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Show THE DAILY RECORD THURSDAY, MARCH 26, 1970 PAGE FOUR In The Supreme Court Of The State Of Utah SUPREME COURT DECISIONS ( Continued from Page 3 ) State Prison and went to California, where he was convicted of violating Section 12021 of the California Penal Code, i. e. , of the crime of possession of a and is presently incarcerated in the prison of that firearm by an ex-fel- on, state. He can see that his present situation might be improved if by some means he can turn back the hands of time and undo the Utah conviction. In attempting to do thi6, he filed a petition for writ of habeas corpus in the District Court of Utah wherein he was originally convicted, alleging that he was unlawfully detained in the State of California. This was a frivolous petition and was properly dismissed by the trial judge. No service was had upon the California warden; and even if he were before our courts, we would not undertake to release a prisoner held by order of the California courts. The general law is found in 39 Am. Jur. 2d Habeas Corpus 105, which reads: a general rule, a court has no authority to issue a writ of habeas corpus directed to a person outside its territorial jurisdiction, since it is a cardinal principle of law that no sovereignty can by its judgments or decrees directly bind or affect property or persons beyond its limits. . . . As An exception to the general rule can be found in the case of Application of Morse, 7 Utah 2d 312, 324 P. 2d 773 (1958). However, that was a child custody case wherein it appeared that the child was domiciled in Utah but kept in Idaho by a party to the proceeding who had the ability to produce the child in court. That case is no authority in the matter now before us. Mr. Crouch also moved 'he trial court to vacate and set aside the judgment of conviction in Utah for the reason that he had no lawyer at the preliminary hearing. The trial court denied that motior, and this appeal is chiefly concerned with that ruling. Appellant cites some Federal cases which he contends will persuade reverse the trial court. The matter of which he now complains could have been raised on his appeal which he voluntarily caused to be dismissed, and so it is not properly raised by his motion at this late date. us to Even if he had pursued the matter on his original appeal, he could not have prevailed. The Federal cases he cites involved the lack of counsel at a "critical stage of the proceedings." In Utah a preliminary hearing is not a critical stage in a criminal proceeding. No plea can be given, and the only purpose of having a preliminary hearing is for the committing magistrate to ascertain if there is evidenc e r.c war ram holding the defendant to answer a charge in 18 Utah 2d 354, 423 P. 2d 166 (1967); Guffey v. Turne the District Court. See Seibcld v. Turner, 20 Utah 2d 165, 435 P. 2d 289 (1967); Pointer v. Texas, 380 U.S. 400 (1965). A preliminary hearing serves the same purpose as does a grand jury investigation. The record shows that at the preliminary hearing Mr. Crouch was properly advised as to his right to counsel ard that he voluntarily waived hat right and represented himself. Howevr, at arraignment in the District Court he was selection, who continued to represent him represented by coun&ei of his throughout the trial. That he was not impecunious is made evidert by the fact that he was released on a corporate bcr.d fer which a premium would have to be paid and that he secured an attorney of his own choosing and at his own expense. or The trial court properly de r.ied .he motion to set aside the judgment, since it lost its power to do so after c.omm'tmert ard sentence. State ex nJ Reid, etc:., v. District Cou-- t, 218 P. 558 (Mont. 1923): State v. Porter, 301 P. 2d 704, 711 r Cr. Law (Mont. 1964); State v. Johr.sc n, 269 P. 2d 769 (Idaho 1954); 5 Whar-.oSc 2191. 12th Ed., Sec. Procedure, The judgment of the trla. court Is affirmed. No coss are awarded. WE CONCUR: On September 27, 1968, at approximately 9:00 o'clock p. m. , two men entered the International House of Pancakes at 141 East young Broadway, Salt Lake City, Utah, where they ordered coffee. It was served by Judy Mitchell and thereafter they remained at the restaurant for approximately 30 minutes. Upon leaving, the two men approached the cash register where the taller of the two produced a gun, and his companion extracted the sum of approximately $470 from the till. During these events Barbara Horn, an employee of the restaurant, was at the cash register. After taking the money the two men backed out of the restaurant and fled the premises. Approximately four weeks after the robbery Mrs. Mitchell was riding to her home with a deputy sheriff of Salt Lake County in the officer's automobile. As they passed a drive-i- n restaurant in the vicinity of Highland Drive and 33d South Street two men were standing in the street. Mrs. Mitchell thought she recognized one of the men as one of the individuals who had held up the Pancake House. Mrs. Mitchell stated that fact to the officer