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Show PAGE SIX THE v " In The Supreme Court Of The State Of Utah I No. 12135 FILED v. February 22, WEDNESDAY, FEBRUARY RECORD - " State of Utah Plaintiff and Respondent, DAILY make a satisfactory explanation, shall be deemed prima facie evidence of guilt. or otherwise Here the defendants made no explanation-satisfact- ory their possession of the camper, and I think the jury was justified in finding them guilty of larceny. I would, therefore, affirm the judgment of conviction. --- CROCKETT, Justice concurs in the 1971 24, 1971 of opinion of Mr. Justice Ellett. dissta'ag Phillip Cooper George and William Wade Thompson Defendant and Appellants. New Corporations Bankruptcies L, M. Cummings, Clerk - Janes M Allred, 126 Navajo, sic; Salesim, West Chen Pod Uab $17113.95: Assets $152.; Exempt $150? 130 HENRIOD, Justice; Appeal from a grand larceny conviction. Reversed. - Bdris 131 truck with camper attached disappeared from a used car lot. About a week later the camper was sitting on E's premises. The truck's whereabouts has not been determined. Defendants jointly were charged with the theft of both. The evidence was circumstantial, absent which, any hope for conviction could not be entertained. Without detailing all the facts, it may be said that they provoked a strong suspicion of guilt, but insufficient, we believe, to establish it beyond a reasonable doubt. Defendants were convicted almost solely on the testimony of Mr. and Mrs. E, who said defendants had brought the camper to their place and asked them to find a buyer which they did; that they received the $600 purchase price in cash, gave it to one of the defendants, who in turn gave them $100 as commission for the sale. The camper was impounded by the police before a man hauling it to the purchaser made the delivery. The purchaser contacted the defendants and he testified that they offered to give A the money back. Allred B 539 Cheyenne, ale; Ben Fbrd Co; Lkb Bookkeeper, $18136.09; Assets $2281. 70; Exempt $2385. Jean Rasmussen, 130 E Jrd So, Smithfld, Sales Manager, Prud Ins Co; Ilab $22133.25; Assets $5700. Exempt - Irene Georgina Gavros So 20th E, sic; Steam Presser, Vogue Cleaners; Llab $2930.33; Ford, Bacon li.'Javis Texas Xne, 176 Fblder, Without the testimony of Mr. and Mrs. E. by their own admission fugitives from the truth, who obviously "copped out" at the suggestion of some sort of immunity by a policeman , the state's case could not have gotten off the ground. This case has a complexion giving rise to one reasonable hypothesis inconsistent with that of larceny. - the possibility or even probability that these two may have been "fences," not "thieves." But the defendants were not charged with trafficking in contraband goods. We believe that there are other hypotheses inconsistent with a larceny that could be constructed out of the tenuous facts extant here. For this reason, the unusual action taken by the trial judge seems significant, when, after all the instructions had been given to the jury, he scribbled another one in his own handwriting on a piece of yellow paper, which almost appeared to be a hint or admonition to the jury to pay particular homage to the rule requiring facts sufficient to establish guilt beyond a reasonable doubt. Here is the instruction he wrote: "You are instructed that a person who knowingly receives stolen property, or who pells property knowing that it was stolen, is not guilty of larceny. " In giving this instruction in light of the facts of this case, it appears that the court itself suggested the matter of reasonable doubt and supplied an hypothesis itself that reasonably is inconsistent with larceny. In these days where the