Opinion
No. 12050.
February 17, 1971.
Appeal from Third District Court, Salt Lake County; Aldon J. Anderson, Judge.
Walter R. Ellett, Dansie, Ellett Hammill, Murray, for defendant and appellant.
Vernon B. Romney, Atty. Gen., Lauren N. Beasley, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Appeal from a rape conviction. Affirmed.
Substantial, admissible and competent evidence viewed favorably to respondent shows that defendant, proven on cross-examination to have been not only a prevaricator but a perennial problem, forced the complainant to lie on a bed in a house where she was trying to do a job of being a mother to two children, one 3 and the other 1 1/2, and at knife-point, raped her. He involved his whole family, — grandmother, mother and an assortment of relatives in a testimonial attempt to establish an alibi, all of whose testimony was as puerile as was his alibi.
Mr. Van Dam says that 1) The court erred in not granting a new trial on the grounds of newly-discovered evidence having to do with a rather titillating brassiere and an elusive knife not introduced in evidence, 2) that the evidence does not sustain the verdict, and 3) the same thing. Nos. 2 and 3 we dismiss as being without merit.
As to No. 1.): No one complained about the absence of the brassiere or the knife until after the trial. Whether anyone did or not makes but little difference, since the devastating evidence by F. B. I. analysis, that defendant's jacket fiber-wise unmistakenly was shown to have been on the bed which he violated, justified the jury in perhaps sympathizing with grandma, and mother, and the kinfolk trying to do what comes naturally, but not with the defendant, whose history did not commend itself to any subscription to the Boy Scout Oath.
CALLISTER, C. J., and TUCKETT, ELLETT and CROCKETT, JJ., concur.