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Show THI PAGE FOUR DAILY FRIDAY, MARCH 2, 1973 RICORD T State 01 In the Supreme Court of the State of Utah Utah, i Piaintiff and Respondent, . i Wallace Dunnivan, Plaintiff and Respondent, FILED No. 12841 FILED February 26, 1973 v. 27, February Tony Long, L. M. Cummings, Defendant and Appellant, John W. Turner, Warden, Utah State Prison, Defendant and Appellant. Clerk L. M. Cummings, Clerk CROCKETT. Justice; TUCKETT. Justice: Defendant seeks reversal of his conviction of the crime of armed robbery of the Prescription Center on Washington Boulevard in Ogden on the night of April 13, 1971. This is an appeal by the warden from an order of the court below releasing the plaintiff as a result of a petition for a writ of habeas corpus filed by the plaintiff. The points raised are that the court erred: (a) in permitting Carl identification Casperson (one of the victims) to make an improper of the defendant; and (b) in refusing to grant a mistrial because of an imin-co- urt The plaintiff was found guilty of the crime of an what defendant characterizes as a "weak" identification of the defendant at ;the time of the lineup, but the court permitted him to "make a more definite identification" during the trial. The argument is without .merit. Any variation in the witness's testimony could be shown and was shown on cross-exam- i nation. This went to the credibility of the testimony and nor to urt 1 its competency. Contention (b) above is based upon the proposition that although the defendant Tony Long had taken the witness stand he was not asked either on direct or any questions about his actual complicity in the and that notwithstanding this the district attorney in arguing to the robbery; cross-examinati- on In the habeas corpus proceedings now before us, plaintiff adduced evidence to the effect that Peggy Dunnivan testified falsely as to how the weapon used in the assault was acquired and also as to certain sums of money given to her by the plaintiff. The prosecuting attorney who represented the State in the criminal proceedings testified that he was unaware that any of the testimony presented at the trial in the criminal proceedings was false. jury stated: The trial court found that the plaintiff's conviction was based on perjured testimony and ordered his release. Counsel says nothing that Tony said on the stand was a . 1 never once heard Tony say 1 didn't do it. I lie didn't commit the crime. I didn't, not me. Who? Where? ... Careful scrutiny of the record in the criminal proceedings as well as die record before us in the habeas corpus proceedings leads us to the conclusion that the record fails to support plaintiff's contention that the prosecutor used perjured testimony to obtain the plaintiff's conviction. The record also fails to show that the evidence and testimony in the criminal proceedings which pertain to assault with a deadly weapon were false in any particular, and besides the same was immaterial. We conclude that the decision of the court helow must be reversed and it is so Why? The principle advocated by defendant is correct: that if the accused does not tesriiy the prosecutor may not comment thereon because this tends to impair or destroy the privilege of not giving evidence against himself. However, the principle is not applicable here. The defendant did take the witness stand, In doing so he waived the privilege and subjected his evidence to the same treatment as that of any other witness. The comment of the prosecutor was consistent with his responsibility of calling the jury's attention to what the evidence did and did not show as bearing upon defendant's guilt or innocence; and in no way could it be considered as impairing or destroying defendant's right to claim the privilege of not giving evidence ordered. 1. Gallego v. Turner, 17 Utah 2d 273, 409 P.2d 386; Me Guinn v. U. S. , 239 F. 2d 44'; Utah Law Review, Vol. 5, No. 1, p. 96; Taylor v. U. S. , 229 F. 2d 82t; against himself. No a deadly ed As to (a) above the argument is that the witness Casperson had made Affirmed. assault with weapon on his former wife, Peggy Dunnivan. The weapon used in the assault was a single-barrelshotgun. The assault occurred in the home of Peggy was and committed in the presence of Peggy's father and two police Dunnivan officers. 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