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Show FRIDAY. JANUARY 11, THE DAILY RECORD 1974 PAGE FIVE In the Supreme Court of the State of Utah I think Instruction No. 5 alio ought to have the statement in there, the Court did Bay in the court e of an unlawful act which is a misdemeanor, there ought to be some amplification, battery is a mis demeanor and can be considered an unlawful act. Was there sufficient evidence to convince the jury beyond a reasonable doubt that the defendant without provocation intentionally and unlawfully killed the .victim? The evidence showed that the defendant was 33 years of age and weighed 230 pounds, while the victim was 62 years old and weighed only .145 pounds'. It further showed that blood was splattered all over the walls of the cell and on the floor and that the victim's jaw bone was broken in several places and his frontal chin bone fractured. His liver was lacerated and torn, and this injury would have caused his death had he not drowned in his own blood. He sustained the not to evidence related While the instruction contained language given multiple abrasions on the left forehead, the right upper eyelid, the right temple regarding involuntary manslaughter, the jury could not have been misled. If any the left jaw, the back, the neck, the chin, the upper chest, and both sides of the rib cage. thing was amiss, it was in telling the jury that the defendant could be convicted of the crime of involuntary manslaughter if an unintentional killing occurred whil The defendant was examined by a doctor soon after the killing, and no defendant was in the commission of a lawful act, etc., without due caution and were found on his person to indicate that he had been in a fight, visible marks circumspection. This would but give another idea to the jury that they might fine nor did the defendant complain of having sustained any injuries. other ways to convict the defendant of involuntary manslaughter than that which to be wanted the defendant convictei the evidence would support. However, since At the time of the original arrest the defendant was truculent and belof this lesser included offense, he ought not be heard to complain about this side ligerent and used vulgar, abusive, and threatening language to the arresting if such the it be. from help judge radio in the officer's car and officer. He kicked and smashed the two-wa- y threatened to slash the "pretty face" of the officer's daughter. He threatened 5. 14 Utah 2d 266, 268, 382 P. 2d 407 (1963). harm to the officer's wife and told the officer that he had a "forty-five- '' and 6. See State of Utah v. McCarthy, 25 Utah 2d 425, 483 P. 2d 890 (1971). that "I'll have you on your hands and knees and you'll be praying when I pull The judge instructed the jury on the elements of murder in the second the trigger. Because I'll blow your God damn brains out. This is not a threat, and of are no It is to be noted that while the defendant somewhat criticised the instruction given, he did not proffer a better one to the court. A defendant in such a case is in a poor position to argue that this court should reverse a trial judge when the mischief complained of, if any there be, could have been avoided by a little timely assistance given to the judge by the objector. --- there degree and also of voluntary manslaughter, assignments the error in that regard. The court told jury that if they were not satisfied beyond all reasonable doubt that all elements of second degree murder had been established, they could not find the defendant guilty of that crime and should then consider whether the elements of the crime of voluntary manslaughter had been established beyond a reasonable doubt. A similar instruction required them to consider involuntary manslaughter if they were not convinced beyond a reasonable doubt that all elements of voluntary manslaughter had been established. this is a promise. " This was the mood of the defendant when he was placed in the cell with the victim, and with this attitude on his part shown to the jury, we cannot say that from the evidence reasonable men could not have found that with no suf ficient provocation the defendant unlawfully beat the victim, either with the intent to kill him or to do such great bodily harm to him that death was likely to be the result. In either case, the verdict would be proper. & The judgment is affirmed. By finding the defendant guilty of murder in the second degree, ih-- . jurors were apparently convinced that the killing was not limited to the elements constituting the crime of involuntary manslaughter. WE CONCUR: The defendant argues that the elements of murder in the second degree are not sustained by the proof given at trial. E. R. Callister, Murder in the second degree as defined in the statute existing at the time of the commission of the crime herein is the unlawful killing of a human 7 being with malice aforethought. Malice may be either express or implied. J. F. Henri Henriod, Justice Chief Justice Jr., Allan Crockett, Justice R. L. Tuckett, Justice 7. Sec. U.C.A. 1953. 8. State v. Canfield, 18 Utah 2d 292, 422 P. 2d 196 (1967); State v. Russell, 76-30- ' -2. 