OCR Text |
Show MONDAY, APRIL 8, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE8IX State Conviction Stands testified that the purpose of the knife was to pick the lock on the trunk of the automobile. The prosecutrix was unaware that the knife would be used for that purpose. A police car approached the Gallegos automobile and shined a spotlight on it, at which time Gallegos left and the defendant fled from the automobile and hid among the bushes. The prosecutrix cried out that she was being raped, and thereafter the officers succeeded in finding and captur- Rape Prior to Criminal Code Date The State of Utah, Plaintiff and Respondent, No. 13523 FILED March 25, 1974 v. Max ing the defendant. Jamei Nunez, Defendant and Appellant. L. M. Cummings, Clerk TUCKETT, Justice; Defendant was found guilty of forcible rape and was sentenced to serve not less than one nor more than 15 years in the Utah State'Prison, and he appeals. The actor compels the victim to submit or participate by any threat that would prevent resistance by a person of ordi- On June 21, 1973, the prosecutrix, and a woman companion, had left a tavern in downtown Salt Lake City at about 3:00 a.m. The two women being without sufficient funds to call a taxicab attempted to hitchhike a ride to their homes. They were offered a ride by the defendant and Nick LeRoy Gallegos. The prosecutrix got in the front seat with the two men and her companion got in the rear seat. Gallegos, who was the operator of the automobile, drove to the intersection of 17th South and State Street where the woman companion left the automobile. Gallegos then proceeded northward on State Street, but on reaching South Temple Street he proceeded north rather than turning toward 'the east where the prosecutrix lived. Gallegos proceeded to the west side of Salt Lake City and then to Memory Grove and up City Creek Canyon. The automobile was stopped in some bushes off the roadway. During the ride the prosecutrix pleaded with the men to take her home, and after th'e automobile was stopped she pleaded with them not to hurt her nor to proceed further with their purpose. During the course of the ride the two men conversed in Spanish for the most part, a language with which the prosecutrix was not familiar. After the automobile had been stopped, defendant ordered the prosecutrix to get in the back seat and threatened her with violence if she did not comply. In the back seat the defendant proceeded to remove part of the prosecutrix's clothing, and then had intercourse with her. Other than pleading and crying, the prosecutrix offered little physical resistance, but she did testify that she greatly feared physical abuse from the defendant and his companion should she resist. During the time the automobile was stopped an inquiry was made by one of the men as to the location of a knife which was in the car, and at the trial Gallegos Osorge Christens en Wright, etal., Plaintiffs and Appellants, Counsel Vorsley, Snow ft ' Christensen Salt Lake City Almira Black Wright, et al. , Defendants and Respondents. Counsel After a careful consideration of the entire charge of the court, we find no prejudicial error which would compel a reversal. In this connection, and. after a careful appraisal of the evidence, there is nothing to indicate that the prosecutrix consented or that her conduct would tend to create, an impression 1 in the mind of the defendant that the proxecutrix had in fact consented. The only other claimed error on the part of the defendant has to do with a question asked the defendant on by the prosecutor. It is the defendant's contention that the question was a comment on the defendant's The trial court denied the defendant's privilege against motion for a mistrial but did strike the question from the record. It appears to us that the claimed error was not prejudicial. cross-examinati- on on. After a careful consideration and examination of the entire record we error of sufficient gravity as to require a reversal. The judgment of the court below is affirmed. find no State v. Roberts, 91 Utah 117, 63 P. 2d 584. 1. FILED March 22, 1974 L. M. Cummings, Clerk Lamph ft Newey ELLETT, Justice: This is an appeal by plaintiffs from a summary judgment in favor of the defendants. The appellants are the heirs of George F. Wright, Jr. (hereafter referred to as Junior), who was the only son of George F. Wright, Sr. (hereafter referred to as Senior), by his second wife, Almira. The defendants are children of Senior by his first wife, Maude. The following dates are significant to a determination of this matter: Senior married Maude. Maude died, leaving six living children. Senior married Almira. Junior was born. Senior made his will. Senior died testate. Decree of distribution was entered in the matter of Senior's estate. 1971 Junior died leaving heirs. 1972 Almira died. The will of Senior provided: to my said wife, Almira Black Wright, to take and use the same and the net income thereof during all the term of her natural life, and after her death to my son George F. Wright, Jr. , provided he pays within six months after her death, the expenses of her funeral and the sum of One Hundred Dollars ($100.00) each to my other children, namely: Lucille Wright Davenport, Leone Wright Shreeve, Thelma Wright Winters, Edwin William Wright, Cecille Wright Hendricks and Pearl Wright Parish; and in the event he shall fail or decline to pay said funeral bill and said sum of $100.00 to each of said six children within said time, then I direct that said real estate be sold and the net proceeds of sale be distributed equally among said six children and my said son George F. Wright, Jr. And if any of my said children should die without issue, then his or her share shall go in equal shares to the