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Show MONDAY, SEPTEMBER 23, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE FIFTKEN In The Supreme Court of The State of Utah Cleo Perea, Plaintiff and Appellant, tion and Parole at which time It appears that the plaintiff was served with notice of his violation of the terms of Ms parole. It 1s the plaintiff's contention that at that time he was hot Informed as to his rights to have counsel represent him, but the record shows that at that time he waived a No. 13667 v. FILED September 17, 1974 Samuel Smith, Warden, Utah State Prison, Defendant and Respondent. The plaintiff his petition for a Allan E. Mecham, Clerk appeals from a judgment of the writ of habeas corpus. district court denying Plaintiff was paroled from the Utah State Prison on March 13, 1973. or about October 1, 1973, complaint was made to the Board of Pardons by the Department of Adult Probation and Parole and a warrant of arrest was Issued by the Board for the arrest of the plaintiff.. Plaintiff was Incarcerated 1n the Salt Lake County Jail for a period of approximately one month. The plaintiff was approached by an agent of the Department of Adult Proba The court below found and concluded that the plaintiff had not been denied his constitutional rights in the proceeding which resulted In his recommitment to prison. After a careful consideration of the record, we must conclude that the plaintiff was accorded the rights specified by the United States Supreme Court 1n the cases of Morrlssey v. Brewerl and Gagnon v. ScarpelH.2 On The State of Utah, Plaintiff and Appellant, v. The judgment 1. 408 U.S. 2. 411 471, U.S. 778, 33 36 of the court below 1s affirmed. ' L.Ed. 2d 484, 92 S. Ct. 2593. L.Ed. 2d 656, 93 S. Ct. 1756. legislature perhaps did not understand the "Rube Goldberg" system of crimes set forth in that chapter, and we ourselves have trouble in follow- -' ing it. Rather, the criticism, if any there is, should be directed against those who proposed the chapter and lobbied it through the legislature. It " No. 13579 FILED September 17, 1974 Vincent Joseph Archuletta, Defendant and Respondent. . prerevocatlon hearing and that a hearing was had before the Board of Pardons on November 21, 1973, at which time the plaintiff was represented by an At time of the the before the Board of Pardons the plaiattorney. hearing ntiff admitted violation of the terms of his parole, and he was thereafter returned to prison. Justice: TUCKETT, a Allan E. Mecham, Clerk ELLETT, Justice; ' " '. seems that the authors either had little experience in the field of criminal law practice or else were fatally bent on mischief to the utter consterna- tion of trial judSes and prosecuting attorneys. Not only did the legislature repeal all of the prior criminal code, it went further and abolished all common law crimes. Therefore, at the ' 1. Sec. U.C.A. 1953. 2. Some thirty amendments were made by Chapter 32, Laws of Utah 1974 Budget Session), in an attempt to alleviate the mischief, including sections involved in this matter. 3. Sec. U.C.A. 1953, as amended; Chapter 196. Laws of Utah 1973. time of the alleged offense there was no crime of aggravated assault unless it was clearly set forth in Chapter 196, Laws of Utah 1973. 4 ' 77-39-4- (t), The defendant was charged by an information with a second-degrfelony, to wit, aggravated assault. His motion to quash was by the trial court granted "without prejudice for a new filing" on a charge of assault, and the State has appealed. ee The information charged: 76-1-1- The statute does not set forth the crime of aggravated assault. at all. Even though the rule of strict construction of a criminal statute is not .the law in Utah, 3 the re is nothing to construe where there is no ambiguity in the' . Aggravated Assault By A Prisoner, in violation of Title 76, Chapter 5, Section 103(2) (a), (Felony of th? . ' Second Degree), Utah Code Annotated, 1953, as amended, as follows, to -- wit: statute. In the case of U. S. v. Wiltberger killed a seaman aboard ship in a That on or about the 4th day of December, 1973, in Salt Lake County, State of Utah, the said Vincent Joseph Archuletta, a prisoner confined in the Utah State Prison, assaulted J. Paul Giles with a deadly weapon, to wit: a knife. Section 76-5-1- de The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviouslyusedthem, .would comprehend. The JntentiotL of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. . . . . . . . 