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Show THE DAILY KECOID PAGE FOUR TUESDAY,' OCTOBER 5, I lMl In The Supreme Court Of The State Of Utah State of Utah, The State o'f Utah, Plaintiff and Respondent, No. 12124 Plaintiff and Appellant, FILED v. David Overson and Ron Jay Shumway, Defendants and Respondents. FILED September 28, 1971 v, 1971 September 28, No. 12092 . Larry Jiron, L. M. Cummings, Clerk Defendant and Appellant. L. M. Cummings, Clerk TUCKETT. Justice: The defendant was found guilty of the crime of burglary and he is here seeking to have that conviction reversed and the case remanded for a CALLISTER, Chief Justice; The State appeals from an order of the trial court granting defendants1 motion to dismiss. Defendants were brought to trial, before a jury, upon an information charging them with .the crime of burglary in the second new On November 18, 1969, a store known as Duncan Electric in Bountiful, Utah, was burglarized and a number of television sets were removed from the building. Following that occurrence some of the television sets which had been taken in the burglary were recovered from the home of Roy Jiron, a brother of the defendant. degree. During the course of the trial, while the prosecution was questioning its second witness, defense counsel asserted an objection to testimony concerning purported admissions of the defendants. The court granted a recess, ibnd counsel argued the matter out of the presence of the jury. ' The prosecutor represented to the court that his only evidence to indicate that defendants had been present at the scene of the burglary, that they had taken the tools (the items alleged stolen in the burglary from a shed on the victim's premises), and that they had had possession of the tools was their admissions to that The case for the State was made chiefly by the testimony of the accomplices who participated in the burglary with the defendant. Defendant claims that there was insufficient corroborating evidence which without the aid of the testimony of accomplices tended to connect him with the commission of the offense charged against him. During the trial, Mrs. Christine Jiron, the wife of the defendant, testified that on November 18, 1969, of Roy and sister-in-la- w work in the afternoon of that day, she observed a from had she returned after number of television sets in her home. Thereafter the defendant called on the phone and during the conversation stated .that he had brought some television sets to the house and that he would remove them that night. This evidence was sufficient without the aid of the testimony of the accomplices to implicate the'' defendant in the commission of the offense. The weight of the evidence was for the jury. . effect. The trial court ruled that on the present state of the record he was .not going to admit statements made to anybody, whether the listener be a policeman or not, of one of the defendants that inculpates the other on the and cross-examiground that it would deny the accused the right to confront 1 witnesses. The court cited Bruton v. United States, wherein it was held-thathe accused's right of secured by the confrontation clause of the Sixth Amendment was violated at his joint trial with a codefendant who did not testify by the admission of the codefendant's confession inculpating the accused. ne t cross-examinati- trial. on . i defendant further claims that the trial court erred in not permitshow that the State's witness, Frederick Leslie Palmer, was the use of drugs on or about the time the crime was committed and recently been discharged from the navy for reasonb of emotional instability. The record reveals that Palmer denied that he was addicted to the use of drugs although he had experimented with their use. The record does not support defendant's contention. that the witness was incompetent to testify. Nor does the record support a conclusion that the witness's powers of observation, his ability to remember, and his ability to state the facts were The competency is ordinarily for the trial court to deterat all impaired. mine. The fact the witness may have been discharged from military service for instability would in no way affect his competency to testify. The to him ting addicted to that he had Thereupon, defense counsel made a motion to dismiss, wLlcu the court granted. The jury was discharged. The State, on appeal, urges that the trial court erred in its ruling that the admissions were inadmissible. It would serve no useful purpose for this court to resolve this issue, which, in fact, would be no more than an 2 This appeal does not fall within any of the provisions of advisory opinion. the highly restrictive statute. Sec. U. C. A. 1953, specifying the which the State may appeal. instances in 77-39- -4, The appeal is dismissed. We find no errors.in the record which would require a reversal of the defendant' s' conviction. The verdict and the judgment of the court below are WE CONCUR: affirmed. Justice R. L. Tuckett, F. Henri Henriod, Justice Ellett, Justice A. H. WE CONCUR: ij. Allan Crockett, Justice : A. H. jeopardy attaches. 