We need not stop to consider to what extent the decisions of the cases last named may have been influenced by statutes or a practice different from ours, for the rule announced by the California court is more in harmony with principles already enunciated by this court, that to invoke the jurisdiction of the court to entertain a motion for

2

3

a new trial the motion must be made within the time allowed by statute or enlarged by the court (Felt v. Cook, 31 Utah 299, 87 Pac. 1092), and that the court is without authority, after the expiration of such time, to even permit an amendment o a notice of motion for a new trial by adding thereto a new and independent ground therefor (Blue Creek Land & Live Stock Co. v. Anderson, 35 Utah 61, 99 Pac. 444). Stress is laid on the fact that the judgment in the district court was rendered on an appeal from an inferior court. Upon that it is asserted that the power to rehear a cause is inherent in every appellate court. In the first place, the appeal was not a mere proceeding to review and correct errors. It required a trial de novo on the merits in the same manner as actions originally commenced in the district court. The practice and procedure with respect to motions for a new trial in the district court are the same in cases there tried de novo on appeals from inferior courts as in cases originally commenced in the district court. In the next place, the power of the district court to rehear and re-examine the cause was once invoked by plaintiff's first application for a retrial. After the application was denied, to then also permit a petition to rehear and re-examine the order denying the motion is in effect to allow the limited time within which a motion for a new trial may be made to be enlarged and to render the proceedings after judgment interminable. There must be some point where litigation in the lower court terminates, and the losing party turned over to the appellate court for redress. (Coombs v. Hibberd, supra.) We think the district court was without jurisdiction to entertain the application for the rehearing; that the judgment became final when the court, on the 28th day of October, 1908, denied the motion for a new trial;

and that the appeal taken on the 4th day of November, 1909, was therefore too late.

The appeal is dismissed, and the judgment of the district court affirmed, with costs.

FRICK, C. J., and MCCARTY, J., concur.

STATE v. GREENE.

No. 2045. Decided December 2, 1910. On Application for Rehearing, April 19, 1911 (115 Pac. 181).

1. ADULTERY-MARRIAGE OF ACCUSED-SUFFICIENCY OF EVIDENCE. In a prosecution for adultery, evidence held to justify a finding that accused was a married man. (Page 395.)

2. ADULTERY-MARRIAGE OF ACCUSED-EVIDENCE-ADMISSIONS. In a prosecution for adultery, where proof of the marriage of accused is essential, the fact may be proved by his admissions.' (Page 395.)

3. ADULTERY-ELEMENTS-MARRIAGE

OF PARTIES. Under Comp. Laws 1907, section 4210, punishing adultery, and providing that, when the act is committed between a married woman and an unmarried man, both parties shall be deemed guilty of adultery, and that, when the act is committed between a married man and an unmarried woman, the man shall be deemed guilty of adultery, proof that accused was married to a woman other than prosecutrix, and that he had sexual intercourse with the latter, was sufficient to show him guilty of adultery, whether prosecutrix was married or not. (Page 395.)

4. CRIMINAL LAW-EVIDENCE-ADMISSIONS. In a prosecution for adultery, an affidavit signed by prosecutrix to the effect that she was the mother of a child, that accused was its father, that she was unmarried, and had had sexual intercourse with accused at divers times, and which was shown to accused when he was arrested, whereupon he stated that he had had sexual intercourse with prosecutrix, but did not believe the child was his, was admissible in evidence, not as primary evidence of the facts therein declared, but to show his admissions respecting the statements contained in it. (Page 396.)

5. ADULTERY-CORPUS

DELICTI-SUFFICIENCY OF EVIDENCE. In a prosecution for adultery, the corpus delicti was sufficiently shown by proof that prosecutrix, an unmarried woman, gave birth to a child, and accused's admission that he had sexual Intercourse with her was sufficient to connect him with the offense. (Page 397.)

6. CRIMINAL

LAW-APPEAL-REVIEW-HARMLESS

ERROR. Where there was sufficient competent evidence to show that a witness whose testimony was taken at a former trial was on a subsequent trial beyond the jurisdiction of the court, whether other evidence bearing on such fact was properly received was immaterial. (Page 397.)

7. CRIMINAL LAW-RIGHT TO CONFRONT WITNESSES-CONSTITUTIONALITY. Comp. Laws 1907, section 5013, authorizing the admission in a criminal case of testifony taken at a former trial, where the witness is dead or beyond the jurisdiction of the court, etc., does not conflict with Const., art. 1, section 12, giving accused the right to be confronted by witnesses against him. (Page 398.)

8. ADULTERY-Venue-SuffiCIENCY OF EVIDENCE. In a prosecution for adultery, evidence held sufficient to show that the offense was committed in the county charged. (Page 398.)

