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Show MONDAY, SEPTEMBER INTERMOUNTAIN COMMERCIAL RECORD PAGE TEN of The State of Utah In The Supreme Court Benny J. Gallegos, Plaintiff and Appellant, taken in compliance with law in another action, when No. 13389 on the (ii) the issue is such that the adverse party and opportunity for former occasion had the right with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered. FILED September 24, 1974 John W. Turner, Warden, Utah State Prison, Defendant and Respondent. CROCKETT. Justice: cross-examinati- Allan E. Mecham, Clerk Benny J. Gallegos, who is serving a term in the Utah State Prison pursuant to a conviction of rape, appeals from a judgment of the district court denying his release in habeas corpus proceedings. His petition was based upon an allegation that the victim had falsified at his original trial. After two separate hearings before the district court, findings were made Emphasis added. In urging that it was not shown that the State had exercised diligence reliance on a list of in attempting to find the victim, petitioner places some 1 steps recited as having been taken in Poe v. Turner, which he insists sets the pattern as what should have been done here. It is true that many and various things might be done in attempting to locate a witness. Neither those listed in the Poe case nor, we assume, any other case, would be all inclusive or exclusive. The requirement is simply that the trial court be persuaded that the party (the State) has acted in good faith and with reasonable diligence and is unable to locate and bring the witness to the trial. The rule of review is comparable to that in most situations wherein it is the prerogative of the trial judge to make the determination. That is: he is allowed considerable latitude of discretion; and that his ruling will not be reversed in the absence 2 of a showing of clear abuse thereof. against him and his petition was denied. The principal error claimed is that upon the second hearing, the court admitted in evidence the transcript of the testimony of the victim, which had been taken at the first hearing. Some months after the petitioner had been convicted by a jury and committed to the State Prison, his former wife and two of his sisters observed the rape victim, Roselyn Lewis, in a downtown store. In a conversation with them she allegedly admitted that she had testified falsely in Benny's trial. She was asked to sign a statement. But his sister, Gloria Gallegos, who testified concerning this incident, said that she appeared to be nervous and that it was difficult for her to write. So the statement was written on the back of an envelope, which the victim signed. Based upon this, a petition for writ of habeas corpus was filed in the district court; and a hearing thereon was held before District Judge Leonard W. Elton. The victim at that time stated that she had signed the recantation out of fear imposed by petitioner's relatives; but that her testimony at the trial had been true. Despite contrary testimony given on that point. Judge Elton announced from the bench his decision rejecting the petition. But he passed away before signing findings and judgment. In this case representations were made to the court that a search had been made, that bench warrants had been issued, and that the victim could not be found. In fact petitioner's own counsel did not disagree with, but rather joined in such representations. Accordingly, there was ample basis for the finding of unavailability. It also appears that the other requisites of Rule 63(3) quoted above are satisfied: That the prior hearing was for the same purpose; and that the petitioner and his counsel "had the right and opportunity for with an interest and motive similar" to that in the present proceeding; and in fact availed themselves fully of that opportunity for cross-examinati- cross-examinati- After some subsequent abortive proceedings in the federal court, another hearing was had before Judge D. Frank Wilkins of our district court. At the time of that hearing, it was indicated that, although efforts had been made to locate the victim, she could not be found. On the basis of her unavailability, the transcript of her testimony at the prior hearing before Judge. Elton was admitted in evidence. Again in this hearing. Judge Wilkins resolved the disputes in the evidence against the plaintiff, and made findings and judgment rejecting petitioner's contentions. WE CONCUR: E. R. Callister, Jr. , Chief Justice F. Henri Henriod, Justice A. H. Ellett, Justice Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmis -sible except: (1) . . . (2) . . . (3) Depositions and Prior Testimony. R. L. Tuckett, Justice 1. Poe v. Turner, 353 F.Supp.672 (U.S.D.C., District of Utah, 1972). See also, Marcusi v. Stubbs, 408 U.S. 204 (1972). 