American public cannot be condemned too much for concluding that the criminal seemingly is the master of his fate and captain of his soul, surrounded with some decisional safeguards that sometimes drive prosecutors up the wall, there are cases like this one, where it is not so much a matter of polarizing and protecting a criminal's unalienable rights, but one where the judiciary must look to the safeguarding of the traditional American system of common, decent and reasonably fair treatment, to the effect that the common weal and the bundle of human rights fare more conscion-abl- y if a guilty one might on occasion where proof is lacking, go free rather than gamble with the lives of those who might be guiltless. so-call- ed The jury system we think is the best yet devised for free, fair justice. Sometimes, however, as does the finest mechanical device, it may slow down, or stop, or break its mainspring. It is not infallible, and hence lends substance and rjeason for this court's existence and its obligation to protect an individual's freedom and other rights against tyranny, unreasonable, impetuous or legal irregularities of others, including those indulged by juries that wittingly or unwittingly depart from the instructions or otherwise disregard the invaluable presumption of innocence. 136 - Robert Cooper Uhversaw, 570 No, Orem, Offset Stripper, Uab $17895-32- sic; Dir: 961 Ron w BYU; Assets $5309.57; Exempt ; $1809.25 Steven Pearson, Thomas sic; Mech, ttiengiloyad; Assets $350.; Exempt 111 Well, Uab $1596.; 139 - David Richardson, 19 A USU Triads Logan; Student, USU; Uab $3336.17; Assets $1170; Exempt $820. - Oolin Eugene Henry, 1860 So 5020 Kenn Cbppef; Kearns; Uab $20201. 62; Assets $300.; Exempt 110 W, Kach-Appr- 2665 y'd - Estella 112 Ann Bennett Anderson, - Billy Martin, Arthur 13 - Wanda Capps, Unemployed; $205. Exampt 439 E 2050 No, No Ogd Uab $7016.63; Assets $662.; 223 Morrell Weston Sohs Ranching Co, Morrell Weston, J Simeon Weston, Lucille C Weston Health Serv Managewent Bureau, Inc, 1955 So 1300 B, ale. Dir: Melvin K Knight, Wayne A LLoyd, J Barl Hurst Inc, 1303 4th Av, sic. Dir: Latimer, Ruth N Latimer, Lynn B Foster Cmpr & Trlr Sales Xnc, 310 H W Henderson, 36 Layton Cr, Layton; Maintenance, Layton City Corp; Uab $6263.; Assets $525.; Exempt $235. Lyman Jr.. Miller, Rubber Stamp Co Inc, 4766 For tuna ale. Dir: Kenneth B Zaba, Chris tine Zaba, Gerald e Dir: Phil Turner L Corp, 3009 So 1640 E, sic. W Dern, Mildren L Dern, Jr James L Barker Squire Longe Inc, 1102 So State, sic Dir: Fred N Cazier, Jean L Cazier, t K Louis David B W Keith Dee, 2121 So G & Grating Co, inc, 404 Kearns G Kith sic; Directors: D B R R. L. Tuckett. Justice P dissent. That defendants were in possession of recently stolen property is shown their by presence at the time of sale of the camper, their employing Frank Elsbury to sell it, their receipt of the six hundred dollars for the sale thereof, and their paying a commission to Frank Elsbury. The theft of the camper was established beyond a reasonable doubt. The question is: Who did it? U.C.A. 1953. reads as follows: Some- Basic Buying, Inc, sic. Dir: Bverett Scoville, Michac State Str, sic R Ben R 1931 So W Byers, Frank 225 B isbury 900 So. Dir: W J Philip B Clyde, David Aero Machine Shop Inc, 35 No 2300 W, sic. Dir: Ray Satterfield, Dorothy C Satterfield, Jimmie B Wysong sic. Dir: N Sc Sal: 17th Ave, sic Jolly Dir: Stanford P Darger Jr, Robert C Wilkinson, Roberto Angiolini Earth, Inc, 345 Vibert Greenamyer, L So State, Ksler Jr, Dale Jay Curtis Gary Robert B Wells Inc, 1369 W 7900 So, Mdvl. Dir: Robert B Wells, Lynn S Porter, Robert M Riley Woodard Custom Cabinets & Remodeling 3155 N Hiway 91, Pleasant View. Dir: Wm A Woodard, Mary Louise Woodard, Shriley W Woodard J CLub USA, 818 8th So, sic. Dir: Bthel Shalata, Helga Viola, Irene Merrick The Good Apparel Sewing Contractors of Am, 11 Douglas St, sic. Dir: Lionel L Drage, James B Larson, Reed L Reeve Inc, B H Wilde Tire Serv, 395 So State St Provo. Dir: W H Wilde, Frances S Wilde, Carlene W Murray. 