01. referred to reads: 01 a captain of a merchant vessel river in China, The statute was under which he charged prohibited manslaughter on the high seas. In holding that the court had no jurisdiction to try the case, the court said: half-mile-wi- The section under which the defendant was charged was enacted by U.C.A. 1953, as Chapter 196, Laws of Utah 1973 (Sec. amended), and so far as material reads: "(1) A person commits aggravated . ." assault if he commits assault as defined in section 76-5-1- 05, , There is nothing ambiguous about the statute in the instant matter; it not state a crime, and we are not empowered to state one for the does simply legislators simply because it seems certain that they intended to state one themselves. For purposes of this part "prisoner" means any person who is in custody of a peace officer pursuant to a lawful arrest or who is confined in a jail or other penal institution regardless of whether the confinement is legal. This is an obvious 'statutory error. The legislature undoubtedly meant to have Sec. read, "A person commits. aggravated defined in section as if etc. assault he commits assault The judgment of the trial court is affirmed. (1) 76-5-10- 2," Now, the legislature is not to be censured for enacting Chapter 196, Laws of Utah 1973, wherein all of our criminal laws as set forth in Title 76, U.C.A. 1953, and as amended, were repealed. The m(mii ' 4. 22 C.J. S. , Criminal 5. Sec. 76-1-1- 17. 1 of-Uta- 1973; State v. Ledkins, 6. 5 Wheat 76, 95 (1820). have known in the exercise of reasonable diligence that a violation would take place in the use of the conveyance. The State of Utah Plaintiff and Appellant, No. 13495 v. Law, Sec U.C.A. 1953, as amended; Chapter 196, Laws 5 Utah 2d 422, 303 P. 2d 1099 (1956). 06, The section, as applied to this case leads to an unusually harsh an additional fine or penalty in connection with a misdeconstitutes result, of meanor that possession of marijuana. It is conceded that basis of is that one ounce of marijuana was being carried by Price, who was a university student in Lawrence, Kansas. But it is undisputed that his sole purpose for being in Utah was to visit the Arches National Monument, -not to transport a controlled substance. It appears that the thrust of the section mentioned above is to deter the transportation of a controlled substance from one place to another and has nothing to do with a situation where the controlled substance, - one ounce of marijuana in this case, - simply in a car but possessed by a person incident to a vacation and only incident and collateral to transportation and obviously for personal consumption, is involved. It seems unthinkable that one would package up an ounce of marijuana for the primary purpose of transporting it five hundred to a thousarid miles for sale, receipt, possession or concealment. I. the-charg- One (1) Porsche I. D. No. 911211026, Title No. PP10026F bearing Kansas License Plate No. JOR 1652, Defendant and Respondent HENRIOD, FILED September 18, 1974 Allan E. Mecham, Clerk Justice: Price, owner of a Porsche automobile, valued at $10,000, was and arrested for speeding, possession of a controlled substance and stopped driving while under the influence of alcohol. He was charged with possession. There is nothing in the record to indicate what disposition was made of that One This whole case leads to an unconscionable forfeiture, and that the trial was correct in concluding that the enormity of the forfeiture hardly could court was the before and the arrest after charge apparently Nonetheless, fit the $299 misdemeanor. forfeiture. for to the State over was turned car the filed, That forfeitures are frowned upon needs citation of but few authorities since the cases supporting such an elementary principle are legion. In Moran The section of the statute under which this forfeiture was accomplished, 1 our court had this to say as to forfeitures: v. Knights of Columbus, or is invalid either Annotated Code 1953,. Utah inapplicable Title under the facts of this case for the following reasons: It matters not . . . whether the action is one in equity or one at law; the rules of equity . . . must prevail. The section mentioned reads as follows: charge. (e) All conveyances including aircraft, vehicles or vessels used or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession, or concealment of property described in (l)(a) or (l)(b) of this section, except that: (iii) Any forfeiture of a conveyance subject to a bona fide security interest shall be subject to the interest of the secured party upon the party's showing he could not It is no answer for appellant to urge that the court's interpretation of the statute was erroneous, - if the decision of the court is supported by good and sufficient reason or reasons. 3 II. The statute must be examined in the light of its purpose intent of the legislature. andor In State Land Board v. State Department of Fish and Game,4 we said: . . . with respect to the meaning of statutes, it is ap- - |