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Show THE DAILY DEEDS Ttftl See Utah Const. Art. I, Sec. 12, Sec. U.C.A. 1953, appeal to be taker, "within one month after of the judgment appealed from. " the entry The trial court stated that he sustained the objection, "net tr, the evidence, but to the manner in which you are endeavoring to plvef it re the jury," apparently intending to indicate that as impeachment cf the testimony of Dan Newell no proper foundation had been laid. Hwscnvcrr that might be, due to the considerations mentioned belrw and the fact that this case is thus disposed of on procedural grounds, it would serve no useful purpose to discuss the merits of this ruling on evidence, or the effect it may or may not have had upon the outcome of the trial. 1. Hayooek etuz to Nat Bk; $19,500 21C3 Fact G 1st Zlons Gale Ray Rhodes etuz to 2. Homo M American 4.51 Ditto $7,161. 1251 l:t' ? i or J 2 C? ; 'i v ? i A 4 ' tvr to Title H1'!. i. '. ; ' 1 to cy j -- 5 on 1 7! ri?.! J' 'Jtlor ::a J fi' i" rt Drive Hsh-gva- fills- Look-ha- States Title; Wnatem Co G .M. Koran V?-- n b'est".i Ft,is Li Titlo; tv,0, 000. W Sr., etux to McGbJe Land -- 1 East 15.10 1 Ronald Hanson etuz to 3k 4 Tr Co; $3,629.83 1911 Cecelia Circle Trinity ARE 'alloy etsl Chrueh Americar. Say 4 Ln;$12,6Q0. -rt 32S . wh.-ths- r. Robert The petitioner's charge of being deprived of the "rights to appear and defend by counsel" is likewise stated in such a manner as to draw into consideration the quoted constitutional phrase. We are firmly com- -, milted to the right of an accused to have competent counsel to assist insafe-gmrdlbio lights at all essential stages of a proceeding against him. p.u; he complaint petitioner makes does not actually involve lack of an adtor-ji-- v, A will be 8C'jn from the recitation of facts above, he had an attorney mu original trial, ;.ntl at each of the subs equent habeas cnipus proceedings, it 'i.livJiTiq this civ apparent that in order to excuse the failure to take ' inti, mvv that attorney Leon M. Frazier, who he con- -. he asserts 'opel v.;s hlrn crVs brief cave competent representation at the trial, did not ; v bon as to his right to appeal and how to do so. Inasmuch as pop' rly which does nut take place in court, the ricord is silent as tf : ia t o.'.vc'iit ' Ij i H . Frazier did or did not advise petitioner in that regard. There is no altinuaiivc showing in the record that Mr. Frazier did not advise petitioner concerning his right to appeal. Petitioner's argument rests solely upon his own averment in this proceeding. If any inference were to be drawn r ibe likelihood is to the contrary. Where a person is represented up by a I'Kur.lpr of the Bar in good standing; and where, insofar as the record .hr closes, e 1 e presented the accused in a diligent and capable manner, it seerns fail to assume that he similarly fulfilled his duties in other respects and ndvisvd him concerning his rights. n't Rotellick etux to G -5, ... Ditto; $13,250 Roy 77-39- ht.-fo- Paulson etux to Equity; $12,000 East 3H South Frederick 1970 made it known to defense counsel that he would testify in behalf of petitioner Max Johnson that he had heard Dan Newell say in a conversation that he had given Johnson permission to take the guitars to raise some money on them. Upon Smith taking the stand and being asked about this conversation, an objection was made on the ground of hearsay. Ditto frederlok MONDAY, AUGUST 31, RECOUP H'-fc- Ay TrisrgJe Const Inc to 1st Co In; $27,500. Fed Sav 1551 Colony Drive Thus, in summary, we have a situation where the petitioner, with by counsel, has had a jury trial which resulted in adequate rep? esnt-tic- n a verdict rf giv'ty; a judgment was entered thereon from which no appeal was tab-at J m h.rj became final. Any defect or error there may have been therein should have been the subject of an appeal. And beyond this, there is the adjudication on his previous petition for a writ of habeas corpus. If there had beer ary substantial failure to accord the petitioner his rights in connects vit is origin?! trial, that failure was as well known to him and his counsel at the time of the first habeas corpus proceeding as it was at the time f.i filing this rre. Therefore those matters should be deemed res adjudicata So the finality of petitioner's judgbecause of the linality of that judgment. ment and convict? oi? was in double depth before the instant proceeding was commenced. X That there should be no reversal of a judgment for mere error, but only if U.C.A. 1953; State v. Estes, substantial and prejudicial, see Sec. 52 Utah 572, 176 P. 271; State v. Myers, 15 Utah 2d 130, 388 P. 2d 801. !. Gae Dcuplas v. California, 372 U.S. 353; and Alires v. Turner, 22 Utah 2d Ilf., p.'zj s 211, and authorities therein cited. cr-iuir; proceeding burden is upon petitioner to prove facts . U i.:;u tu rel.t.