11th B, Mitchell 14 Bennett, W 21 TGI t 2100 North Atlantic Holdings Inc, 819 B 2100 So, sic. Dir: Paul A Sharrott, Darhl J Janis, George M Janis Perlman, Edward Larceny is the felonious stealing, taking, carrying, leading or driving away the personal property of another. Possession of property recently slulm, when the person in possession fails to Grund-ma- n, vid Rawson. Grndmann, Pacific States Inv Inc, 819 E So, sic. Dir: Paul A Sharrott, R Jessop, Darhl J Janis ELLETT, Justice: (Dissenting) , Blue Ox Inc, Chief Justice B Way, Phil-Ra- 10100 So, Rrrtn; Trackman, Kenn Cbpper Corp; Uab $22767.32; Assets $1256.; Exempt S Wtymsn2862 H Brin Miller, June Miller $50. Arthur Bn-t- fl. Hans- & Randolph, Dir: 300 So, Salem. Dir: Roy Richard Lee Fedel, 2855 W 3086 So, Granger; Clerk, Denver A Rio Grande RR; Uab $686?.21; Assets $195.; Exempt - No M Aaso Suppliers Inc, 2327 Logan Way, sic; Dir: Benjamin T Lewis, Joan S Lewis, Joseph B McPherson, Marta B McPherson Miller Canyon . - Chateau Corp, 1351 Sereno Cr, Dir: J Blair Jones, Paul en, Marie B Hansen G Exempt $1029. 168 & H Bouquet Village Floral Dis Inc 2979 Wall Ave, Ogd. Dir: Sheran M Sa cco , Jan Highan, Lee G Highan Wm Housewife; Uab $8928.91; Asa $1536.; 16? Davis Q W S Bio-T- ek - Driver, Stout Cbrp; G. 5$8862.07; Assets $1531; Exempt $102S 166 Jr, Dwight Peoples Auto Parts Inc, 3875 So 9th B, sic. Dir: Edward J Voda, Kent T McLelland, Doris J McLelland Edgar Capps, 139 E 2050 No Ogd; Clerk, Southern Pse RR 0o; Uab $7011. 63; Assets $162.; Exempt $205. No Bdgar sic Dev Co, 175 So Mn, Stern Tanglewood Condoninun, Inc, 1399 So B 10, ale. Dir: J LaMar Richard Mark B Anderson, H Austin Belnap $713. Bldg, 76-38- -1 ir: B 7th 3210 So, sic; Med Assis, th emploUab $81611. 51; Assets $17319.10; Exempt Birkenahaw, Rots Lyons, en, E 5 Street Royal 137 - Richard L Hansen dba Dick Hansens Gar, 721 So 3600 W, Ogd; Llab $11136.17; Assets $177.; Exempt $177. iy? - Mb Shepherd Dir: David B Dee, Wallace Lane Wilkins E. R. Callister, k Ic, Hawke ye Xnv, Xnc, 3978 So 2120 B, Now Corporations Section 1377 Everett Dare To Be Great, Ave. Layton; Dir: Glenn W Turner, Bp U Bunting, Clyde Cobb Llab $25291.17; Assets $3665.; Oo; So Mi, Enterprises, 175 Kandi L Miller, an sic. Dir: Gregory - Harold LaMar Jones, 1016 Boothlll sic; Fine Crush Op, Kenn Cbpper Dr, Culpepper Jr Kleppinger , Fred Trupp, Sharon Ann Lundien. Assets WE CONCUR: body stole it. Sha-Gre-K- P Westerhof: sic; Dir: Russell C MN, D W $20.; Sxenpt $55. 135 R Lab Xnc, 4089 Taylor Av, O91 M Hansen, Dean P Hannond, Bason InterXek Controls Xnc, 1676 So 1900 Ogd ; Dirt Terence J Gooding, Patr: icia Gooding, Ronald A Vnden Berg Exempt $3590. There was no evidence as to whether the defendants or either of them or neither of them took the truck and camper, save by way of inference from their presence when the camper was left and sold and one of them was handed the purchase price, and we believe that under the facts of this particular case, the jury had to indulge an inference upon an inference that could lead but to conjecture not justifying a conclusion that a theft was accomplished by both or either of the defendants beyond a reasonable doubt and to the exclusion of any reasonable hypothesis other than theft. I Harold So 2980 CSook, Dir: Paul W, 133 131 Clinical Ranching Co, Norman B Weston, Lake town, Dir:Norman B W Baton, Lan-n- y B Weston, Nethelle W Weston W |