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Show MONDAY, APRIL 9, 197S THI DAILY RICOID PAGE FOUR I In The Supreme Court Of The State Of Utah Slate of Utah, Plaintiff and Respondent, No. 12738 FILED March 27, 1973 v. L. M. Cummings, Clerk Eugene Myers, Defendant and Appellant. ELLETT In this case the defendant had waived his right to be present in court and cannot be heard to complain because the court did not declare a mistrial. i Justices , This is an appeal from a conviction of the crime of forgery (a capital felony offense) and sentence pursuant thereto. Other assignments of error made by the defendant in a supplemental brief are without merit. non- We find no The defendant in his original brief makes only one assignment of er- ror, viz. To hold to the contrary The great weight of authority sustains this proposition. to inclined defendant would permit a mischievously profit by his own wrongdoing and would be unfair to those individuals accused of crime who are not inclined to abscond, because the courts would tend to revoke bail and hold all defendants in custody to assure their presence at all times during the trial. error on behalf of the judgment. The court below erred in continuing the trial in defendant's absenci : WE CONCUR: There is no dispute in the facts, and the evidence justified the verdict rendered. The trial of the case began December 16, and the state rested the next day. The defendant asked for and was granted a continuance until Decern, witness to appear and testify. On the morn ber 22 in order for an of 22nd the the nor witness neither the defendant could be found. ' The ing defendant was and at all times material herein had been at liberty on bail. He was in attendance of court during the first two days' of the trial and voluntarily and intentionally absconded as soon as he was granted the five days' continuance of trial. out-of-st- E. R. Callister, ate On the 22nd of December defendant's counsel moved for a mistrial on the ground that the court could not proceed in the absence of the defendant. Counsel informed the court that there were no witnesses to be called on behalf of the defendant, whereupon the court compelled him to rest the case. Arguments were made to the jury, and a verdict of guilty was returned. A bench warrant for the arrest of the defendant was issued forthwith and was served upon the defendant January 4 following. Our statute reads: ... What this statute means is that a trial involving a charge of felony can not be commenced in the absence of the defendant. He is thus assured of notice of the commencement of the trial. It has been said that the requirement of the presence of the defendant in court at all stages of the trial proceeds on the presumption that he is in custody and must be brought before the court by the officer who detains him. It is a right which belongs to every defendant. However, it is not absolutely necessary lor a defendant who is at large upon bail or recognizance charged al with a offense to be personally present in court during all of the at his trial. It is a right which may be waived under certain proceedings F. Henri Henriod, Justice Justice: (Concurring specially) CROCKETT, I concur in affirming the conviction. However, the statement that "a trial involving a charge of felony cannot be commenced in the absence of the defendant" is not applicable to the facts of this case, and is therefore unnecessary to this U. C.A. 1953, must be looked upon in The statute quoted. Sec. accordance with its purpose: that purpose is to confer a right upon a defendant to be personally present at and during the trial. I know of no reason why a defendant cannot voluntarily waive that right. Moreover, if he can waive it during the trial, as the decision holds, I see no reason why he cannot waive it at any time, before, at the commencement, or during. The only precaution that should be required is to make sure that he had the opportunity to be present and that he voluntarily waived the right. The official records of the courts of this State show that this defendant has been many times involved in legal proceedings, and who is fully conversant with what his rights and obligations are. He voluntarily "ran out" on the trial, undoubtedly for the purpose of trying to circumvent the processes of justice. I therefore have no hesitancy in agreeing to the affirmance of his conviction. -3, See 21 Am. Jur. 2d Criminal Law 286, p. 317; Hanley v. State, 434 P. 2d 440 (1968); Diaz v. United States, 223 U.S. 442, 56 L. Ed. 500, 32 S.Ct. 250; Mulvey v. State, 41 So. 2d 156 (Fla. 1949). 