9. CRIMINAL LAW-VENUE-EVIDENCE. In a criminal case, the venue may be inferred from circumstantial evidence as well as proved by direct evidence. (Page 398.)

10. WITNESSES-COMPETENCY-COUNTY ATTORNEY. Under Comp. Laws 1907, section 3412, providing that all persons without exception, other than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, and section 3413 specifying as persons who cannot be witnesses those of unsound mind, children under ten years of age, and parties to transactions with deceased persons, the county attorney, who was of counsel in behalf of the state in a criminal case and participated in the trial thereof after his term of office expired, and to whom accused made certain admissions, was a competent witness. (Page 400.) 11. CRIMINAL LAW-ADMISSIONS-VOLUNTARY CHARACTER. Evidence held to show that certain admissions by accused were voluntarily made. (Page 401.)

12. CRIMINAL LAW-EVIDENCE-PART OF CONVERSATION. Under the rule that, where a part of a conversation or transaction relative to a subject under judicial investigation is admissible, all that forms a part of such conversation or transaction together with the circumstances surrounding the persons engaged in it are competent to go to the jury to enable them to assign the proper and just effect of admissions made in the course of the conver

sation or transaction, where, in a prosecution for adultery, it appeared that, after accused had admitted to the county attorney that he had had sexual intercourse with prosecutrix, he manifested a willingness to plead guilty to fornication and pay a fine, and, on being informed that the judge and district attorney had to be parties to such an arrangement, accepted the proffered assistance of the county attorney to interview the judge and ascertain his views, what the county attorney told accused as the result of the interview was competent as a part of the transaction. (Page 403.)

ON APPLICATION FOR REHEARING.

13. INDICTMENT AND INFORMATION-ISSUES, PROOF, AND VARIANCE, TIME OF OFFENSE. Where time is not an essential ingredient of the offense, the state need not prove the offense and the transaction out of which it arose at or about the particular time stated in the information, but may prove them at any other and prior time within the statutory period of limitations. (Page 428.)

14. CRIMINAL LAW-TRIAL-ELECTION BETWEEN OFFENSES-INSTRUCTIONS. In a prosecution for adultery, where the state's evidence was directed only to the single transaction alleged in the information, a charge, which, after stating that the offense was alleged to have been committed on or about July 18, 1906, etc., instructed that "the exact time alleged in the information as to the commission of the crime charged need not be proved, for it is sufficiently established under the law if you believe that the unlawful act was committed within four years next prior to the filing of the information," etc., was not open to the objection that the jury could have assumed that there was evidence in the case of several or different offenses similar to that charged and that they were at liberty to convict accused of any one of them if committed within the statutory period of limitations. (Page 428.)

MCCARTY, J., dissenting.

APPEAL from District Court, Seventh District; Hon. A. H. Christensen, Judge.

Webtser Greene was convicted of adultery. He appeals.

AFFIRMED.

* State v. Hilberg, 22 Utah, 27, 61 Pac. 215.

James W. Cherry and Thurman, Wedgwood & Irvine for appellant.

A. R. Barnes, Attorney-General, for the State.

STRAUP, C. J.

The defendant was convicted of the crime of adultery. It was alleged in the information that he, a married man, committed the crime with Madge Morey, an unmarried woman, in Sanpete County, on July 18, 1906. Evidence was introduced by the state tending to show that the defendant in 1906, and for more than ten years prior thereto, resided at Mt. Pleasant, Sanpete County, and that Madge Morey in July, 1906, and for about a year prior thereto, also resided at that place, and that she during that time lived with the defendant and his family. Considerable evidence was had tending to show that the defendant was reputed to be a married man; that his wife's name was Grace Greene, and that they had lived together at Mt. Pleasant as husband and wife for more than ten years; and that Madge Morey, about twenty years of age, was reputed to be an unmarried woman. An affidavit made by the defendant in October, 1903, in a certain cause, was also introduced in evidence in which the defendant deposed that he "is and has been for ten years last past a married man, and is required to and does support Grace Greene, his wife, who resides with him at Mt. Pleasant, Sanpete County, Utah." A warranty deed executed by the defendant and Grace D. Greene in April, 1906, was also introduced in evidence, in which it was recited that "Webster Greene and Grace D. Greene, his wife, grantors, of Mt. Pleasant, Sanpete County," conveyed and warranted certain real estate therein. described. In the acknowledgment of that instrument it was also recited that "Webster Greene and Grace D. Greene, husband and wife, the signers of the above instrument," duly acknowledged its execution. About the 31st day of December, 1906, Madge Morey left Mt. Pleasant and went to the Florence Crittenden Home, in Los Angeles, Califor