¶1(dissenting).
¶2A comparison of tbis case with tbe Hilberg Case I think will show that tbe distinction, if any, between tbe two eases, is in tbe degree of tbe prejudicial effect of the errors committed, rather than in tbe principles of law involved; and, as I read tbe cases, tbe errors in tbis case are much more glaring than tbe errors of a corresponding character in tbe Hilberg Case. In order to show tbe similarity of tbe facts in tbe two cases and that both are governed by precisely tbe same principle of law, I shall, to some extent, refer to tbe printed record as well as tbe opinion in tbe Hilberg Case.
¶3In tbe Hilberg Case tbe information charged that the crime was committed on tbe 15th day of February, 1898. At tbe trial tbe prosecutrix was permitted, over tbe objections of tbe defendant, to testify to acts of sexual intercourse with tbe defendant covering a period of about ten months next preceding tbe date mentioned in tbe information, and after testifying to an act of sexual intercourse which she claimed took place on or about tbe date alleged in tbe information, and as a result of which a child was bom, she was permitted to testify to an act of intercourse which she claimed she bad with Hilberg about a month' subsequent to tbe date alleged in tbe information. Tbe printed abstract of tbe record in that case shows that a witness, Brigham Birch, testi*430fied that on tbe morning of April 27, 1897, Hilberg remarked to bim “about baying sexual intercourse witb (tbe prosecu-trix). . . . He said the act occurred in the barn at Hilberg’s. . . . Tbe defendant told me at that time and place that be bad just bad sexual intercourse witb ber.” Hilberg testified as a witness, but did not dispute the evidence given by Birch. Tbe court, however, admitted tbe evidence of sexual intercourse botb before and after tbe date charged in tbe information for that purpose only of showing tbe associations of tbe parties, and in tbe presence of tbe jury so stated at tbe time tbe evidence was received. And tbe court in its charge instructed the jury as follows: “You are instructed that all evidence as to any acts of intercourse between tbe defendant and . . . (naming tbe prosecutrix) other than tbe act mentioned in tbe information can only be considered as showing tbe association of those parties, and not as proving that tbe defendant committed tbe act charged.” Tbe court in that case, also charged tbe jury that, before they could convict tbe defendant, they must be satisfied from tbe evidence beyond a reasonable doubt that be committed tbe act charged “on tbe date named (in tbe information) or near that date.” Tbe record shows that tbe act alleged to have taken place on or about February 15, 1898, and as a result of which tbe prosecutrix gave birth to a child, is tbe act that tbe state relied on for a conviction, and that tbe defendant during tbe entire progress of tbe trial understood that this was tbe act for which be was being tried.
¶4For the purposes of illustration, I shall assume, as my Brethren have held in tbe opinion affirming tbe judgment in this case, that Greene at tbe time be admitted to tbe officers, Enudsen and Larsen, that be bad bad sexual relations witb Madge Morey be bad in mind and referred to one or more of tbe acts of sexual intercourse mentioned in ber purported affidavit. It is manifest that without tbe admissions, or, rather, confession of Greene, tbe evidence would be wholly insufficient to sustain tbe verdict of tbe jury and tbe judgment of tbe court rendered thereon. In fact, without tbe confession, there is not sufficient legal evidence in tbe *431record to justify a well-founded suspicion tba.t Greene committed tbe crime of wbicb be stands convicted. Tbe evidence for tbe state, wbicb was tbe only evidence introduced in tbe case, shows that notwithstanding Madge Morey lived with Greene and bis wife at Mt. Pleasant during tbe time covered by tbe recitals in tbe so-called affidavit, Mrs. Greene “didn’t suspect a thing” respecting tbe alleged unlawful relations of Madge Morey and tbe defendant. Therefore in order to determine whether Greene, in making bis confession, referred only to tbe specific act charged in the information, or whether be referred to and included in tbe confession acts of sexual intercourse other than tbe one charged, we must look to tbe contents of tbe so-called affidavit, and consider them in connection with what Greene said in making tbe confession. This will determine whether tbe jury bad before them more than one act of Greene’s alleged unlawful relations with Madge Morey. Tbe affidavit recites “that she (Madge Morey) is tbe mother of an infant son born in Los Angeles, Cab, April 18, 1907, and that one Webster Greene of Mt. Pleasant, Utah, is tbe father of said infant son; that she is unmarried and bad sexual intercourse with said Webster Greene at Mt. Pleasant at divers times and occasions at Mt. Pleasant, Utah, between February 1st 1906 and October 1st, 1906, both inclusive ” (Italics mine.) In fairness to tbe learned judge before whom tbe cause was tried, I shall again invite attention to tbe instruction wherein be charged tbe jury that tbe affidavit of Madge Morey was admitted “for tbe sole purpose of rendering intelligible the conversation testified to as occurring between the defendant and the witnesses Knudsen and Larsen, cmd for no other purpose whatever,” and that it was to be considered by them “for no other purpose whatever." Tbe conversation referred to in tbe instruction, resolving all doubts respecting tbe order in wbicb it occurred in favor of tbe state, was, so far as material to tbe question under consideration, as follows: Upon being informed that tbe sheriff bad come to arrest him, Greene said, “What for ?” Tbe sheriff answered, “Tbe