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Show THE DAILY PASk'FOUR FRIDAY, JUNE 30, 1972 RECORD In The Supreme Court Of The State Of Utah William Whetton, No. 12675 Plaintiff and Appellant, uJ ,! rJS ..Vj'J. .' FILED May 30, 1972 V John W. Turner, Warden, Utah State Prison, Defendant and Respondent. L. M. Cummings, Clerk CROCKETT. Justice; Plaintiff commenced this habeas corpus proceeding in the district ' court on December 24, 1970, seeking release from the State Prison where he is serving a sentence for second-degre- e murder after conviction by a jbty eight years earlier, in December, 1962. He stated various claims for relief which turned out to be mainly that he did not have competent ,U .V, counsel, and that in proceedings prior to the trial he was subjected to improper questioning. In order to substantiate these claims he requested a transcript of the proceedings. This led to the discovery that the reporter's notes, which appear to have been filed in the county clerk's office eight years earlier, cannot be found. The inability to furnish that transcript is now the gravamen of his attack upon his conviction and contention that he should be released from prison. The fact is that the plaintiff was represented by an attorney of extensive experience in defending criminal cases. It appears from the record in the instant case that he was able to obtain a verdict of second-degre- e murdeT which he thought might have been first-degrmurder. Concerning the appeal from that conviction plaintiff testified herein: to Geraldine H. Panek, ee THE COURT: Murray City Court You had a chance to appeal didn't you? Judgments Weren't you given that opportunity? 56710 Western States Credit Assn. v. JOEL S. MR, WHETTON: No, sir, I was not because I was kept in the County Jail after the trial from December either the 3rd or 6th. 56711- THE COURT: Hansen about it? 13751- said, "you work for me. I don't work for you. Go put it back m, 1 v. too 55830- - v. 55927- - 56178- - 56263- - LYNN EVERILL $566.80 to 56388- - pltf. Security Adjustment Bureau v. $96.17 to 56155- - SALLY SORIA pltf. Interstate Collection v. A JANET EVANS 56179- - v. v. 56625- - Bureau Credit Enforcement v. ERVIN R. LARSEN $21.85 to 56650- - pltf. Credit Bureau v. Bill, SLC Interstate Collection E. A NANCY $633.02 to pltf VERNON 56671- - R, L. Tuckett, Justice 56677- - F. Henri Ilenriod, Justice v. A, H. Ellett, Justice v. J. A JACQUELINE $310.00 to pltf. Interstate Collection GENE 56682- - R Interstate Collection MAURICE BR0PHY STATEN $L86.?8 Interstate Collection MICHAEL H. D0N0S0 $631. 59 to 1. $55.66 PARSON pltf. 56670- - Chief Justice pltf Knight Adjusment A. WEBB $317.13 SHARON to pltf. v. $11.10 to pltf 56180- - WE CONCUR: PARLEY Knight Adjustment $50.81 to to BRIGHAM RICHRD Y. THURMAN ULIN Turner, Fidelity Industrial Credit v. v. P. 2d 343. Credit Bureau v. LEONA HASLAM $16.00 to pltf Affirmed. 24 Utah 2d 19, 465 to SLC character exists in this case; and the trial court was well within his prerogative in the interests of justice in rejecting plaintiff's claims and denying his petition. Mr, Phil L. Hansen, who later served as Utah Attorney General, 1965 to 1969. 2. See Art.' I, Sec. 12, Utah Constitution; and see statement concerning such rights in Gallegos v. Turner, 17 Utah 2d 273, 409 P..2d 386. 246. 3. See Dennett Leasing v. Ellison, 15 Utah 2d 72, 387 P. 2d 4. See Griffin v. Illinois, 351 U.S. 12. 5. For statement of this court concerning limitations of habeas corpus when attempted to be used as subterfuge to avoid requirements of law and obtain review on matters which could have been reviewed on timely appeal, see Price v. Johnston, 334 U.S. 266; and Gallegos v. Turner, footnote 2 above; Jaramillo v. Nationwide Credit pltf. We do not desire to be so arbitrary as to say that in no instance would the lack of a transcript be deemed of critical importance. Common sense as to what fairness and justice demand should be applied to the circumstances shown. If it appears that there is any reasonable likelihood that there was some substantial failure to accord the accused the protections our law affords, or that there may have been a miscarriage of justice, such as, for example, where there may have been some chicanery or connivance to convict one innocent of crime, or a case of obvious mistaken identity, or some other such circumsiancethat it would be wholly unconscionable not to the conviction, then the best be should to made reconstruct the record and ascertain just what possible effort occurred. 4 This determination is to be made by the trial court, subject to the usual rules of procedure, and review by this court. Upon the basis of the record before us it is not made to appear that there is any likelihood that anything of that Jr., pltf. MR. ROBERT L. it MRS. MATHIE $270.15 ng E. R. Callister, GENE SECURING v. re-exam- ine . Jansa Lamhei'tus LEROY $300.00 to late. After a lapse of eight years the plaintiff attempted to persuade the trial court, and that failing, to persuade this court, mainly on the basis of his own assertions, that he was not accorded due process of law nor given a fair trial. In that regard there are several observations to be made. Our law provides for numerous and adgcmaie orotections of the rights of one suspected or accused of crime. The judges and lawyers who put them into effect are professional people concerning whose competence and integrity there are also adequate safeguards. The very commitment of their lives is to the proper carrying out of the purposes of their calling and protecting the interests of those they serve. For these reasons, and based upon our own knowledge and experience, we deem it safe and proper to assume that proceedings have been carried on in conformity with the law. Accordingly, when there is no transcript as to what happened, we indulge that presumption; and in the absence of persuasive proof to the contrary, the trial court as the finder of the facts is not obliged to so find. self-servi- Nationwide Credit L. A MRS. PAMELA $216.86 to pltf. RANDALL BARR said, "I'll take the risk. Put it back in," can't," It was Sharon Spendlowe 55756- - said, "I can't;" He said, "If do you will be tried again for First Degree and shot. " "1 - pltf. topltf 11 said, Gilliam v. MICHEL CKLEY $732.23 to pltf. 55381- Alvin H. Keller v. GRANT E. JOHNSON $11.20 1 He James C. pltf ISLAND C. CHAPEL $128.00 to MR. WHETTON: Well, he came to me in the County he said that he had withdrawn the appeal and 1 raised and Jail hell with him, I - v. Did you confer with your attorney Mr. And he $661.28 to WOLFIET 56687- - v. pltf Interstate Collection JOE WILSON to pltf 56696- - $19.55 Credit Bureau v. BRAD PERKINS $123.59 to pltf. 0 SLC DWW NOTICE eopte EES. of United State DAtt-- v Supreme Court i r |