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Show FOUR PAGE In The Supreme Court Of The State Of Utah The State of Utah, v. Jr., Defendant and Appellant. The defendant was convicted by a jury verdict of the crime of assault with intent to commit murder, and he appeals therefrom. He claims the court erred in failing to direct the jury to find him not guilty. L. M. Cummings, Clerk way patrolman named Warren, who parked his car immediately behind the stolen car. At about the same time a city police officer stopped his car immediately in front of defendant's car. The patrolman got out of his car, and as he approached the defendant's car, the companion handed the defendant a cocked single action . 22 caliber pistol. The defendant opened the door and turned toward the patrolman, and at that time somebody fired two shots,, and the patrolman fell to the ground with two bullet holes in his forehead. Neither of the two officers had drawn a gun, and we think the jury was correct in deciding that it was the defendant who shot the trooper. person in the building. The officer attempted to apprehend the person in the building, but he escaped. Upon returning to the automobile the officer found the defendant behind the steering wheel with the motor running. Within the vehicle were found several business machines which were identified as property belonging to Monroe International Company. One of the machines was found on the front seat and another on the floor forward of the front seat. After another police officer had arrived at the scene a search of the automobile revealed a number of tools in the glove compartment of the automobile, one of which was a screwdriver-wita segment broken from the blade. A segment of metal was found near the doorway to the establishment which fitted into the space of the blade of the broken screwdriver. There were marks on the door and the door frame which would Indicate that entrance to the building had been gained by prying the door apart from the frame and releasing the bolt. The defendant testified in his own behalf to the effect that on the evening prior to the date of the alleged crime he had gone to a tavern where he met Neil Warath, the codefendant. During the evening the defendant and Warath consumed a considerable amount of beer and whiskey and about midnight the defendant became ill and asked Warath to take him home. They left the tavern in Warath's automobile and the defendant testified that he fell asleep and was unaware of any unusual occurrence until he heard two shots fired by the officer in an attempt to apprehend the man fleeing from the building occupied by Monroe International Company. The defendant also testified that he and Warath had not discussed committing the crimes nor was he aware of the fact that Warath had 'removed the business machines from the building. . The defendant's chief claim of error before this court is that the evidence is insufficient to show his guilt beyond a reasonable doubt. In this the defendant contends that at most the evidence shows his presence at the scene of the crime but fails to show his participation in the alleged criminal acts. The police officers who observed the defendant at the scene of the crimes testified that in their opinions the defendant was not so intoxicated as to be unaware of what was going on around him. The members of the jury were under no obligation to accept the defendant's testimony as true and the facts as recited above are sufficient to support the verdict of the jury that the defendant was guilty of burglary and grand larceny as charged in the information. con-nscti- on, The defendant further contends that the instructions of the court were erroneous in certain particulars. The court instructed the jury in effect that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense,, or aid and abet in its commission, are principals in any crime so committed. The defendant urges that this instruction would only tend to confuse the jury inasmuch as there was no evidence of record to indicate that he aided or abetted in the commission of the offenses or that he advised or encouraged their commission. The language of the instruction followed closely the intent and meaning of the statute defining principals add accessories and we perceive no error in giving the instruction in question. careful review of the entire record discloses no errors which would a require reversal by this court. The verdict and judgment of the court below A are affirmed. WE CONCUR: E. R. Callister, Chief He and his companion were stopped in a stolen automobile by a high- -- During the early morning hours of October 4, 1968, a police officer was dispatched to a building occupied by Monroe International Company in. Salt Lake City. . Upon arrival the officer observed a Buick automobile parked in front of the establishment occupied by one person, and he also observed a J. Allan Crockett, 17 M.'CummlBii; Clerk FILED. September The defendant was convicted of the crimes of burglary in the second degree and grand larceny in the court below and he is here seeking a reversal. . 