Madge Morey business.” Greene said, *432“What proof have you ?” Larsen said, “Yes, Web, you are up against it.” Greene said (referring to the purported affidavit), “Well, I didn’t think Madge would do that. I don’t think that child is mine.” Larsen said, addressing Greene, ’’You don’t deny having sexual intercourse with her?” Green answered, “No, sir; I don’t.” Larsen said, “Does your wife know anything about it, Web ?” Greene answered, “No, she doesn’t suspect a thing. There are some things that will never be told in this transaction.” Now, there is absolutely nothing in this conversation that tends to show that Greene committed the specific act of sexual intercourse charged in the information, namely, the act by which the child of Madge Morey was conceived. The admission made by Greene that he had had sexual intercourse with this woman was general in its terms, and when considered only in connection with the balance of the conversation of which it formed a part, and separate and apart from the affidavit, does not refer to any particular act or acts of sexual intercourse. And the record affirmatively shows that the confession did not include the act of sexual intercourse by which the child mentioned was conceived, the act for which he was tried, because this act he in terms denied. This court in the opinion affirming the judgment against Greene held that, when Greene made the admission referred to, he, in effect, confessed to the truth of the contents of the purported affidavit. In fact, this is the only theory upon which the judgment can possibly be upheld. The court having adopted this theory respecting the relation that the statements of Greene have to the affidavit, we have a case parallel to and on all fours with the Hilberg Case.
¶5The affidavit, in addition to charging' that Greene is the father of the child therein mentioned, charges that Madge Morey had sexual intercourse with Greene at divers times and occasions between February 1st, 1906, and October 1st, 1906, both inclusive. The court having admitted the affidavit without limiting its application or effect to any particular act of sexual intercourse therein mentioned, its entire contents were before the jury. It will thus be seen that *433in the Hilberg Case, as well as in this, the defendant was charged with having had sexual intercourse with a woman not his wife; that as a result of these unlawful sexual relations a child was born; that the defendant in each case was tried for the specific act of sexual intercourse by which the child was conceived; that the defendant confessed to having had intercourse with the woman mentioned in the information, and that in each case evidence was admitted of acts of sexual intercourse other than the act for which the defendant was on trial. The only difference I can perceive in the cases is that in the Hilberg Case the rights of the defendant were much more carefully guarded than were the rights of the defendant in the case at bar. The judgment in the Hilberg Case was reversed because evidence was admitted of adulterous acts other than the one for which the defendant was on trial.
¶6In the case under consideration complaint is made because the court admitted the affidavit mentioned, and thereby permitted to go to the jury, not only the purported statement of Madge Morey which tended to show that she had sexual intercourse with Greene on or about July 18, 1906, the act for which he was Toeing tried, but also her further statement that she had sexual intercourse with him at divers times and occasions between Febmary 1, 1906, and October 1, 1906, both inclusive. Therefore precisely the same question is presented by this appeal that was involved in the Hilberg Case. And the affirmance of the judgment in this case necessarily overrules the Hilberg Case. In the opinion denying the petition for a rehearing reference is made to the following statement appearing in the brief of counsel for appellant, namely: “There is no legal evidence in the record that the act constituting the crime of adultery was committed at any time, but such evidence as there is refers to but a single act committed on the 18th day of July, 1906, if committed at all.” It is claimed in the opinion that this is a complete answer to the contention made by appellant that the question of election is in the case and that the court *434erred in refusing to charge the jury on that point as requested by tbe defendant. I do' not think the statement made by counsel in their brief is a complete answer, nor do I think, in view of the peculiar* facts and circumstances of this case as disclosed by the record, that the statement referred to is inconsistent with the contention made by appellant on this phase of the case. The state first introduced proof tending to show that Madge Morey during the year 1906 was a single and unmarried woman, and that on the 18th day of April, 190Y, she gave birth to a child. At the time this evidence was offered the district attorney in open court said: “To establish the corpus delicti we shall seek to prove that Madge Morey was delivered of a child.” And the court admitted the evidence for that purpose. Therefore the act of intercourse alleged to have occurred on July, 18, 1906, was, under the rule announced in State v. Hilberg, supra, the only offense the court and jury were called upon to try. After much evidence had been introduced to show that Madge Morey was an unmarried woman, and that she had had sexual intercourse with some man on or about July 18., 1906, and evidence of Greene’s confession had been received, the purported affidavit of Madge Morey was offered in evidence. The court as hereinbefore stated, admitted the affidavit for the sole purpose of “rendering intelligible” the conversation