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Show MONDAY, 1NTERM0UNTAIN COMMERCIAL RECORD PAttF RIGHT No. 13035 Plaintiff and Respondent, Redevelopment Agency of Salt Lake City, Plaintiff and Appellant, FILED May 31, 1974 v. Thomas E. Duran. Defendant and .Appellant. May 31, 1974 , a Allan E. Mecham, Clerk Defendant and Respondent. 76-7-1- CROCKETT, Justice: Every convict in the state prison, who, with malice aforethought, commits an assault upon any other convict, or upon the Warden or any guard or upon any other person whomsoever, with a deadly weapon or instrument of any kind, or by means of force, or by administering any poisonous or deleterious substance which will likely produce great bodily injury shall be punishable with imprisonment for life or death. 1 from a Plaintiff Redevelopment Agency of Salt Lake City, appeals of , Inc. $220, 875 Investment jury verdict and judgment in favor of Mitsui corner of Second South and West for some business property on the northeast of an Urban Renewal Program. Temple Street, taken by condemnation as part on evidence; and contends that there is errors in The agency assigns rulings insufficient competent evidence to support such an excessive verdict. He was convicted of the included offense of assault by a convict with a deadly weapon, without malice aforethought. He claims error was committed at trial Pursuant to resolution, the Agency filed its co.npJaint in February 1972 seeking condemnation of the property referred to, vl,ich consisted of 1 Defendant Mitsui (a two older buildings on 1 , 625 square feet of land. Tsutomu and Mrs. Mitsui) family corporation whose stock is held by Mr., and its to cjniemn rejecting answered challenging the plaintiff's authority into a entered the parties offer of $156, 165 as compensation. Thereafter March as i 1, 1972, stipulation that the Agency could occupy the premises 76 of value the 123.75 court but that it would pay into $117, (reprpentirc' in as relocation Mitsui of the land as computed by the Agency)3 and assist authorized by the Uniform Relocation Assistance and Real Property Policies 1 as follows: At the trial of the present case, wherein the defendant did not evidence was erroneously admitted which showed that the defendant testify, had committed a prior felony of the same type for which he was presently 1. trial. The court erroneously allowed two of the defense witnesses to be questioned about prior convictions which in one instance had been overturned and 'in the other instance was a misdemeanor. 2. .illDefendant offered to stipulate that he was an inmate serving time in Act of 1970. 4 in January 1973, eleven months after the taking, the only issue contested was that of value. As an adjunct thereto the parties At the the state prison. The prosecutor refused the offer, as he had a right to do. A defendant cannot prevent the State from proving the elements of a crime rental income ... theintonetconsideration stream to this building, after taking the gross rent from ... all of the various aspects ... the of A8 We do not think it was error to place in evidence the commitment paperi under which this defendant was held at the. time of the alleged crime. The State had to prove as an element of the offense charged that the defendant was an inmate in the state prison, and we are unable to see how better the prosecutor could prove this than by the official records. The objection of the defendant to the commitment papers was properly overruled. witness also made reference to the offense but added nothing to the facts shown in the commitment papers. Besides, the reference was innocently made. The question propounded to the witness related to the victim (Mr. Gallegos), not the defendant. The following questions were asked and the following answers given: A Q Do you have Mr. Gallegos1 records with you, commitment with you, records with you, Mr. Johnson? A I Yes, do. from those records, does it indicate that Mr. is also an inmate at the Utah State Prison? Gallegos Q And A Yes. 73 Am. Jur. 2d, Stipulations, 17; Arrington v. State. 233 So. 2d 634 (Fla. ); People v. Speck. 242 N. E. 2d 208 (111. 1968). Q And when was he committed to the Utah State Prison, this commitment he is presently serving? 1. A We received the commitment, it was issued January 19, 1967. Q What A offense? The offense of assaulting a fellow convict. Q Now, I A cords. Oh, trial, orally stipulated that: by stipulating thereto. am talking about Mr. Gallegos now. Gallegos. I have a card am sorry, sir. I didn't bring his here with the information. 1 re- The questions and answers above quoted do not refer to the name of the defendant at all. The appellant also assigns error because two of his witnesses were asked if they had ever been convicted of a felony. 