2. Cf. Del Porto v. Nicolo, 27 Utah 2d 286, 495 P. 2d 811; Barker v. Dunham, 9 Utah 2d 244, 342 P. 2d 867; Wiese v. Wiese, 24 Utah 2d 236, 469 P. 2d 504. . declarant is unavail- able as a witness at the hearing, testimony given as a witness in another action or in a deposition the parties, but what they may or may not have done in the rearing and support of the children. Nevertheless, the 1956 modification of the decree which granted the defendant the privilege of the use and occupancy of the family home cannot be regarded as awarding it to him, nor as divesting the plaintiff of her interest therein. There was set forth but a conditional trust, which was to come into being only upon the contingency that it became necessary to sell the home and move his family to Salt Lake City. He did not do so and, whatever else may be said about the projected trust, the condition precedent to its coming into being was not fulfilled. Therefore, No. 13482 FILED September 24, 1974 Alvin L. Iverson, Defendant and Respondent. on. There having been shown no error or impropriety in the proceedings, or in the findings and judgment of the trial court, they are affirmed. The controversy concerning the admission of the transcript of the testimony of the victim Roselyn Lewis given in the prior proceeding focuses upon the following portions of Rule 63 of the Utah Rules of Evidence: Haroldean M. Iverson, Plaintiff and Appellant, on The petitioner's argument is that he was denied due process of law in not being accorded the right of confronting the witnesses against him. Particularly, that the State did not meet the conditions of Rule 62(7)(e), Utah Rules of Evidence, relating to unavailable witnesses: that the witness . be "absent from the place of hearing because the proponent-- . . does not know and with diligence has been unable to ascertain his whereabouts. " 1 (a) . . . (b) if the judge finds that the SO, 1974 Allan E. Mecham, Clerk CROCKETT, Justice: 1. Plaintiff appeals from the granting of a motion for summary judgment against her in supplemental proceedings in a divorce action which awarded the defendant as his sole property the family home in St. George, Utah. The parties were married in 1945. In 1954 they were divorced. The defendant husband was awarded custody of their three minor children; and was also given "the use and occupancy" of the home which they had acquired and held title as joint tenants. (Other provisions of the decree are not material here. ) Two years later, in May of 1956, in a supple- mental proceeding, the defendant persuaded the district court that it would be advantageous for himself and the children to move to Salt Lake City. Accordingly, there was entered a "Modification of Decree" permitting him to sell the home, but ordering that the proceeds be held in trust to buy a home in Salt Lake City for the benefit of the minor children. This plan was not carried out and the St. George home was never sold. Although the defendant has occupied the home during all those years the title still remains in the parties as joint tenants. Insofar as can be divined from the record, the instant proceeding was precipitated because a part of the property was taken by the State in eminent domain, from which about $1, 100 was realized. In interrogatories served upon the defendant, and his answers to them, it appears that he turned over this fund (together with money he added thereto) to the children, who are now adults. The plaintiff asserted her claim of interest in the funds and the property. The defendant moved for summary judgment that the property belonged to him. appreciate that all aspects of proceedings in divorce matters are equitable; and that the court has "continuing jurisdiction to make such subsequent changes or new orders with respect to the . . . distribution of the property as shall be reasonable and necessary"; and that this includes the power to take property from one spouse and to award it to another where the interests of justice so require.2 In making his determination the trial court may consider not only all of the present circumstances of Sec. 35-3-- Jur. 2d 926, at 1054. projected trust aborted; and the title to the family 2. 24 Am. the ancy remains unaffected. I home in joint ten- Notwithstanding the equitable powers of the district court in inter-famicontroversies in divorce matters, and the acknowledged broad latitude of discretion allowed therein, 3 the court cannot act arbitrarily, or on supposition or conjecture as to facts upon which to justify its'order. ly In the absence of any proceeding in which evidence was taken relat ing to the equities as between these parties; and in the absence of a trans- jcript of any evidence of that character, we do not see in this record any justification for the granting of a motion for summary judgment divesting interest in the family home. plaintiff of her joint-tenanjthe i cy In accordance with what has been said above, it is necessary to vacate the order granting summary judgment; and to remand this case to give the parties the opportunity to fully present whatever evidence and contentions they desire as to what equity and justice require. No costs awarded. WE CONCUR: E. R. Callister, Jr., Chief Justice F. Henri Henriod, Justice A. H. Ellett, Justice We ' " U.C.A. 1953. 5, R. L. Tuckett, Justice l.!- - I IlUUli! 4,lP.2d I 503, and author - .' on |