that occurred between Greene and the two officers, Enudsen and Larsen, at the time Greene’s attention was first called to the document. And the court in its instructions charged the jury that the affidavit “was admitted for the sole purpose of rendering intelligible the conversation rferred to,” and that “it is not evidence in this case for any purpose, and does not prove or tend to prove in the remotest degree any fact in this case material or otherwise.” Counsel for appellant, when they prepared their brief, no doubt assumed, which they were justified in doing, that this court would give the document so restricted and limited in its application as evidence no greater latitude as evidence than was given it by the trial court. Therefore counsel were fully warranted in coming to this court and insisting that *435upon tbe record as made in tbe lower court there was but one act of adultery in tbe case — the act of July 18, 1906. And, if tbis court were to give tbe affidavit tbe same effect only as was given it by the trial court, and were to consider it for no purpose other than tbe one for which it was admitted, there would be no evidence legal or otherwise, in tbis record connecting tbe defendant with tbe commission of tbe crime for which be was on trial, and tbe judgment could not upon any plausible theory of tbe case be sustained. But tbis court bolds, if I correctly understand tbe import of tbe opinion affirming tbe judgment, that tbe affidavit was not only admissible in evidence for tbe purpose for which it was received by tbe trial court, but also as tending to show tbe particular act or acts of adultery that Greene bad in mind and to which be referred when be stated to Knudsen and Larsen that be did not deny having bad sexual intercourse with Madge Morey. In tbe course of tbe opinion it is said: “Furthermore, tbe writing [affidavit] banded to and read by tbe defendant contained tbe direct and positive statement that be and Madge Morey on divers occasions between February 1, and October 1, 1906, bad sexual intercourse with each other at Mt. Pleasant, Utah, and that tbe defendant was tbe father of her child born on tbe 18th day of April, 1901. When confronted by such statement, tbe only fact therein denied by tbe defendant, and that but vaguely, was tbe paternity of tbe child. . . . He, however, expressly admitted that be bad sexual intercourse with Madge Morey. . . . It is but reasonable to infer that such intercourse so admitted by him referred to tbe intercourse or intercourses of which he was then charged or accused(Italics mine.) It will thus be observed that tbis court, in effect, bolds that tbe statements in tbe affidavit respecting tbe several acts of sexual intercourse therein mentioned constitute a part of Greene’s confession. Tbe fact that tbe affidavit is susceptible of tbe application thus made of it by tbis court I think conclusively shows that tbe instruction asked for by tbe defendant should have been given, and that tbe court erred in giving its instruction No. 4. How can tbis court say that tbe jury, not*436withstanding the limitations and restrictions under which the affidavit was admitted in evidence, did not extend, its application far beyond the limits fixed by the trial court ?
¶7There is not a scintilla of legal evidence in the record that Madge Morey ever saw or heard of this paper which for convenience is called an affidavit. Eor aught that appears in the record, it may have been prepared in Sanpete County on the day and within two- or three hours of the time it was first shown to Greene and the confession herein-before mentioned obtained. As original or independent evidence, it was hearsay of the most vicious character. It nevertheless went to the jury as the affidavit of Madge Morey, purporting to contain a statement or statements made by her under the high sanction of an oath charging the defendant with having committed, not only the crime for which he was on trial, but also of having committed like offenses with her “at divers times and occasions between February 1, 1906, and October 1, 1906, both inclusive.” The only statement in the document tending to connect the defendant with the particular crime for which he was on trial is the statement that he was the father of the child therein mentioned. This statement the defendant did not admit to be true, but, on the contrary, denied it. The paper served no purpose whatever, except to show, when considered in connection with defendant’s confession, that he had committed adultery with Madge Morey “at divers times and occasions” other than the act of adultery charged in the information. The paper therefore was immaterial and incompetent for any purpose. But, the court having admitted it without limiting its effect as evidence to the particular act of adultery for which the defendant was on trial, the defendant was entitled to have the jury charged on the question of election as requested by him, and I am clearly of the opinion that the court erred in giving its instruction No-. 4. If the doctrine of the Hilberg Case were followed, the judgment in this case would have to be reversed, regardless of the court’s instructions or its failure to instruct on the issues. In the Hilberg Case, as I have hereinbefore pointed out, evidence was admitted of alleged *437adulterous acts of tbe defendant with the woman named in the case other than the act charged in the information. Notwithstanding this evidence was admitted for the purpose only of showing the associations of the parties, and that the court so instructed the jury, and, in addition thereto' charged on-the question of election substantially as the court was requested to charge in this case, this court nevertheless reversed the judgment and ordered a new trial.