and he turned the auomobile around and returned to the place where the two men were standing. One of the men was the defendant. The officer called the defendant by name and spoke to him without getting out of the automobile. With the iurther observation and alter hearing the defendant's voice, Mrs. Mitchell concluded that the defendant was one of the individuals involved in the robbery. On December 13, 1968, Barbara Horn was at the Salt Lake City Police Station to view i lineup in connection with the robbery. She was unable to make an identification at that time, but she was taken to the courtroom of the District Court where the defendant was on trial for another offense. The oflicer instructed her to enter the courtroom and to look for anyone familiar. At the time the defendant was on the witness stand. Miss Horn was of the opinion that the defendant bore a resemblance to one of the men who had committed he robbery. At a later time in connection with the preliminary hearing. Miss Horn again observed the defendant, and after seeing him walk from the courtroom, recognized him as one of the men who participated in the robbery. Prior to trial the defendant had given notice that he would rely on an aunt in Salt Lake City duiing the an alibi and that he was at the time of the robbery, and that later he was in Midvale, Utah. Various witnesses and the defendant testified as to his presence at his aunt's home in Salt Lake City. There was also testimony that the defendant was in Midvale later that same evening, where he became involved in a fight, and that he was arrested as a result of his participation in the affray. home of reversal of his conviction upon two grounds. The defendant first claims that the trial court erred in permitting The defendant is here seeking a the in-co- identification of the defendant by the State's witnesses and urt without notice to the defendant, and without regard concounsel at to to be his right frontation between represented by the witnesses and the defendant. With respect to this claim of error the record indicates that the witness, Judy Mitchell, first recognized the defendant as resembling one of the robbers from a passing automobile, and there is nothing to indicate that this confrontation was arranged by the officer or that he was aware that the witness would recognize the defendant. The other State witness, Barbara Horn, first confronted the defendant after the robbery in question at the courtroom where the defendant was on trial for a separate offense. The witness was of the opinion at that time that the defendant resembled one of the robbers, but she was not convinced as to the defendant's identification as being one of the robbers until the time of the preliminary hearing, when she was able to further observe the defendant. On neither occasion was the witness informed that the defendant was one of those suspected in the robbery, nor was any suggestion made by the officeiri which might influence her identification of the defendant. We are of the opii..Oii that the identifications of the defendant by the witnesses prior to the trial and the circumstances surrounding the confrontations were not suggestive ts to the defendant's identity as a participant in the robbery, and we do not conclude that they were made under conditions of unfairness or unreliability. out-of-co- urt second ground for reversal, the defendant claims that the court unduly lestrictedhim in presenting his testimony concerning his claimed alibi. While it is true that the court did restrict some of the witnesses for the defendant in respect to the fight which occurred at Midvale in which the defendant was involved, it would seem that the basis of the court's rulings were that testimony concerning the defendant's participation in the fight might tend to prejudice the jury against him. The record also indicates that defense counsel was also concerned with the effect evidence of the fight might have upon the jury. An examination of the record indicates that witnesses called by the defendant in fact testified as to his presence at his aunt's home in Salt Lake City at the time of the robbery, and there was also testimony that on the evening in question he engaged in a fight for which he was As a J. Allan Crockett, Chief Justice E. R. Callister, Jr., Justice R. L. Tuckett, Justice arresteci. We find no errors requiring a reversal. The judgment of the court below is affirmed. F. Henri Henriod, Justice WE CONCUR: IN THE SUPREME COURT Oh - THE STATE OF UTAH J. Allan Crockett, Chief Justice ooOoc State of Utah. Plaintiff md Respondent, v- - Jesse Junior Gilpin, No. 11786 E. R. Callister, Justice FILED March 20, 1970 F. Henri Henriod, Justice Defendant and Appellant. L. M. Cummings, Clerk A. II. TUCKETT, Justice: Defendant wa found guilty of the offense of robbery in the District Court of Salt Lake County and has appealed to this court seeking a reversal of that conviction. I Jr., ft Ellett, Justice United States v. Wade, 388 U.S. 218, 18 L. Ed2d Proctor v. State, 223 Md. 394, 164 A. 2d 708. 1. 1 149, 87 S.Ct. 1926; |