty; (2) and much more. The question is, upon a plea of former conviction or Did he plead himself out of court acquittal; (3) upon a plea of once by alleging facts which nullified the in jeopardy. The next succeeding effect intended? If not, the super- section provides that issues of fact fluous matter should have been dis- must be tried by a jury unless a trial regarded and the plea sustained. by jury be waived as therein pro

There is no disagreement between vided. If the circumstances consticounsel for the defendant and the tuting the basis of defendant's plea state concerning the proposition as of “once in jeopardy” involve issues to when jeopardy attaches in a case of fact, then such issues should have where the jury is impaneled to try been tried by the jury. If the cirthe cause. The defendant is in jeop- cumstances relied on by defendant ardy when the jury is impaneled present only issues of law, then it and sworn and the issues presented was the duty of the court to try Criminal law

on a valid indict- such issues, and, if properly deterwhen accused is ment or informa- mined against the defendant, the in jeopardy,

tion in a court of error of the court in sustaining the competent jurisdiction. The doc- demurrer to the plea would be harmtrine is tersely stated by the su- less. preme court of California in People In order to determine whether or v. Webb, 38 Cal. 467. The third not there was an issue of fact which headnote reads: "If a party is once should have been submitted to the placed upon his trial before compe- jury, it becomes necessary at this

, tent court and jury, upon a valid point to state the circumstances indictment, the 'jeopardy' attaches, upon which defendant relies for the to which he cannot again be sub- basis of his plea. It is not necesjected, unless the jury be discharged sary to mention the names of perfrom rendering a verdict by a legal sons involved, except those of counnecessity, or by his consent; or, in sel participating in the investigacase a verdict is rendered, it be set tion. aside at his instance."

After the first trial, as heretofore To the same effect is People v. stated, had proceeded for several Horn, 70 Cal, 17, 11 Pac. 470. This days, one of the jurors sworn in the statement of the proposition is al- case informed the presiding judge most a perfect model of brevity and that he had been approached by a conciseness.

gentleman with whom he was acDefendant's plea of "once in jeop- quainted and was asked by him, , ardy” in the instant case alleges, "Who is on trial in this court ?

, among other things, that the jury The gentleman then looked and saw was discharged without his consent, the defendant, and said, "Oh! and that there was no “special ne- Thompson is on trial.” The juror cessity" therefor. These, together made no reply. The gentleman then

. with the other matters alleged, con- said, "I think a charge of this kind stitute a good plea of "once in jeop- is a great shame.” The juror said: ardy.” It follows, therefore, that Yes, if a man is guilty it is a

the state's demur- shame, and if he is innocent it is a -pleading-de

rer to the defend- shame for him to be charged with er jeopardy.

ant's plea should that crime.” The gentleman then have been overruled. But whether said, in effect, that he had known or not the error of the court in sus- the defendant casually for many

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