106 Utah 116. 145 The State of Utah, Plaintiff and Respondent, No. 13361 FILED December 26, 1973 P. 2d 1003 (1944). The instruction was proper in telling the jury that the significance of the conduct of the defendants was a matter for their consideration along with all other facts given in evidence. The defendants each testified at trial and each admitted to having been convicted of a felony prior to the time of these crimes. They were each residing in the Halfway House a downtown home where prisoners eligible for paM. L. Cummings, Clerk role are placed on an honor basis while the parole officer seeks employment for them. One of the defendants also told the jury that his home was in Colorado, ELLETTf Justice: of the and the jury knew that Roosevelt, Utah, was approximately two-thirof the crime to the Colorado line. scene distance from the The defendants appeal from convictions of the crimes of grand larceny and burglary in the second degree. They claim the trial court erred in three As to the instruction regarding possession of recently stolen property, particulars, viz. : the court told the jury that bare possession when not coupled with other culpatory or incriminating circumstances would not justify a conviction, but that (a) In denying their motion to dismiss for lack of evidence; possession of recently stolen property coupled with flight and the making oi (b) In its instruction on flight; and or unreasonable or unsatisfactory explanations of the possession might false (c) In giving its instruction on possession of recently stolen property. be sufficient to connect the possessor with the commission of the offense. Steven Albert Gonzales and Orlando Roybal, Defendants and Appellants. --- ds The undisputed evidence shows that some time after six p.m. on October 27, 1972, someone broke into a building belonging to Thomas J. Ivestor and took a 1968 Buick Electra 225 automobile therefrom as well as a wrist watch from a cash register located therein. About one a.m. on October 28, 1972, the two defendants were riding in the stolen car, being driven by one of them, in the town of Roosevelt, Utah, some 150' miles distant from the place where the burglary occurred. The Buick had only one headlight in operation, and a highway patrol officer turned his car around intending to advise the driver of the headlight defect He turned his red light on, and the Buick car was accelerated rapidly. When he gave chase, the two occupants of the Buick tried to escape by fleeing on foot whili the car was still in motion. The defendants were captured and placed under arre The watch stolen from the burglarized premises was in the coat pocket of one of the defendants. . Here the defendants refused to make any explanation as to their sion of the stolen car at the time they were apprehended. If they were in fact innocent of the theft, it would seem appropriate at that time for them to explain how they came into possession of the car. At trial they gave an explanation of their possession of the car which would hardly convince anybody that there was any merit thereto. There was no error in giving the instruction. The evidence of possession of recently stolen property and of flight permits the jury to draw the same inferences regarding burglary as it does for larceny where both crimes arise from the same set of circumstances. The court instructed the jury regarding flight as follows: The judgment of the trial court is affirmed. The flight of a person immediately after the commission of a crime, is not sufficient in itself to establish his guilt, but it is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. Whether or not evidence of flight shows a consciousness of guilt, and the significance to be attached to such a circumstance, WE CONCUR: E. R. Callister, Chief Justice F. Henri Henriod, Justice are matters for your determination. The defendants argue that flight, to be of any importance in indicating be from the scene of the crime. The thief who stole the car did must guilt, flee from the scene of the crime and in the stolen car. The car with the defendants in charge of it was 150 miles distant in a very short period of time after the crime was committed. They also fled from the officers in Roosevelt and attempted to hide themselves. This conduct certainly indicates a guilty conscience if not a consciousness of guilt of the crimes with which they were charged. Jr., J. 1. Allan Crockett, Justice R. L. Tuckett, Justice State v. Kirkman, 20 Utah 2d 44, 432 P. 2d 638 (1967). 1 IN THE SUPREME COURT OF THE STATE OF UTAH Vera W. Bennion, his widow, and Bennion Ranching Company, a ooOoo corporation. Defendants and Respondents, Dudley M. Amoss, Plaintiff and Appellant, Counsel i Worsley, Snow ft Christenser Reed L. Martineau 700 Continental Bank Bldg. r Don W. Bennion, Administrator of the Estate of Heber Bennion, Jr., Don Weiler Bennion, Executor of the Estate of Heber Bennion, Jr. , Vera W. Bennion and Bennion Ranching Company, a Utah corporation, Plaintiffs and Respondents, Counsels Nielsen, Conder, Haneen Arthur H. Nielsen klO Newhouse Bldg. No. 13084 FTT.F.D ft Henroid |