51 non-capit- 5. This brief was filed after the case was discussed by the court. the administration of justice a court cannot be rendered helpless and impotent by the devious and cunning ways adopted by the defendant in this case. In Trust Deeds U. C. A. 1953. 1. Section 2. Price v. State, 36 Miss. 531. 3. State v. Aikers, 87 Utah 507, 51 P. 2d 1052 (1935). ! -3, Lake Warranty Deeds 2521 662 William C. Card etux Edwin A. Bronsity etux. to Earl E. Davis etux to N. Colonna etux. 765 Patrick 687 to Don J, Black Realty to John S. Kirkham etux. 690 J & K Enerprises to etux. Dave 768 Geor- 697 Joseph C. Nielson etux to Douglas K. Hatch etux. Letha G. Pacheco etux. 707 H. M. Rsed D. 785 Davis etux to Griffiths. 807 William L. Blackwell etux to Gorm V. Klungerik Cassity etux to Cassity. to etal. Mayor Gatehouse 75U 755 Home Hodges Bldrs . to Ester J. Hunt to t etal to 0 MaMont Western Realty to Paul J etux. Wolfgang Uhrhahn etux to Werner E. A. Hahn etux Frank J. Bilo to Mark 0. Nickolson etux. ren R. Brockbank etux ti Rodney R. Johnson etux. J. Gordon Dale W. Wharram 817 Mark Realty 825 lfyler etux to etux. 0. Hadey etux to Piltz, Jr., etux. Winn & C. Ken Farnsworth to Val Meikle etux. & Co. Const. to Equity GeraldMcCallum Park to Eiane Johnson etux. etux 86l James Ar.mr J. Lauritzen I V to 870 Eldon V. Carter etux Roger L. Sjoblom etux. to 873 Leo P. Xruscott etux Byron 0. Baumgart etux. to a 877 Ernest E. Greenwood etux Curtis etux. Forrest G, Thompson 665 000. 8309 1170 East. etux 8311 South 5538 West 1100 South Robert 686 Dean A. Pyper etux to Murray 1st Thrift $52l0. 18. 1231 Hemmingway Dr. John F. Farris etux to 1st Thrift $6710. 231 East Balam Drive. Murray Edwin A. Bronsky etux American Sav. $52,000. 3700 East 3580 South. to 688 Ellison etux to 1st Thrift $8302. South 3U0 691 West etux to Murray 1st Thrift $10,766.31. John S Kirkham etux to Prd. Fed. Sav. $28,800. 1597 Namba Way. M. Murray 01. 1002 676 & George Williamson etux Benefit Sav. $18,000. 10526 Larkspur Drive. James Lord 692 1551 Gumword Avenue, Eva W. Ross Bank $8500. Taylorsville. City. If you do not make a Will, under State Law your estate may be split up in a way that actually causes hardship to the very ones you want most to protect. Warren D. You can leave your estate to the individuals you wish provided you make a Will William I Parr etux to Robert M. Snell etux. 881 to 688 Pea rle A. Nichols liams Schoe etux. 889 Cara H. Bawden Eugene England Jr. to Wil- Q. Do it now! See an attorney and make a Will that carries our your wishes for your family. His modest fee is a wise investment! r 890 90lj Glenn C. Anderson etux Msicy 916 Palmers Bldg, to Donald E. Bonner etux. . . '.t ' s flCTTnre? Qgraa S, Goddard to Gary Randall Thompeon etux. to to Valley Salt Tui Will the State decide who inherits your property? to Daniel R. Wells etux. Bernard P. Brockbank etux to Fenton Daley etux. LaFaun C. Slagowski etux to . Johnson etux. Ure 2521 868 Jake L. Lane etux Larry 0. Garb is etux 829 830 663 855 Neal D. McCleery etux to Joe Martinez Jr. to 815 621 J. 682 South Charles Oberlin etux to Murray 1st Thirft $9591. 65 to Security Title $35, Verl L. Averett etux to Prud. ftd. Sav. Harold M. Same etux to Gene A. Bates etux. Cecil Crawford Otte etux to Western Realty. Dunn 2521 651 863 etux. Lorin P. Wheelright Dale K. Alfred F. Bonacci etux. 750 M. 812 813 Bertha B. Wolstenholme Bertha B. Wolstenholme Western Lionel L. Averett to Lloyd C. Hunt. etux. George W. George P. Corp. to Benajmin R. IPK to National Security Titli Salt Lake City 853 Crestwood Villa to Utah. Vearing A Supply. Merrill S. Lofthouse etux to Alive G. Telford. Colleen Sanders etux. 7 lli 717 776 779 Ivy S. Smith to William L. Blackwell etux. 71i6 Capital Enterprises to Steven H. Boogaard etux. Richard 713 739 Didericksen etux. K, Ciraulo etux. Pippere to Olsen etux. Paul 836 Richard Andersen etux City. 679 6751 East. 1510 $17,150. 833 J. Ennett C. Jeffery etux to Zions 1st Nat. Bank $1792.20 . Donald Arnold Deem etux 0lj9 Verl Averett. 831 773 777 to Braulio Kenneth H. Ralph 710 Ham Maiy Robert J. Sileer etux to . Naylor etux. to Larry ge Williamson 701 Ellen G. Callister to Pappasideris Chachas. 761 678 Papanikolas Brothers to National Mortgage Security Loan $15,200. Salt 0 17 ' 77-27- Chief Justice Jr., R. L. Tuckett, Justice 77-27- If the prosecution is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor, the trial may be had in the absence of the defendant: 680 trial court and, therefore, affirm the Pint Security Hank of Utah, N.A. Kind Htvurily RlnU- - Hank Kirill Kmirily Klutr Hunk nfSpriniivilkKiml Mmirily Hank nf llnuiil iful, N.A. - w to |