survivors and the issue of any deceased child or children, so that the child, or children collectively, of a deceased child shall take only the share which his, her or their parent would have taken if living, my intention in all cases being that the issue of any deceased child shall take collectively tbe same share as the deceased child would have taken if alive. In his memorandum decision the trial court stated the teasons for his ruling, to wit: ... AftST a substantial reading of the authorities including The Law of Future Interests written by Lewis M. Simes and Allan F. Smith the court has determined that it is not necessary to characterise the devise in question as either subject to a condition subsequent or precedent. Rather the Utah statutes on this subject indicate that the court's function is to seek out and give effect t6 the testator's intention. It seems to the court that the testator's intention . . .'was that testator intended George Wright, Jr. to perform a personal act in exchange for the personal enjoyment of a particular piece of property and that if George Wright, Jr. did not personally perform his right of personal enjoyment would not vest or would be divested by nonperformance. . . . Emphasis added. 1 The trial court was in error in thinking' the will required a personal act on the part of Junior. The payment of money is not a personal act which could be rendered only by the devisee. It could be just as satisfactorily made by the children of Junior as by Junior himself, and it should make no difference to the respondents herein. The funeral director would not care who paid the burial expenses. His sole interest is in receiving the money for the services rendered. The defendants were entitled to receive $100.00 each, '(and whether it came from Junior or from his estate or from his heirs could not matter to them. As the trial judge said, a will should be construed according to the intention of the testator, and we should look at the situation as it existed at the time of the execution of the will in question to determine that intention. The first wife, Maude, lived but a short time in the house,' and her children, the defendants, all left the home while they were quite young. Junior was born and reared in the house, and that was during the declining years of his father. At the time of the execution of the will, 51 years had elapsed since Senior was married to the mother of the defendants. By the will Senior gave a life estate in the home to his wife Almira and the remainder to Junior provided Junior paid the funeral expenses. of his mother and $100. 00 cash to each of his half brothers and sisters. Since Senior left only a life estate to Almira, he was interested in making provision for.payment of her funeral expenses, and he certainly would consider that her own descendants would be more likely to see that she had a decent funeral than would her stepchildren. Under the ruling of the trial court, who would pay for the funeral? It can hardly be thought that the testator intended that the widow be given a pauper's burial when he made his will. f No. 13333 Robert L. Newey 0gd(f' Utah 1897 1920 1921 1922 1948 1956 1957 nary resolution; . . . . While fhe court did not instruct in the language of the statute, the instructions regiven by the court were sufficient to inform the jury as to the resistance from resisting by quired by a female, and the effect of her being prevented threats of immediate and great bodily harm which create in the mind of the female a real apprehension of dangerous consequences. Estate Case Prompts Error and Reversal Reed L. Martineau v. This offense was committed approximately ten days prior to the effective date of the Utah Criminal Code, and pursuant to its terms the defendant was entitled to any defenses available under the code. Oh appeal it is the defendant's contention and the main thrust of his appeal that the trial court failed to instruct the jury as to the sufficiency of the prosecutrix's resistance as which provides as follows: defined by Section It of interest to note that the last clause in the will heretofore cited pro- - iB vides: . . . my intention in all cases being that the issue of any deceased child shall take collectively the same share as the de- oL ceased child would have taken if alive. It is clear that had Junior been alive, he would have taken his rightful debut since he is deceased, his children pursuant to that last clause are envise, titled to take whatever he would take if alive. Aside from what appears to me to be the clear intention of Senior, the word-inof the will itself requires a holding that the condition was not one precedent to the vesting of title in Junior. A statement taken from the annotation found in 71 A. L. R. at page 1052 is of interest. It reads: . . . Of the expressions of contingency so used, the words "when," "as soon as," "at," "upon," and "from and after," are " suspensive and not directly conditional, receiving such conditional " 1. Sec. U. C. A. 1953 effect as they may have from the context, and, not being capable of a nonsuspensive and at the same time conditional operation, they can never operate as a condition subsequent, but only (where they have a conditional operation) as a condition precedent; while, on the other hand, the words "if," "in case " and "provided" are directly conditional, but not necessarily suspensive, so that they may operate either as a condition precedent or a condition subsequent. 74-2-- ' 1, It may further be noted that, apart from indications of intention gleaned from the context,particular the courts are apt to be influenced by their inclination toward construction which will give the legatee or devisee a vested rather than a contingent interest, (Continued on Pag ... 7 g |