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Show THE SALT LAKE TIMES FRIDAY, APRIL 9, 1976 Anti-shoplifti- ng Campaign Reduces Thefts For 1975 Utah Supreme Court Opinion IX THE SUPREME Maunn y. - Elg. Plaintiff and Appallanl, No. 14169 FILED Boyd F. Fiisgarald and Vallry Viaw Riding Slablaa, Defendants and Raipnndcnia. HENRIOD. On appeal. Mn. Elg urges that the court erred 1) in not deciding thia case under the dortrina of res ipea loquitur and 2) in railing to find aimultan-eouelthat plaintiff made a prima lane case and to require a shift in the burden Df proof to defendants. COURT OF THE STATE OF UTAH . JUVENILE SHOPLIFTING Page Three March I. 1976 Allan E. Macham, Clark Chief Justice: Appeal from a no raua uf action judgmant of the court, anting without a jury, in an action where Mra. Fig wae injured alter ehe (ell from a wagon while on a chartered hayride, incident to a iocial and danca event aponaored by the Eaglre, a local fraternal organiiatioa. Affirmed with roata to drfendanla. The complaint aaid that defendanta "negligently allowed approximately 29 people to board a hay wagon whirh waa unaafe and in poor condition and thereafter negligently drove laid hay wagon in euch a manner an to cauaa almoat all of tha people on eaid wagon to be thrown off the wagon to the ground." Nowhere in the complaint nr other pleadings wae rea Ipea loquitur pleaded or mentioned. The only junrlure at which it wae adverted to waa in the argument to the court and at one puint only, where, unleee an error has been made in recording, plaintiff a own rouneel, not defendant'!, stated tha dortrina did not apply. In the brirfgouneel said the trial court asserted that the doctrine did not apply in Utah, whirh statement is not in the record, and which we cannot take into account for several cogent reasons, that it ia not supported by any document, defendants deny that aurh a statement waa made, and anyway, we cannot consider it sinre it la a matter dehors the record. A fourth reason is as cogent, - that the farts would not adjust thamsalvaa to an application of the rule, since there waa a full the opportunity to facts, presumably with an opportunity to examine the vehicle, develop availability of 29 or 10 witnesses, including possibly experts, which were not producad. Also, there was the testimony of the parlies on both sides. The plaintiff pleaded only negligence, made no offer or to amend hrr pleading!, did not ask for a continuance, did not move for a request new trial, nor for the amendment of the findings, ronclusiona or judgmant. This appears to be a plain case where negligence ia averred, and where, after a plenary trial, the trial court, on b elievable facta, waa wont to believe those that we agree supported the decision, justifying the conclusion that tha plaintiff, whose duty It wae to prove a rase, failed to sustain such burden. After all the evidence wae in, the trial court, in writing, found that the plaintiff failed to allow I) that defendant! knew or ahould have known that the hay wagon waa unaafa, or 2) were negligent in the operation of tha wagon or 1) that they were negligent in any manner. 1972 Utah Council of Retails and Wholesalers and the Utah Retail Merchants Association were congratulated by Deputy Attorney General Robert B. Hansen, for their efforts in reducing shoplifting during 1975. At the end of the current antishoplifting campaign that was funded by the merchants with the assistance of a government grant, Hansen stated: And I think the participating organizations deserve the congratulations of the public for the terrific job they have done. Mark Darney, president of the Utah Council of Retailers and Wholesalers, and Morris Smith, president of the Utah Retail Merchants Association, were singled out. Few people know of the tremendous amount of time these men have donated to make the campaign the success it has been, Hansen said. The decline, was about 16.5 percent for the year. In 1974 there were 3,127 cases refered to juvenile authorities; in 1975 that figure dropped to 2,612. The publicity campaign got a major shot in the arm when the media throughout the state agreed to run information as a public service. Contributions from radio and television stations, newspapers and transit companies have amounted to approximately $70,000 for the year. This enabled us to make a more conventrated effort in the educational campaign in the schools and to do many important things that we would not have been able to do otherwise. One of the most effective antishoplifting projects undertaken was a series of school assemblies held in most Utah communities with local law enforcement officials conductanti-shoplifti- ng anti-shoplifti- ng ing. Some 94,000 students attended these assemblies, Hansen said. For many of them, it was the first time they had been told that shoplifting is stealing. The antishoplifting campaign has been so successful, that merchants organizations have already indicated a willingness to fund the program for another year. Government funds are also being sought - again to complement merchants' contributions. A decision is expected later this month on government funding, according to Hansen. Hansen became involved with the effort last year wen he worked with the State Legislature to gain passage of the Law. 1975 Utah Since that time he has been active as a member of the Utah Committee for composed of members of the business community and the Attorney General's anti-shoplifti- Anti-Shoplifti- Anti-Shopliftin- g, Office. For the future," Hansen said, we will continue to try to keep shoplifting levels down, not only 1973 1974 1975 because it is stealing, but because it is often the first step toward other crimes that ruin lives. We will also expand our efforts to gain between better understanding and merchants. courts, prosecutors We hope in this way to achieve faster, more equitble action in both criminal and civil actions against this expensive crime. Under Utah law shoplifting is stealing. Criminal penalties could mean several months in jail, several hundred dollars in