-seu i.i McCjffey v. Turner, 18 Utah 2d 354, 423 P. 2d 166; .j VM- .' Hjii.'i. 1.35 Kan. 183, 31iP.2d 1009; State v. Lopez, 79N.M. 235, 1 Don Wright etux to 1st Sac H Ss Title; 3 4536 Shr"-s- 1st $Lf,0?0. Butterfield CTrcel 219 Jr o tu $l6,C50. Title; Jensen R See 2k Sec Star IMt New 77-42- Serosnic etux to 1st St 3k Sec Title Gj; $15,400. Frank D 9374 Forry I "re In The Supreme Court Of The Stale 0(1; !ah Max M r r 1 JohnW. Turner. W.T.r.ten. Utah State Prison, Del e n'htr.r and Respondent, -- .:f , 1 - 1-- . . j lii.it si.ch a judgment is final and not ordinarily subject to attack for mat- ,! ;cb coo!:, luu1 been reviewed on regular appeal see Bryant v. Turner, 19 Utah 2d 254. 4J1 P. 2d 121, noting discussion by Justice Murphy in Price v. J 286,. 68 S. Ct. 1049, 92 L.Ed. 1356; see also Ex parte S. !I. , Utah 2d 186, 264 P. 2d 850. : ..bjif-ton- , 1 in Brown v. Turner, 21 Utah 2d 96, 440 P. 2d 968; and Vcbtsqu'.: v, Pratt, 21 Utah 2d 229, 443 P. 2d 1020, and authorities therein citd fn proposition that where error is something which is Vnown to the. party at the time of judgment, or of previous application for writ, ihe previous judgment is res adjudicata and not proper subject for subsqilent application and Fav v Hna. 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, and Sanders !h it- -'. Slates, 375 U.S. 1, 83 S.Ct. 1068, 10 L. Ed. 2d 148. 7. I V. ! 'fK Chief Justice: CROCKETT. i 6. d : g ')n-ra- lii iv. Plci;e.riff ;n.1 Apppllar-?- -1, See , This is an appeal from order ,?n ! '... .Jn,:g- s - 1 t'e N Fourth District Court diemies7'.p n poiiti.,: .1: V '.. of j writ i ia-- , of habeas corpus which atta ks his tenv, tiou totwo ny U!.-hThe order guitars from the Metro Music Center in American stated two bases for denying ?; e vrii: (1) 'hat tu- - in,-,- fo - raised therein were issues which should hav brn r,:isod on aincai, and (2) that the applii cation was repetrivu, as had prtAu'iml-- isl-a writ cf habeas hv On this appeal the Third Lb" riel Cour corpus which was denied and also a reversal 01 his conviction petitioner seelo roxersal ' th.--' or on the grounds that: (1) was n.f p.ri ;;tt:d to)iae "witnesses in bis oa n i t d : behalf" and (2) that : "r'c1' to mmfn.i j.y co-.- el." - : b.- . r :.-- : d h- l- stands , -r; Detitioimr us 'Mcii!all tried i ''vrth 01 v: t .! in th-- ' ! 1 rept es e'.t ed att iniev l .,'V.n 1 -- 1 1 v I by a Im'-- Frarier. jury for the crime of which be n P'ehpurv 3 1868, He was t The judgment and omrnitnient p; held w under whii h Marih 1, 108. Ho api-- l' vas taken therefrom and the mdg". :ii ivninr iinal on April 1, 198I:i October 168, i nt had six months aftei- t!;t lr'.m brom,; final, petitioner sought his release by filn c 1 rc,,t!'n tor a writ of habeas corpus in t'm Fourth District p'ra-ier- . which hi1 igaiv ini on n, ec.fi : assistance of a, t That pro, ti 'he Third District Cv.-wb.eroin petirg 1 f tioner hid 'b'- ,1 . - t.i.'.i1 e 0! tl"1 Axl.and Lake County i'ilt vi'v oRoy f.l i A h wii-t!i reon e. held was m Lpg .'0,1969. The b' ri.o o'-, trial jwdiO , an order to be nteied on January 11, 1969, denying lha' Agii:. there was no timely appeal taken from that judgment. Thi ri w.ir. ii, (ffrt at an ap; e,jd t elatedly on March :i '...i s ' 6, 1969. wb.h1 y this (hi'iit an pursi'au appropriate motion. by 't . M, c-'-te- 1 f veritable mockery cf the rules of procedure to permit a person to lgroTe the time limitations fot taking procedural steps and obtain 4.1 ?rf review of a judgment at any time he takes a notion by ?. habeas corpus proceeding. The efficient and orderly administration of justice respect for the finality of judgments regularly arrived at dem-t that the iner of litigation stop somewhere. Notwiththe we note here and reaffirm our previously stated standing foregoing, that it where iton l appears that there has been such miscarriage of justice that it would be unconscionable not to a cqpviction, ?H :.r for some justifiable reason an appeal was not taken thereon, we llC,J regard rules of procedure as being so absolute as to prevent us frern correcting any such obvious injustice. 8 Nevertheless, on the basis of what we have said herein, we have found nothing in this case to us to disagree with tho ruling of the trial couTt in dismissing the ion. b m.-l-o- cll-Vi- - - ine yy- - per-f-ia- pH it - - . Affiimcd. No costs awarded. tj'-itb- i- - - S-- : WE CONCUR: j -- hi'-.v.-i- E. R. Callister, 1 s.-c- Four Ti',1 :.ti. !t',r fbe s lii'fei'.c, t inoliu-- l'n". by the filing Sorensen and the t ir---- ? r r ; : r Triiratvou of th" lirst the mstart sv b. p.,"!i:!i. Ti.is was t t;pejl w.s taken from Iv : d g n r 1. tl r , p1 corpus w ,1 . emu'en. , R. L. pro'-ee-'-in- i : ' . f Tuckett, Justice . ny Te.l j , F. Henri Hcnriod, . ' h f Jr. , Justice J Mi H. Justice Eliott, Justice i smith Blow;, v Fu i'1't1. ) i , fculrmleTTbove. de |