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Show PAGE SIX THE DAILY MONDAY, FEBRUARY 22. 1971 RECORD In The Supreme Court Of The State Of Utah Provo, daughter Mr. and Mrs. Michael D. Caldwell 108l 2780 East, son Mr. and Mrs. Kent Kuhn, M55 Gordon Ln, daughter Mr. and Mrs. Sherman G. Fuller, 101 W. 2350 South, Bountiful, son Mr. and Mrs. Euel W. Kennedy, 19l5 Sunnyside Ave, son Mr. and Mrs. C hris J. Angelos, 8315 W. 2700 South, Murray, daughter Mr. and Mrs. Marvin Reid, 170 Jefferson St, Midvale, daughter Mr. and Mrs. Gordon Coles, 591 Elaine Ave, son Mr. and Mrs. Marvin H. Gale, 2027 Roberta 9t. daughter Charles H. Blacksher 2553 So. Hermostead, daughter Mr. and Mrs. Blair W. Sorenson Mr. and Mrs. 1129 Princeton Ave, daughter Mr. and Mrs. John D. Dixon, 1118 Denver St. son Mr. and Mrs. Lee 0. Larsen, 213 lth W. North, daughter Mr. and Mrs. Allan L. Trone, 1179 So. 1080 Vest, son Mr. and Mrs. Gary D. Henderson 2361 Logan Way, son Mr. and Mrs. L. Randall Wootton 132 Elizabeth St. daughter Mr. and Mrs. Donald Shepard, 1393 29th East, son Mr. and Mrs. Wilbur Farrell Ogden, daughter Mr. and Mrs. Ronald V. Belnap 38I Driggs Ave, son Mr. and Mrs. George A. Staker 2731 Louise Ave, son 31. MARK'S HOSPITAL Mr. and Mrs. Ronald Duplisea, 290 No. 100 West, Bountiful, son Mr. and Mrs. Arnold Walker 760 9th East, daughter Mr. and Mrs. Gerald Meyers, 3671 S. Lee Maur, Granger, daughter Mr. and Mrs. Wayne Maxwell, 738 Browning Ave, son Mr. and Mrs. Gary DiBello, 3883 So. 6100 West, daughter Mr. and Mrs. Clay E. Johnson 1191 El Sendero, son Mr. and Mrs. Clifford Nebecker 1265 llth East, son Mr. and Mrs. Alexander Mondra- - gon, Tooele, son HOSPITAL UNIVERSITY Mr. and Mrs. Michael S. Winward, 2210 E. 3020 South, daughter Mr. and Mrs. William W. Farrar 1310 Yale Ave, son Mr. and Mrs. David Jackson, 8ll Green St, daughter Mr. and Mrs. Garry Cole, 1076 E. 7625 South, Midvale, son (hr. and Mrs. Raymond Lum, 1378 Roberta St. daughter Mr. and Mrs. Kent Creer, 132 A University Village, son VALLEY HOSPITAL WEST Mr. and Mrs. Harold Munro, IOC E. 150 South, Farmington, son Mr. and Mrs. 5255 daughter Mr. and Mrs. Steven L. Tibbltts 5ll E. Center St. Midvale, daughter Mr. and Mrs. Franklin R. Walker Roosevelt, son Mrs. Terry L. Johnson Mr. and 1236 E. Mr. and 119 6th HOLY Mr. 8725 South, Sandy, son Mrs. Daniel M. Montoya, Ave, Midvale, son CROSS HOSPITAL and Mrs. Dennis Wright, Grantsville, son and Mrs. Gordon J. Sadler 3085 So. 8850 West, Magna, son Mr. and Mrs. Dan Wilding, 12113 So. son Mr. and Mrs. Floyd Redwood Rd, M. Frans on 580 1132 So. West, Woods Cross daughter Mr. and Mrs. Clayton Hutcheon 6790 Greenfield Wy, daughter Mr. and Mrs. Benito Quinonez, 519 W. 3rd South, son, daughter Mr. and Mrs. David C. Canham 1273 W. 1505 South, Taylorsville, son Mr. and Mrs. Oscar Franco, 821 W. 2nd North, son Mr. and Mrs. Reuben A. Lambert 986 E. 5750 South, son Mr. and Mrs. Boyd M. Simpson 128 E. 7100 South, Midvale, son Mr. and Mrs. Carle M. Harvey Hadley, daughter Mr. and Mrs. William R. Mugleston 10263 Peony Way, Sandy, daughter Mr. and Mrs. J. Ralph Parker, 230 E. 7165 South, Midvale, daughter Mr. and Mrs. Elden C. Robison 135 E. 6910 South, Midvale, son Mr. and Mrs. G. Gary Simnor.s 925 Best Ave, son Mr, and Mrs. Cerry D. Spencer, 3W Ranta Rosa Ave, son Mr. and Mrs.' Calvin H. Pray, 181 Helm Ave, son Mr. and Mrs. Clyde Goolfellow 2331 So. 3000 West, Granger, son '4r. and Mrs. Wallace Seeley, 1253 o. 8 veL, iibii 1971 L. M. Cummings, Clerk