3. Also see State v. Callahan, Case No. 12488, Supreme Court bf Utah, 1. Sept. 24, 1971. HiiUner i$7755 - FMA & under age 14 Anderson Financial M. 23394 Bill & - Edward Guy Murder 2nd Degree Mike Wednesday, October 6,1971 23520 - Terisita Marie R. Curtis Pollock Failure to stop at of Police Officer M.K.Davis W. THIRD DISTRICT COURT CRIMINAL R. 23493 CASES Taylor 23558 - Jesse Patrick Byers , command R. BJorkland ! John Hill 23470 - fcete Louis Burg. 2nd Degree M. R. McRae Craig Taylor 23361 2364 - John Travis Morrison Assault of a child - John mo of the city. I R. Van Sc Iyer 23479 - Wayne 22386 Dalton selling a. hallucinogenic drug Hill reset to 1021 CALL 2775349 or 177 L lot So. 467-205- - tferry 6 5214000 0. Hatch G. Adamson 923 - James P Watters, 6734 S 1560 E, SLC; Slsmn, J & M Sis j Inc; Liab $69584.33; Assets $300.; Exempt $150. I 924 - Lana Kay Williams Pollard 4615 S, Holladay Blvd 1, Hlldy; Lab Tech; Olympus Clinic; Liab $4531.52; Assets $2424.51; j Don Brown Failure to provide for minor child $834. Exempt 925 1435 - Kenneth Frank Atkinson, W - WAGE EARNER PLAN - Patricia Gall Hunsaker, 1403 Vine St ' SLC; Cook, Zlons Mtn View Nurs Hm; Liab $6694.44; Assets $50.; ' 918 ; Exempt $30. 4800 S, SLC; Baker, Unem pi; Liab $21855.13; Assets Thomas Guy' - 2nd 927 - Bonnie Jeanne Croseley Whipple, 180 S 2nd St, Tooele; Hswf; Liab $15865.99; Aseets $1356.; Exempt $118.25 t - Harold Kent Peterson, - Kathryn Jana Chindgren Cracroft, 30 Shelley Ave, SLC; Hswf; Liab $12192.87; Assets - David Mark Parklnaon, 3440 S 9th E 91, SLC; Mgr, Solitude Recr & Dev Corp; (lab $4291.27; Assets $747.30; 920 $215.51; Exempt $184. Assets $25732.37; Exempt none. 931 - Charles Henry Fltzlaff, 1532 E 12225 S, Drpr; Cleanup man, Otto Buehner & Co; Liab $10476.18; Assets $4366.25 932 - Toby Sanchez Jr, 3513 S 2nd E, SLC; Laborer, Gibbons & Reed Co; Liab $2800.; Assets $647.; Exempt $647. 933 - Dan Tim Collard, 4615 S Holladay Blvd, 1, Holiday; Unempl; Liab $4531.52; Assets $2000.; Exempt $384. - Douglas Bruce Mayo, 3928 Emerald Green, SLC; Title Exam, Sec Title Co; Liab $8388.63; Aseets $1817.40; Exempt $730. Whipple, 180 St, Tooele; Laborer, Internet Smelting & Ref Co; S 6270 S, Mur; Aeele From; Flood Control; Liab $6899. 40; Assets $30.; Exempt $30. $1232. 257 $3969.92; Exempt $3717.92 - David Rollo Wayment, 423 Church Str, Lytn; Mtrcycle Mech, kSt Sports Ctr; Liab $5451.73; Assets $1367.; Exempt 919 - Sargent Sec Systems Inc, 37th St, Ogd; Sec Guards & Patrol Svc; Liab $73339.43; 930 934 Liab $15865.99; Aeaeta $1356.; Exempt $163.25 No Unlaw, John run at large Jtanknjptcifcb Thursday, October 7, 1971 23267 - Troy Gary Saxton Issuing a check against lnsuff. funds D. White 23460 - Boyd Gary Burbank Unlawful sale of a stim. drug at Mrs. Raymond Cartir Allowing dog to 922 - Edward J Irving, 65 W 700 N, Btfl; Srv Stn Mech, Phillipa Petro Co; Liab $4516.; Assets $502.; Exempt $211.80 926-- Galen Ross Nswty built condominium typo, 2 bod room ositi with enclotod patios and common fsidoo ana, Excellent raturn on inrnt-moor for tan tholtor. Located in S--E - Cruz Bastardy Income Property Investment Hansen 23550 te Prison Rees Morgan Driving under the influence of alcohol Phil John Hill 23571 - Joe Arthur Martinez Escape frem the Sta- Bozalles - Archie - Edward Mitchell Forgery Bobbery Taylor 23597 John O'Connell Tuesday. October 5, 1971 23536 -- Johnnie Lee Gardner John Hill 23570 - Gaylen Lawrence Jonas Unlawfully selling a stimu-- ; lant drug M. Sodomy 23555 ; Robbery Ellett - Joseph Martinez M. ' : A. Coke Exempt $6500. Burg. 2nd Deg.& Gr. Larceny Gil Athay 1355 Sunset Dr, SLC; Antique Bus; Liab $43178.83; Assets $3600.; Boyd Gary Burbank R. Van Sciver 23378 - Joe Lqpez and Taylor - Jaretts Marie Ragin, 921 Unlawfully selling a stimulant drug for minor child Corp Vlahos I&998 - Charles vs - 23464 Failure to provide D.Yoccm - Miner Cal. App. 2d 884, 83 Cal. Rptr. 269; U. S. v. Kearney, v Bankruptcies Friday, October 8, 1971 David Rhode 22105 - GeraldDean Peterson vs Leslie L.Dunccmbjdba Milo Marsden.Jr. & Pete- Mark 2 J. Allan Crockett, Jilstice 1 1 John T. Orton Solver People v. Ortega, Third District Court Criminal Cases ,v K. Van Ellett, Justice 420 F. 2d 170. 2. State v. Spotted Hawk (Mont. ), 55 P. 1026, 1035. Third District Court Calendar - F. Henri Henriod, Justice Chief Justice ' 391 U. S. 123. 20 L.Ed.2d 476, 88S.Ct. 1620 (1968). 2. See State v. Whitman, 93.Utah 557, 559, 74 P. 2d 696 (1937), as to when 1. 192006 Jr., E. R. Callister, 928 370 Qteu upCUunrattR. BogpOttofannt) nnttrildlroiDOHlD OxtrihanKpadb (ill 5JIIU7 IHK E SLCo a 929 Exempt $349. GUSftlfiRfStk fgfgfaya h"S()U II'I.TMIUIH SIA1 I I 1 |