1970 ELLETT, Justice: TUCKETT, Justice; . September 25, Defendant and Appellant. 25, 1970 James B. Angelos, T John Charles Wilks, No. 11712 Plaintiff and Respondent, . TUESDAY, SEPTEMBER 29, 1970 THE DAILY RECORD. Justice The defendant also contends that it was error to permit the trooper to be brought into court in the presence of the jury. At that time the trooper was unable to walk and was brought into the court in a wheelchair. The doctor who had operated on the trooper stated that the victim would not be able to remember anything which occurred at the time of the shooting, and the victim was not presented as a witness in the matter but only for the purpose of permitting the doctor to point out the situs of the two bullet holes in his forehead. We do not see any error in this procedure. The defendant had pleaded not guilty, and it was necessary for the State to prove all elements of the crime beyond a reasonable doubt. The defendant testified that he never fired the pistol; that if it was discharged, it was accidental. The accuracy of marksmanship would be very material in a case like this. While the doctor iad stated that the two wounds'were only three-fourtof an inch apart, that hs testimony might be discounted by the jury, since the operation was performed about a year prior to trial. By having the scars exhibited to the jury, the testimony given would be corroborated and the jury could see for themselves the accuracy of the shooting. to do. The defendant is not entitled to limit the State's case as he now tries The prosecution could prove the matter by oral testimony and also by exhibiting the scars to the jury. The fact that the victim was in a wheelchair was due to the defendant's own acts and was not staged by the prosecution for the purpose of prejudicing the jury. There was no error in permitting the doctor to show the scars resulting from the bullets which were fired into the victim's forehead. Complaint is also made because the doctor was permitted to say that opinion the bullets which entered the victim's head could not be larger than-- 32 caliber. Those bullets have not been removed from the victim's brain. However, the doctor stated that the holes in the skull were each about one quarter of an inch in diameter and that they could not have been made by . 357 caliber Magnum bullets. (Both officers had the latter type pistols.) The doctor said he was acquainted with the various types of calibered pistols in his . and that he had treated many cases of gunshot wounds. The trial court initially has a discretion as to the allowance or rejection of evidence, and unless he abuses that discretion, he ought not be reversed. There was no error in permitting the doctor to testify as he did. Complaint is also made because the defendant's proposed instructions not were given as requested. One proposed instruction told the jury that before they could find the defendant guilty, they must be convinced from the evidence and beyond a reasonable doubt that the elements of the crime (set out) had been established. The proposed instruction then stated that if the defendant accidentally or unintentionally fired or discharged the revolver without the specific intent either to assault or to kill the victim, he should be acquitted. It is obvious that there could be no finding of the elements of the crime if the negatives existed. By refusing to give the reverse negative instruction as requested, the court did not prejudice the defendant in any manner. Defendant's counsel could present his theory of the case to the jury and could argue the accidental discharge and lack of intent to kill under the instructions which were actually given. If the jury had found either to be the fact, the defendant under the instructions would have been acquitted. When instructions are given which clearly and positively state what must be proved before a conviction can be had and the jury told that they must acquit unless each and every element is established by the evidence and beyond a reasonable doubt, it is not necessary to give another instruction in negative form. If, for instance, the jury believed beyond a reasonable doubt that the defendant intentionally fired the shots, why should the court tell them then to consider whether the pistol was accidentally discharged and to acquit if such was the case? The jury had already been told to acquit unless they found the shots were intentionally Jr.. Justice F. Henri Hennod, Justice fired. error in the record. The defendant had a fair trial before an was convicted on evidence which amply supported the verdict and impartial jury rendered. The verdict is affirmed. We find no A. H. Ellett, Justice WE CONCUR: J. Allan Crockett, Chief Justice Section 1. 76-1-- 44, U.C.A. 1953; State v. Ervin, 22 Utah 2d 216, 45iP.2d 372. E. R. Callister, Jr., Justice In The Supreme Court Of The State Of Utah ' I f R. L. Tuckett, Justice , State of Utah. Plaintiff and Respondent, No. 12091 FILED F. Henri Henriod, Justice ( |