¶8In the opinion _ overruling appellant’s petition for a rehearing it is said: “Where time is not an essential ingredient in the offense, to hold that the state is required to prove the alleged offense at or about the particular time stated in the information and may not prove it at any other and prior time within the statutory period of limitations is contrary to our knowledge of the criminal law. Such a charge is not open to the objection urged by counsel that the jury could' assume that there was evidence in the case of several or different offenses similar to- the one charged (in this case there was such evidence and it was furnished by means of the affidavit mentioned), and that they were at liberty to convict the defendant of any one of them if committed within the statutory period of limitations. As well say in a case of larceny or murder that the jury under such a charge could assume that there was evidence of several or different larcenies or murders similar to the one charged, and that they were at liberty to convict the defendant of any one of them if committed by him within the statutory period of limitations.” In answer to the first proposition above stated, I will say that should a case of larceny arise where the evidence introduced by the state tended to show that the defendant had committed several separate and distinct larcenies of the same property from the same party— the party named in the information — and each larceny constituted a transaction by itself separate and apart from each of the others, the defendant undoubtedly would be entitled to have the state elect upon which larceny it would rely for a conviction and to have the jury instructed thereon. In answer to the second proposition, it is sufficient to say that *438a person can be the victim of a homicide but once. That is, the victim cannot be killed the second time. I think a better and more apt illustration would be to suggest a case in which the defendant is charged with an assault with intent to commit murder and at the trial evidence is received tending to show that the defendant “at divers times and occasions” committed other assaults on the party mentioned in the information similar to the one therein charged. In such case I take it that it would not be seriously contended that the defendant would not be entitled to have the state elect on which assault it would rely for a conviction and to have the jury properly instructed thereon.
¶9In the opinion denying the petition for a rehearing, it is further said: “The state offered no evidence and made no attempt to prove several offenses of adultery or different adulterous acts or transactions committed by the defendant with Madge Morey. The evidence was directed to but one transaction, the one alleged in the information.” I am unable to reconcile what is here said with the position taken by this court in the original opinion respecting the application there made of the affidavit as evidence in the case. Notwithstanding anything that this court may have said in either of the opinions the fact remains that the purported affidavit was admitted in evidence, and that it contained statements purporting to have been made under oath by Madge Morey that she had sexual intercourse with the defendant “on divers times and occasions” other than the occasion alleged in the information. I shall, however, for the sake of argument, assume that there was but one adulterous act or transaction in the case, namely, the transaction alleged in the information. Now, the transaction alleged, and the one for which the defendant was placed on trial, was the act of adulterous intercourse by which the child of Madge Morey was conceived. This was the only act of sexual intercourse that’ the defendant was legally called upon to deny or to defend against. And I respectfully submit that the evidence is wholly insufficient to support a finding by the jury that the defendant is guilty of the act charged, and for which he was tried. *439When, shown the affidavit, the defendant said, as I have heretofore pointed out, “Well, I didn’t think Madge would do that. I don’t think that child is mine.” Then Larsen said, “You don’t deny having sexual ‘intercourse with her ?” The defendant replied, “No, sir; I don’t.” While this was an admission or confession on the part of Greene that he had sexual intercourse with Madge Morey, it was not' an admission or confession that he was guilty of the act charged in the information, because he in terms denied that particular act. In other words, he denied the act charged, but admitted that he was guilty of other adulterous acts with Madge Morey. In fact, no claim is made that he admitted the act for which he was placed on trial. This court in the original opinion affirming the judgment, referring to Greene’s statement, says that he “vaguely denied the paternity of the child.” Therefore I take it that it is established that Greene did not admit or confess that he committed the offense charged in the information, but, on the contrary, denied' (even though vaguely) that he was guilty of that particular offense. True, in that same conversation Greene expressed a willingness to plead guilty to fornication, but that cannot, even by the utmost stretch of the imagination, be construed as an admission that he committed the act for,which he was tried. At the time the conversation mentioned took place no complaint had been filed against defendant charging him with having had adulterous relations with Madge Morey; hence it cannot be said that, when he stated that- he was willing to plead guilty to fornication, he had in mind the particular act which he had just denied. The only fair inference that .can be drawn from what was said is that Greene, when he offered to plead guilty, had in mind the act or acts of sexual intercourse which he admitted having had with Madge Morey.
¶10I do not think it will be seriously contended that the other evidence introduced at the trial standing alone is sufficient to create a well-founded suspicion that Greene is guilty of the crime for which he was tried. We therefore have a case, as I read the record, where the defendant is tried for one offense and convicted of another.
¶11*440For the reasons stated, I am forced to tbe conclusion that a rehearing should be granted.