HENRIOD, Justice: Appeal from a rape conviction. Affirmed. Substantial, admissible and competent evidence viewed favorably to to have been respondent shows that defendant, proven on 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 12, and at knife-poin- t, 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. cross-examinati- on Mr. Van Dam aays that 1) The court erred in not granting a new trial on the grounds of 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 aa being without merit. newly-discover- ed 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-wis- e 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 cornea naturally, but not with the defendant, whose history did not commend itself to any subscription to the Boy Scout Oath. WE CONCUR: E. R. Callister, daughter Jr., Chief Justice R. L. Tuckett, Justice Mr. and Mrs. Ralph C. Burgess ll69 W. 78OO South, West Jordan daughter Mr. and Mrs. S. E. Brinkerhoff 1035 Serpentine Wy, Sandy, A.H. Ellett, Justice daughter Mr. and Mrs. David J. Allan Crockett, Justice Tooele, daughter Mr. and Mrs. Ronald Burton, 2320 Lamboume Ave, son Mr. and Mrs. David Fullmer, Mon- - ticello, son Mr. and Mrs. James Perkins, 1793 Ann Dell Ln, daughter Mir. and Mrs. Bruce Ream, 1555 E. 3900 South, daughter Mr. and Mrs. Wolfgang Scholz, 6l W. 2900 South, Bountiful, daughter Mr. and Mrs. Paul Duvrls, 2ll Beryl Ave, sen Mr. and Mrs. Dennis G. Bartholomew 1506 E. 1160 South, son Mr. and Mrs. Henry A. Let ate, 221 Pueblo St, daughter Mr. and Mrs. Drexel B. Dickinson 3155 S. Brock St, Granger, daughter Mr. and Mrs. Craig Lawson 133 9th East, daughter Mr. and Mrs Ardin B. Hewitt, 10l3 Buddie a, Sandy, son Mr. and Mrs. Douglas C. Garvin 611 6th East, daughter (hr. and Mrs. Ernest R. Burgess 1735 So. 1520 West, Kearns, son Mur. and Mrs. Jon P. Christiansen 570 No. 1st West, daughter Mr. and Mrs. John E. Fhilpot, 3136 So. 6190 West, Magna, daughter 155 15th East, daughter Stephen Michael Van Dam, Defendant and Appellant. Robertson, Wyo, daughter HOSPITAL 268 February 17, Mr. and Mrs. Alex B. Gilbert, 1505 Colony Dr, daughter Mr. and Mrs. George Baumann, 1987 De Prado, daughter Mr. and Mrs. Gerald Ackerman 10291 Amaryillis Dr, Sandy, daughter Mr. ar.d Mrs. Robert E. L. Marshall, Jr. 3281 Sc. 7615 West, Magna FILED v. Mr. Mr. and Mrs. Ired V. Benz, 2HC W. 300 North, West Point, son COTTONWOOD No. 12050 Plaintiff and Respondent. 609 No. 100 West, Sandy, daughter and Mrs. Gerald T. Hicken Hunter, Mr. and Mrs. Gene A. Bolton, E. 6125 South, Sandy, son Mr. and Mrs. Clarence Dee State of Utah. Mr. Leonard Judkins 3990 South, W. and Mrs. Robert L. Park Tabiona, daughter Mr. and Mrs. Darrold D. Harris, Provo, daughter Mr. and Mrs. George H. Milligan 823 9th East, daughter Mr. and Mrs. Spencer L. Nunley, 5980 Highland Dr, daughter Mr. and Mrs. Argyle Raiford, 733 E. 2700 South, daughter Mr. and Mrs. Elmer A. Sterling 1185 E. 13100 South, Draper, Mr. LDS HOSPITAL Mr. and Mrs. Richard W. Haight 9565 1335 East, Sandy, daughter Mr. and Mrs. Larry Hepper, 251 E. Baird Ave, daughter Mr. and Mrs. Donald Carpenter 1585 Redwood PI, son Mr. and Mrs. Nick Castleton 318 toh Ave, son Mr. and Mrs. Dennis R. Edmonds, 230 6th East, daughter Mr. and Mrs. Gregory L. Miller, 2937 9th East, daughter Mr. and Mrs. John A. Ross, 3752 Red Maple Road, son Mr. and Mrs. Craig L. Nelson Rimtmbti pledging all-gian- to tha flag in achool? Il'a a diMarant acana now. Timaa hova changad. A young man old anough to know battor