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Show FRIDAY, JANUARY 6, 1973 PAGE THREE In the Supreme Court of the State of Utah State of Utah, Plaintiff and Appellant, No. 12940 FILED December 21, 1972 v. Darnell L. Garcia, . Defendant and Respondent. L. M. Cummings, Clerk This is an appeal by the State from an order of the district court arresting judgment and discharging the defendant. The defendant and one Randall Robert Houle were charged with the crime of burglary in the second degree in the city court of Ogden City. The defendant was bound over and held to answer the charge in the district court where he was thereafter tried and found guilty. The codefendant Houle, at the election of the prosecutor, was permitted to plead guilty to the crime of a trespass, a misdemeanor, and he was sentenced to serve a few days in jail. At the time the defendant here was brought before the court for pronouncement of judgment the court arrested judgment and discharged the defendant. It would appear that the court was of the opinion that the defendant and the codefendant Were similarly situated and that the prosecutor, by electing to proceed against the defendant as a felon and in treating the codefendant as amiBdeneanantdenied the defendant equal protection of the laws. It is not a function of the courts to review the exercise of executive discretion, and we cannot say that it was error for the prosecutor to treat the defendants in a different manner, and we cannot review the prosecutor's decision to proceed against one defendant under an information charging him with a felony and reducing the charge against the codefendant to a misdemeanor. However, the trial court in a criminal prosecution is granted wide discretion in dealing with the defendant after he is convicted, and the statutes grant to the trial court wide powers in dealing with a defendant other than pronouncing Z The court may in Tts discretion place a the sentence provided by law. defendant on probation on whatever conditions it deems proper. The action of the court below in arresting judgment was within the court's discretion, and there being no showing of an abuse of that discretion the court's action is not reviewable here. While the State requests this court to reverse the judgment of the court below, and reinstate the judgment of guilty in this case, we are of the opinion that the matter is now moot and it is beyond the power of this court to direct that the case proceed further. is affirmed. The decision of the court below r 1 , j 1 rl! i --- - Jan George Hansen, Defendant and Appellant. TUCKETT. Justice: L. M. Cummings, Clerk The defendant was found guilty in the district court of the crime of burglary in die second degree and sentenced to serve the term provided by die statute. From the verdict and the judgment the defendant is here seeking a reversal. TUCKETT. Justice: ELLK f The defendant was charged with having forcibly entered a market in Salt Lake County, Utah, with the intent to commit larceny therein. The defendant was apprehended in the attic of the building and there was evidence that he had gained entry by making a hole in the roof. There were certain items of merchandise which had been left at the rear door and there were marks on the door which would indicate that an attempt had been made to open it. There was physical evidence that attempts had been made to open desks and cash registers. There was some testimony which would indicate that at the time of .his apprehension the defendant was under the influence of LSD and barbiturates. The court did instruct the jury as to the effect the influence of drugs might have upon the defendant's intent. The defendant claims .here that the court erred in not instructing the jury on an included offense in view of the evidence. The defendant calls our attention to the provisions U. C. A. 1953 as amended, which reads as follows: 6, of Sec. 77-33-- The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense. . . . It is the defendant's contention that the court should have instructed on unU. C. A. 1953 as lawful entry as defined by the provisions of Sec. 76-9-9 amended which provides as follows: . . . Every person who unlawfully enters any building or part of any building, room, warehouse, store, mill, barn, stable outhouse or other building, or any tent, vessel, watercraft, railroad car, automobile, automobile trailer, aeroplane or aircraft with the intent to damage property or to injure a person or annoy the peace and quiet of any occupant therein is guilty of a - ; : Lef v.d of the crime of burglary In the that he was innocent or that ri.s c.itMr. The only reason the court '.m degr t. li'fcrf d no t was there trial i any vrzoi in .xrsd bttt!ug the defendant free was that the gave fo Wresting to a lesser charge.. court had accepted a plea r.f from the gi;y If there is any mi 5i.nTrie of justice, it would seem to be on the and thus allowing part ol the court in ai.cflptin,; a pica iromthe a burglar to escape lrs just desserts - - not n the conviction of the defendant. ant The case ol Cutitk - State, 421 P. 2d 537, 53.4 (Aris. App. 1966), !s in point. H ere, two broiler were equally gu:liy. The appellant in that to the crime charged. Thereafter his brother i nxe entered a plea oi gu?h . w.i-- t jjernviiu-to plead to a inclifi vl ifenKC. 'The defendant then sought his freedom by way o; a writ of habeas corpus claiming that he had been denied equal protection of law. in affirming a denial of the writ by the We are of the opinion that the crime of unlawful entry is not necesIt included within the charge of burglary in the second degree. sarily be must shown should be noted that in burglary of the second degree it that die defendant entered with the intent to commit larceny or.sopxetother felony. While the unlawful entry statute denounces an entry with the intent to damage property to to injure a person or to annoy the peace and quiet of any occupants therein. It would thus appear that the elements of intent specified in the two statutes are dissimilar. We find no error in the c n ett failure to give the instruction requested by the defendant. The judgment of the court below is affirmed. 1. State v. Dodge 18 Utah 2d 63, 415 P. 2d 212. ifs-w-r- . trial rourt, the appellate court faid: New Partnerships ners, Ltd, Foothill Drive, 2363 The appcilam could not complain (!) il the prosecutor failed to prosecute h,s brother, or 2) ii a jury convicted him and acquitted his brother, or (if it itientk-a- i sentences were net imposed on both. Therefore, he cannot ji. cessfuily urge denial of equal protection of the laws ir. his present situation. Section 77.31. 7, I:. C. A. 1953, permits the court to discharge one of two equally guilty parties in order that he may be a witness for the state, and it has never been held that this would cause a denial of equal protection of the U. C. A. 1953, also permits one to be discharged in law. Section under certain circumstances, and when the order to testify for a statute is followed, the discharge is a bar to further prosecution for the 77-31- -8, oflense. It a defendant from a felony would not be a discharge to another thus would appear that a discharge 01 charge prior to llw br:ir.n!ig 01 trial charge nine:. i: If by the ti crl in order to allow the discharged defendant to tesirly. this case there was r.o discharge pursuant to the statute; and if the trial court fed that it was error 10 convii t the one and rot the other, it seen. to me that he should order a prosecution v.i the other instead et discla igirg In the one. 1 2 3 , i- - ir.a; foi.rt arresting judgment ar.d Newman v, United States 382 F, 2d 479. 517 U. C.A. 1953. Sec. State v. Johnson 100 Utah 316, 114 P. 2d 1034. 2363 Foothill Drive. SLC 11575 - Cambridge Investment 115 Roxbury Road Alex G. Cblad and Bessie E. CMad. 1415 Roxbury Road 11576 - Serviaco 1663 Roosevelt Ave Paul Patrick Eagan and Mary M. 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