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Show 1 COPY . JUTS' THI FOUR PAGE DAILY MONDAY. JAN! 'AUY 7. 1974 RECORD Release of Mortgages 036 Safeway S 0 Emp Fed Or Union to Wilson J Attey etux 040 Dollar Sav Bank Thos P Coyne etux to John Mathia Jr etux to Gerald .Royston Aubrey etux Neil Christiansen Heartland Realtors Inc to Kenneth M Crooks etux 314 208 to Loan 316 Western Sav Henry Berriochoa etux 056 Midwest Hlty to 076. Bankers Life Don C Reeve etux to 057 Western Tecton 105 Oak Hills Inc Sawyer Invest 106 to Richard Union Contracts Vanos Commercial Sec to Ralph F Smith 419 Mutual Life to Verdon L Bliss etux 2578 254 McGhie to Brockbank etux 363 350 , Frud Ins Jr H Co 296 A T 297 John 303 1st Tew :B to 379 to D 514 Bank etux etux 521 to etux American Savings to Chavis J etal 533 392 H -. State Savings to 1st 412 Kishiro Anzae etux J Fed Savings Quinn etux R Fed Sav Hughes etux to Sav Metropolitan to Albert R Garrick Salt 519 Emp 1st "Thrift S Dawson D Heber Nelson Const White etux Murray First Midwest Rlty 478 etux Fed Savings etux Finance to Capitol D 368 Metropolitan Sav Bank to R E Fennemore Erekson 473 James to etux Patterson to American Sacri i.ri; to Rodney Bnencer 546 Bank etux Prud Ins 558 Co iv Fisher etux M Stanley Beneficial Lili 579 to Donis etux A Peter;.: u e ' Br igham 601 University to Sii'viey etux Horman 367 Lockhart Co to Judith Bowers Iverson to etux etux to Edward etux Chas T Kloer etux etux Arnold I Oliver etux Koopman Baker etux W etux Funding & Mtge toMilton D Lunt Cr 279 Zions IstiNat Bank to Clifford G Quentin Cannon 348 Bank 359 Federal Bldg & Loan to Marl in R Shaffer G C er 418 & 250 Utah C V Fed Cr Union to Bruno H Berger 275 R Wm to Maria; J Eesler etux 420. Mutual Life 116 Utah Central Cr Union to Orville J etux to Emp R E Beneficial Life to Clark J Nagle etux 114, 115 American Sav to Noel M Taylor etux 125 St etux Const T Nielsen etux etux to 417 Zions Bank to Fete C Karpakis etux 248 to Melby-Trayn- W i' Samsion Filcher Suniland to John 112 G Utah 224- - Elty to Midwest Bank Tracy-Colli- ns to Harold 055 Western Tecton Mutual Life to Bernard L Gray etux John Antonchick 138 Cr Co American Sev to Albert Andra (du-624 to City R C West Vest Metropolitan Life I Morgan etux Thos American Savings B Face etux 534 Prud Fed Savings to Preston Heimer etux Nat Iiv-.'t- Peck etu- M Wayne 676 Lake Ideal 631 677 to Arvell to 610 Prud Ins Co u Horace J Gunn etux. to TjProperties McGhie to H: & o - McGhie Lars en '::! ! : - n -- X , Sons 678 Center Thrij Marlon E Kunz o f. 680 Center Thrift U Marlon E Kunz Interlake 681 Ti :;fJ: Marlon E Kunz to Rixey etux In The Supreme Court Of The State Of Utah f The State or Utah, Plaintiff and Appellant, No. 13156 FILED December 21, 1973 v. Kent Davenport, Defendant and Respondent. L. M. Cumminga, Clerk HENRIOD, Justice: It does not seem to me open to question but that the essential effect the granting of the motion to dismiss by the trial court amounted to a quashing of the entire proceeding, and this of course Includes the. quashing of tin information. It is submitted that this is what was done, and that it is thr v y type of arbitrary action for which the statute above referred to was design-''- ' to allow review and correction; and that reason and justice require that it should be so construed and applied. . If it be otherwise., then a judge can his own whim or caprice, for any reason, or without any reason at all, dis miss a case however important or serious, and there is no remedy for thi State (and the people) whatsoever. It is so elementary that it should not r. quire restating, that wherever there is a wrong there should be a remedy. of The State has no standing as a litigant -- appellant in this case, since the basis for its appeal appears to be stranger to the only four bases upon Utah Code Annotated, which the State may appeal, enemerated in Title 1953, and referred to in three recent Utah cases, which cases we believe to The action of the trial court, should not be disturbed. 2 be dispositive here. WE CONCUR: E. R. Callister, Jr., Chief Justice !. Far more important than what has been said above about thr permissive statute is the constitutional law of our State. Section 9 of Article VIM expressly provides in broad and affirmative language for the right of appi ;il in all cases; and it makes no distinction betwern civil and criminal cases. Its beginning sentence states: R. L. Tuckett, Justice CROCKETT. that that is what occurred in this cas.. The defendant moved for a dismiss! on the ground that he. had been denied a speedy trial. But the record don not show that there was any undue delay, nor that any delay in and of itse): resulted in prejudice to the defendant. Moreover, the record does not si-that he had requested a trial. Yet on the basis of an assertion by his couiv.i that "if the record shows, 11 when the record in fact does not so show, the felony charge was dismissed. Justice: (Dissenting) From all final judgment b of the district courts, shall be a right of appeal to the Supremr Court. It is my opinion that denying the State the right to appeal in this case an undue and unnecessarily restrictive interpretation on Section places U. C.A. 1953. This has the unfortunate effect of thwarting the processes of justice in this case; and more importantly, it has far greater potential for doing so in application to other cases. 