nina-taaworn tha American flag aa a poncho. Hia ala tic concept oi civil libartiaa landad him behind bara. Tha Judge aantancad him to lour month and finod him $250. Thi boy isn't a Iona in hia co un raaction again! our American tradition. A national magaxina displayed a lull color picture oi a modal In bad, sheet, draped in with pillow cases to match. Tha American flag ia parodied in bikini balhlngauila. Trouser patches. Shirt. Tie. Obscene Aims. Must wa acAnd cept this abuts? Wouldn't wa b to return to tha value and standards on which our country was founded a love oi liberty and a healthy reaped lor law, order and tradition? n - r The State of Utah, No. 12259 Plaintiff and Respondent, FILED v. February 18, Juan P. Jaramillo, Defendant and Appellant. l7 1971 M. Cummings, Clerk CROCKETT, Justice: Defendant was charged with the crime of robbery. After first entering a plea of not guilty, he withdrew that plea and pled guilty to the charge. Pursuant thereto he was sentenced and committed to the Utah State Prison. Thereafter a determination was made that in connection with the entry of his plea he had not been accorded proper protection of his constitutional rights, and the judgment and sentence was vacated. In subsequent proceedings he again entered a plea of not guilty and, upon a trial by jury, was duly convicted, sentenced and recommitted to the Utah State Prison. Defendant raises the issue of former jeopardy, arguing that the trial court should have submitted that question to the jury for its determination, U.C.A. 1953. It is true that that section provides for the citing Sec. determination of such an issue by a jury. However, this presupposes that there is such an issue for determination: that is, that there is some basis But in this case there wan upon which reasonable minds ould so conclude. no such issue. Taking the facts exactly as claimed by the defendant and as recited herein, there is no basis upon which former jeopardy could be found. 77-27- -1, Where the defendant has complained of errors that vitiate the prior proceedings and judgment and they are nullified at his request, he cannot then take the inconsistent position that there was a valid proceeding and judgment against him which constitute a former jeopardy. When he makes such a successful attack upon his conviction because of some prejudicial error, what he is entitled to is a trial or other appropriate proceeding in the absence of the error. Defendant's other complaint is that ii imposing sentence and issuing the commitment the trial court failed to give him credit for 30 months incarceration under the previous sentence. It is not be doubted that fairnesa and justice require that where one has already served a part of the sentence for an offense, if something has proved amiss so that the conviction or the sentence must be set aside, and there are further proceedings pursuant to which he is again sentenced for the identical offense, he should have credit for whatever portion of the sentence he has already served. The difficulty here is in devising a mathematical formula to give the defendant such credit. Under our State law the penalty for most crimes is an indeterminate sentence by which the trial court imposes a minimum and maximum and it Is left to the Board of Pardons to determine the actual amount of time to be served. 5 The penalty for robbery is "for a term not less than five years, and which may be for life. " In order to give the defendant literal |