fines, or both. In addition, merchants are entitled to sue shoplifters for the cost of the stolen merchandise, plus court costs, attorneys fees and punitive damages. The law also places the responsibility on parents to teach their children that shoplifting is a crime and to put forth a diligent effort to prevent their participation in such activity. Centennial News Tells 200 Years When a newspaper of a century ago begins publication at the Bicentennial display in the Smithsonian Institution here May 10, it will be printed on recycled paper to symol-iz- e necessary future priorities for all Americans. Production of the Centennial News on an authentic press of the 1870s will be a highlight of the Smithsonian's Bicentennial observance. The Smithsonian exhibit will be a recreation of the 1876 Centennial Exhibition in Philadelphia in observance of the nations 100th birthday. Paper for the antique newspaper press, which will operate daily, has been donated by the Garden State Paper Company, Inc., a subsidiary of Media General, Inc., and the world's largest maker of fresh newsprint recycled completely from old newspapers. The press itself was put back into working order for the Smithsonian by The Washington Post. Designed for steam operation, it will be powered by compressed air at the display in the Smithsonian's Arts and Industries Building on the Mall here. Although now a curiosity in this day of high speed rotary newspaper presses, the old Potter Press was a technological marvel a century ago. Each printing impression requires hand feeding of a sheet of newsprint by the press operator. In 1876 newspaper publication and the printing industry generally were undergoing terrific growth because of the then-necapability of making newsprint from trees. Nobody then could have guessed that in 100 more years, the demands of a crowded world would make recycling of paper and all other basic materials a growing necessity, commented Joseph T. McColgan, president of Garden State Paper. w On evidence in coneidarable part contradictory, that which, having been properly admitted, aupported the trial court'a determination compelling ua to affirm under well known rulee aa to review on appeal, may be briefed aa followa: One night about 1:00 p. m. , about 29 or 10 people, who ware Eaglea, and their gueeta, had gathered about a campfire for eome time before the echcduled hayride. Moat had been drinking, - eome not, according to tha Eagle who promoted the outing and who wae plaint iff e own witneea, Ha described one aa being "hombed out.." Also that there was soma horseplay, laughing, joking, and that the one who waa bombed out wae helped onto tha wagon a couple of timei but "kept wanting to get off. " WE CONCUR: A. H. Ellen, Justice TUCKETT, to the Justice: (Concurring! I concur. I believe the doctrine of rea would apply ipsa loquitur facts in this case if the iasue had been timely raised. properly Maughan, The wagon waa a rubber-eireflatbed, which was about four feel from the ground, covered with hay and circled with a 1 I pine poll attached to 4 p 4 uprights, againat which riders placed their backe, with back to back passengera seated in the middle, - where Mra. Elg sat. This wagon had been used for a aimilar purpose with a similar number of paeaengere more or leu, on about 30 occaiions, and a group of 10 paaaangera waa attested to as not being an overload. The driver said ha felt the wagon was aafe, that he chicked it before darling the trip, that tha railings were all up, the horaea hooked up right, the tuga were right and it had an even pull. At tha beginning of the trip there waa an entertainer guitar player. Handing up, back of tha driver's seal, described by one witneea as being "a little bit lubricated" and Who couldn't stand up very well, and who had fallen off the wagon while trying to get on. Thia person fell off first, but it waa not daar whether hia fall or somclhing'elsa cauaad the pole to break, which in fact it did, and a lot of tha rest of the passengers, including plaintiff, also fell off after the pole broke. The horaea were pulling the wagon in a walk. The wagon, approaching downhill to the road about 0 feet fnm the gathering area, tilted for some unknown reason, when the pole broke aa tha wagon turned onto tha traveled road, whether because of a rock, a bunp or tha activity of the guitarist, or otherwise. The driver said it was not unuaual for tha passengers to lean againat the rail whan tha wagon hit a bump, and lie did not know why the railing broke. J. Allan Crockett, Justice Justice, concurs in the result. -- 250-10- No. 14169 ! t If t drfrndant fails to file- and serve a copy of nutici- - as yrquirrd in aubsrclion (I), the court may offrred by the defendant fur the purpose exclude evidi-nc- r uf proving an alibi, except the testimony of the defendant himself If the prosecuting attorney fails to file and serve a ropy ur. the defendant of a list uf witnesses as in subsection (I), the court may exclude evidoiicr offered by the state in rebuttal tu the defendant's alibi !N THE SUPREME COURT OF THE STATE OF UTAH -- The State of Utah, Plaintiff and Respondent. 14256 FILED March 4, Lonnie David Case, Defendant and Appellant. tha- - ooOoo- No. -- 2- 1976 evider.ee 4j For good cause shown the court may waive the requirements uf this section. Allan E. Mecham, Clark TUCKETT. Justice: It should be noted that the statute empowers the ments of this section fur guod cause shown. court to waive the require- The defendant was charged in the Diatrict Court of Salt Lake County The prosrijetiun recallrd Mrs. Barker who had testified on the main U. C. A. with the crime of aggravated robbery in violation of Section 1951 as amended. A trial was had and the jury returned the verdict of guilty. case of the prosecution and one Craig Christensen who had been subpoenaed Mrs. Barker by the dvfenaant who was in court but was not called by the defense Pursuant to the verdict the court sentenced the defendant to serve a term ia testified that Some days aftrr the robbery Craig Christensen was in the store the Utah