77-39- -4, Because the foregoing is from the Constitution, it is both the fundj mental and the supreme law of our State: and statutory provisions cannoi TVi properly be deemed to nullify, limit, modify or df tract therefrom. whatevr-the bi on of the to State limit. 1; ,.,.-only limitation right appeal should necessarily exists because of the rule against twice in jeopardy. As our law has developed great emphasis has been placed on thr. pi tection of the rights of the accused. Hi is assured the right of appeal on ground whatsoever, however flimsy or unsubstantial, or, it is somtimeb Sur-ly- , it does not comport with said, even when plainly without merit. fairness and justice to the re6t of society, to indulge such generosity to tic rights of the accused, and to impose such an rxtrmrly restrictive applied ny, of the law on the State. It should be the responsibility of the court 10 b. f k keep a reasonable balance by a fair and evenhanded saif guarding oi the inn n ,ts of both. This seeking of justice requires that thi-rshould be no arbitrary 1. See Allen v. Rampton, 23 Utah 2d 336, 463 P. 2d 7 7 196 9) and authority (. any constitutional provision; and (3) that the statute itself is permissive and not prohibitory as to appeals by the State. U. C.A. 1953, provides that: to the statute in question. Section 77-39- 1 r The se points are significant: (1) That the dismissal of this appeal is on this court's own initiative, without a motion by,; or the point being raised by either party; (2) that it is purported to be based on a statute, and not on First, directing attention thrr -4, An appeal may be taken by the State: (1) From a judgment of dismissal in favor of the defendant upon a motion to quash the information or indictment. (2) From an order arresting judgment. (3) From an order made after judgment affecting the substantial rights of the state. (4)' From an order of the court directing the jury to find for the defendant. therein cited. 2. See Utah Const., Art. 1, Sec. 12. 3. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, (1967); and see comment thereon in Duran v. Turner, P. 2d (Nov. 28, 1973). It should be carefully noted that there is nothing in the statute's language indi-catiany intent to create restrictions or prohibitions on appeals by the State. 1. State v. Over s on. 26 Utah 2d 313, 489 P. 2d 110 (1971); State v. Callahan, 26 Utah 2d 304, 488 P. 2d 1048 (1971); Hartman v. Weggeland, 19 Utah 2d 229, 429 P. 2d 978 (1967), and though not a point treated in the opinion, was suggested in a concurrence in State v. Iverson, 10 Utah 2d 171, 350 P. 2d 152 (I960). 2. It is axiomatic that a jurisdictional question may be entertained at the trial or on appeal without resort to citation of authority or SDecific oraver on anneal. They are authorized by Section 9 of Article VIII of our Utah Constitution, as discussed below. On the contrary, the language of the statute is permissive only; and the expression of certain instances permitting an appeal should not be construed as a prohibition against other appeals, as allowed ng by our Constitution, where such appeals are necessary and appropriate in the interests of justice. is fundamental that statutes should be understood and applied in accordance with their purpose. That of this statute was to eliminate diffi- culties with the barrier of double jeopardy, by allowing a review of and correction of errors in criminal proceedings to protect the interests of the State and the public. It is obvious from the context, particularly of subsections (1) and (4), that it was meant to provide a review and correction of any despotic or arbitrary dismissal of a' case by a judge. It is my opinion . 18 L.Ed. 2d 493 Utah 2d , dismissal of a charge without trial because of any irregularity or error in less it has put the defendant at some disadvantage, or has had some sulni.;a-tia- l prejudicial effect upon his rights, so that he was deprived of the opportunity of a fair trial under due process of law. 4 In accordance with the views hereinabove expressed concerning !. proper application of the statute in question, I do not agree with the dismissal of the appeal. More particularly, because of the quoted constitutional provision, assuring the right of appeal in all cases, I am quite unable to understand how the matter here involved can be one in which this court is deprived of jurisdiction so that the appeal can properly be dismissed on this court's own motion. I would treat the case on its merits and reverse the trial court's ruling. (All emphasis added. ) It . Ellett, J., concurs in the dissenting opinion of Mr. Justice Crockett. U. C.A. 1953, requires that errors which do not affectThe essential rights of the parties be disregarded. See State v. Romeo, 42 Utah 4t 128 P. 530; and State v. Seymour, 18 Utah 2d 153, 417 P. 2d 655, and authorities therein cited. 4. Sec. 77-42- -1, |