2 Each of the witnesses was a prison inmate. - One answered that he had been convicted of two felonies and gave the dates and type of crime. The prosecutor asked, "How about 1959, burglary and grand larceny?" The witness stated that he had been acquitted of those crimes. The second witness answered that he had been convicted of two felonies, to wit, breaking and entering and burglary, and gave dates. The prosecutor then asked, "What about 1967?" The witness said, "No." The prosecutor then asked if the witness had ever been convicted of manslaughter a felony. The witness answered, "Yes, involuntary manslaughter." The witness need not have answered as he did, since involuntary manslaughter is only a misdemeanor and a witness need only answer as to convictions of felony. The defendant had called a great number of witnesses, all inmates of the prison. The prosecutor had a fingerprint record of the witness in question, which showed a conviction of manslaughter with no indication that it was a misdemeanor type crime. The trial court was of the opinion that the matter was not prejudicial to the defendant and denied a motion for a mistrial. We think he was correct in his ruling. victed. FILED Mitsui Investment Inc. corporation, The appellant, as defendant below, was charged with the crime set out 2, U. C. A. 1953 (as amended in 1957), which reads: on No. 13270 v. Allan E. Mecham, Clerk EL LETT, Justice: in Section State Off Utah In The Supreme Court Of The State of Utah, JUNE 10, 1974 It appears to us that the defendant had a fair trial and was properly The judgment and sentence should be and they are-affirmed- . m m m WE CONCUR: E. R. Callister, Jr. , Chief Justice F. Heiri Henriod, Justice J. Allan Crockett, Justice R. L. Tuckett, 2. This was a proper question. 78-24- -9. the property . . . less following: utilities, management . . . vacancy reserve and maintenance and upkeep expenses, would produce a net income to this property . . . between eight and eleven thousand dollars per year for two or three years after the date of condemnation. U.C. A. 1953 (as amended 197U allows the legislative body of a community to designate itself as the Redevelopment Agency of that community. Here, the Salt Lake City Commission empowered two of its members to act as the Agency. 2. The Agency obtained the power of eminent domain under the Neighborhood U.C. A. 1953 (as amended 197 purposed Development A ct, Sec. to cooperate with and share in funding of the Federal Department of Housing and Urban Development. 3. Sec. U.C. A. 1953, provides. . . If the motion is granted, the court ... . shall . . . order . , . the plaintiff as a condition precedent to occupancy to file with the clerk of court . . . 75 of the condemning authority's appraised valuation . . . which on application of the parties in interest, . . . may be ordered paid over forthwith. See Jelco, Inc. v. Third District Court, et al. , 29 Utah 2d 472, 511 P. 2d 739. 4601 4. 42U.S.C. of Jan. 2, 1971, 84 etjseg. (1972), Pub. L. 1. Sec. 11-19- -3, 78-34- -9, 91-6- 46 Stat. 1894. The disparity between the valuation of the property by the witnesses is: The two experts for the Agency appraised the property at $156. 125, and $156. 165 respectively; and as the "Value contribution of buildings." each listed "None." Whereas, the two experts for Mitsui placed a total value of $242,784 and $246. 764 respectively; and as to the "Value contribution of buildings," one listed $16,096.96 and the other $14,264. The plaintiff makes the contention that the old buildings on the proof no were value and that whatsoever; perty they should not have been so included in Mitsui's appraisals. It made a proffer of proof that after taking possession, the buildings had been razed and the land converted to a parking lot, which resulted in a higher income than was being realized from the buildings. The court sustained the objection on the ground that these things which occurred after the taking were irrelevant as to the value on the date of the taking. Pertinent to this problem is Section 78-34-- 11, U. C. A. .1953. U. C. A. 1953: No improvements put upon the property subsequent to the date of service of summons shall be included ir. the assessment of compensation or damages. The purpose of this is. of course, to forestall the possibility of making improvements on the property after notice of condemnation in order to enhance damages. The trial court's ruling was consistent with that purpose and with the general rule: That the value of condemned property is to be determined as of the date and under the circumstances existing at the time of the taking;5 and that ordinarily evidence of subsequent occurrences is not admissible as bearing thereon. By way of confession and avoidance cf the foregoing rule, the Agency argues that the matter of subsequent use and income from the plaintiff property was introduced into the case by the oral stipulation quoted above; and was also brought out in the testimony of Mitsui's own witnesses. Wherefore it contends that it should have been permitted to introduce evidence on that matter. A pertinent observation to be made is: that the Agency having stipulated as to what the income wou d be for the next "two or three after the date of condemnation." it should not feel too badly abused to letyears that be regarded a. the fact, and not be heard to renege on it. agreement. In regard to the subject te8timny: tt Wa fir8t Produced ? -- examina- tion i L?!. expert. by cross i The Agency also complain, of frailties i the testimony of Mitsui's expert, because they admitted that in making their ake Into "count the fact that the building, added no valueTo they did not the property since it would produce a greater income by their removal that the Agency .tr th. point that the lot than th. hulldin,.; and that it con.id.r.d it parking Justice See Sec. con- of February, 1972, di.cr.ditin, o7 MrlhaL.. Z!tSSL" Continued on page 9 |