State Priaon. The defendant ia here seeking a reversal. and told hrr he knew the person who had committed the robbery. She further teenfivd that Craig Christenarn further Mated that he had been with the defendant The state's evidence showed that on April 10, 1975, the defendant un the night ol the rubbery and that Case had tried to gel him to go with him but store at 4690 South Redwood Road in Salt Lake County. entered the hr had not done so On Christensen denied having the converthe waa on the of and at time store wae the an Barker duty employee Myrna sation with Mrs. Barker and further denied making the statements attributed defendant entered. Tha defendant purchased a package of corn chips which to him. he ate while he walked around the etore. Mrs. Barker testified that the defendant came up behind her, put a knife in her back, and demanded the money While we are of the opinion that the defense and the prosecution ahould from the till. After Mrs. Barker opened the till she testified that the defendmeet the requirements of the statute with meticulous care, nevertheless in ant took all of the currency which amounted to approximately $120 and left this matter defendant knew that Mrs. Barker would become a witness against the store. Mrs. Barker further testified that the offense occurred between the defendant and her testimony respecting the conversation with Christensen 10 p. m. and 10:30 p. m. The defendant claimed that he was at a birthday would have been known to the defendant had it been inquired into. Craig Christensen party during the time he was alleged to have committed the crime. Prior having been subpoenaed by the defendant was undoubtedly interviewed by tha deto trial the defendant had given the prosecuting attorney notice in writing of fendant or his counsel and we must aseume that the defendant was apprised fully his intention to claim alibi and listed the names and addresses of witnesses of his knowledge of the facts he would testify to if called. There ia no showing he intended to call to establish his alibi. The prosecutor did not notify tha that the prosecution intentionally attempted to make any concealment of tha facts defendant of those persons he intended to call to refute the evidence of alibi. The procedure for claiming an alibi and the right of the defendant to discover regarding the alibi or its refutation. We are of tha opinion that the trial court was justified in waiving the requirements of the statute. U. C. A. 1953 the prosecution's rebuttal is spelled out in Section aa amended, which provides as follows: During the course of the trial there waa a reference in the testimony to the fact that defendant had been incarcerated in the Utah State Prison. Tha de(1) Upon the written demand of the defendant, tha fendant moved for a mistrial which was denied by the court and the defendant proaecuting attorney shall specify in writing as particuassails that ruling here. During that part of the case wherein the state was larly as ia known to him, the place, date, and time of the attempting to refute the testimony of the defendant's witnesses concerning his commission of the offense. A defendant in a criminal claim of alibi the state had railed Craig Christensen and during his cue. whether or not such written demand has bean made, by defense counsel Christensen inadvertently referred to the fact that the defendwho intends to offer evidence of an alibi in his defense ant had come out of prison the day before the alleged offense, Then again on reshall, not less than tea days before trial or such other direct Craig testified that when tha defendant waa out of the "point." referring to time aa the court may direct, file and serve upon the the prison, he lived with his parents. No further reference was made to these proeecuting attorney a notice in writing of his intention items of evidence by cither counsel or by the court. It does not appear that the to claim an alibi: the notice shall contain specific inforprosecution suught to elicit the information. mation as to the place where the defendant claims to have been at the time of the alleged offense and, the The trial court's denial of the motion for a mistrial was proper, The names and addresses of the witnesses by whom he proverdict and judgment of the court below is affirmed. poses to establish the alibi. Not leas than five days after receipt of defendant's witness list, or such other times as the court may direct, the proeecuting attorney WE CONCUR1 shall file and serve upon the defendant the namea and addresses of the witnesses the stale proposes to off r in rebuttal to discredit the defendant's alibi at the trial A. H. Elletl, Justice F. Henri HennoJ, Chief Justice of the cause. (2) Both the defendant and the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided in this section. J. Allan Crwketi. Justice Nu. Richard J. Maughan, Justice 14256 -- 2- Workers Must File for Special Payment workers who are Earned Income Credit, can only eligible for a special payment of up be made to qualified taxpayers who to $400 from the Internal Revenue file an income tax return. Service will not receive their check To qualify for the credit, indiunless they file an income tax return, Roland V. Wise, District viduals must have under $8,000 in Director for Utah, pointed out total income from all sources, which include wages, salary, tips, or today. Some workers entitled to the other employee compensation. Adpayment wouldn't ordinarily be ditionally, the workers must. have required to file a tax return be- paid more than half the cost of cause their earnings are so low. maintaining a home in the United However, the payment, called the States for themselves and at least Lower-incom- e one dependent child for the entire year. The dependent child must be e under 19 years of age or a full-tim- student. People who qualify who earned $4,000 or less would receive a credit of ten percent of their earned income, up to a maximum of $400. Those whose total income from all sources was between $4,000 and $8,000 would receive a reduced credit. |