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Show THE SALT LAKE TIMES Page Three FRIDAY, JANUARY 2, 1976 niASHIlCTON Utah Supreme Court Opinions IEP0IT IN THX SUPREME COURT O T THE STATE -- By Rep. Allan T. Howe Stito of Utah, Pliintiff ind Roiyondont, be-ca- ' Transportation Committee, that state governments could run their own general aviation programs quicker and for a lower cost than could the federal government," Congressman Howe said. It was for this reason I introduced the amendment and I am happy to report it was included in H.R. 9771 , when it passed the full House," he said. Immediately after passage of the bill, Congressman Howe wrote a letter to Transportation Secretary Coleman urging him to select the State of Utah as one of the eleven states. "Utah has had an outstanding State Aviation Department since 1937 and I am confident they can run a successful demonstration project," he continued. "Through' Utahs example, I am sure the Secretary of Transportation will extend this authority to all states in ed figures from the Joint Economic Committee survey which show that as a group, state and local governments have increased taxes by $3.6 billion and reduced expenditures by $3.3 billion in a year of runaway inflation. "The revenue sharing program has been a major factor in easing state and local governments out of the economic recession. To take desperately needed funds away or at least withhold authority, could create another economic setback," he concluded. Congressman Allan T. Howe has expressed his displeasure over President Fords veto of the tax cut extension. The House failed to override by a narrow margin. "Earlier this year, the Congress acted decisively to turn around an economic recession. The tax cut has been economically sound and most helpful in easing our economic situation. It is disappointing to see the President of the United States playing such obvious politics with the American people," he com-- , mented. The Congressman explained the President vetoes the measure because Congress would not adopt a $395 billion spending ceiling qn a budget they nad not even seen. "The Congress has repeatedly asked the Executive Branch to explain or at least hint at where the cuts are- to be made, but, unfor-- . tunately, we have not received that information," he stated. "To comply, with such a request, made pri- D-Te- x., Congress cannot adopt a ceiling on a budget we have never seen. But the tax cut must continue to help our economy recover. Certainly, a politically motivated move on the part of the President does not give us the leadership we need," he concluded. Rate Relief Granted Utilities By Utah Public Service Commission The Utah Public Service Commission has granted Mountain Fuel Supply Company substantial rate relief in two separate orders. The first order granted Mountain Fuel a general rate increase of $9,476,131, culminating a case i which has been before that body for eight months. Of this increase, $5,996,121 has been in effect since August 18, 1975, pursuant to an interim order of the commission. The second order recognized that tax savings to the company in years past due to percentage depletion had been passed on to customers in the form of lower. rates, and now that percentage depletion had been repealed by the U.S. Congress, the result will be an "annualized increase in the cost of natural gas in service . . . $1,498,592 Utah." The two orders increased MFs Utah rates by $10,974,723 of which $5,996,121 became effective last August and $4,978,602 became effective December 3, increasing .the cost of natural gas service to ... ; tkr.it tbit would priv.nl nary rasoluttea. by any by pnrroi of ordi- On tha Issuesiwkathor the proseentria of fared "such reasonable resistance aa might reasoaably be expected nndsr the circumstances"; and whether tha defendant by force or throat ovo reams Hi tha State points eul that tha defendant was sla lachss taller, considerably heavier, and that those thinga, coupled with hla maacullna strength and tho throat with aa lea pick, which could bo deadly, bar te alimony Is sufficient to justify the conviction uadar that statute. No. 14174 FILED Doeombor 24, 1474 Koonotk Virgil Hotrord, Dofondint ind Appellant. niiltlnci Allan E. Macham, Clark CROCKETT. Juiticoi Konnotk Virgil Howard wao convletod of rape1 In a trill to the Slntll not suffl-cloDiitriet Coart. Ha appoala, contending: (I) that tho ovldonco to Jnitify a ballot boyond a reasonable doubt of bio guilt, and particularly that it did not ikow that tho proaocutria raalatad and that It waa over-coby (area; and (I) that tha court arrad in rajacting a proffer of te alimony concerning her raputatioa aa to moral character. nl On tha early afternoon of April 4, 1974, tha defendant, a man, waa la hit. Pleasant, Utah, la connection with hlo Insurance bnainaaa. Ha observed the proaocutria alongaida of tho highway, stopped Me pickup truck, and asked har if aha would like to go for a ride. Sha la a divorcee who had not previously mot tho defendant. However, a he accepted tha Invitation and thay drove far an hour or two (their eatimatea vary) through tha couatryaido. Including southward through Mantl. On southward, about' two miles north of Gunnison, tha defendant tumad off the main highway, and purportedly to domonatrato tha quel It la a ef his now truck, drove ovar a hill and . parked. Aa might be aapocted, their respectlvo versions of what occurred neat la In sharp conflict. Hlai that thay engaged In soma petting and preliminaries, Hors: that upon stopping tho truck, ha followed by consensual Intercourse, alaad an ice pick, placed It at har throat and threatened that aha moot submit; than grabbod her arm, dragged har from tho truck, throw har to tho ground; and daapita har protastattona, screaming far help, and struggles to gat fraa, ha euccaedad la forcible rape. Tha parties than got back In tho truck and drove back to Mantl, wharo they stopped to use tha roatrooms at a service station. Tha attendant could not locate the key to tho ladlas1 room, so thay both had to use tho men's. Tha proaocutria wont in first, while tha defendant waited; than the defendant scant -In and tha proaocutria uraltod several minutes for him. They than got into tha truck and proceadod north to Ephraim, whore in accordance with tha prosecutrix's request, defendant d rove har to the home of a cousin. She says sha than telephoned her parents about the attack. Meanwhile the defendant continued on about Mo business. Tho proaocutria reported the Incident to a man friend, who accompanied her to the sheriff, whore she gave the information upon which the dofandant eras arrested and charged with this crime. Our statute npoa which this charge la laid lo Sac. U. C. A. 1944i Soaual intercourse, , . . without consent of victim Circumstances. . Aa act of sexual Intercourse la without the con-aof tho victim . . . i (1) Whoa tha actor compels tha victim to submit or participate by force that overcomes such earnest resistance aa might raaaonahly be aapocted under tho circumstances; or (Z) The actor compels tho victim to submit or participate Utah Code Ana. 1941, makes rape a felony of the second 1. Sec. degree. Z. That we are obliged to accept that version of the evidence which supports the verdict, sae Stats v, VI lean, Zl Utah Zd 71, 49B P.Zd 347; State v. Ward, 10 Utah Zd 34, 347 P.Zd S44. Ao opposed to tho (ongoing, the defendant argues soma Inconsistencies and what ha considers unreaaonabla aspects of the prosecutrix's story, which should loan at least a reasonable doubt as to his guilt. The State's corract rejolndar to this Is that tha credibility of the witnesses was tho exclusive prerogative of the trial court; and that U is asilher tho duty nor tho privilogs of this court to disagras and substitute Us judgment thereon. We are in accord with the foregoing as a gsaeral proposition. However, tha particular problems pro sealed In this caso, wo do hava soma concern with the nature and persuasiveness of the ovldonco hero becauss of our conclusion statad below that tha trial court arrad In excluding proffered ovldonco. That being ao, if upon looking at tha whole evidence, It appears beyond a reasonable doubt that thara la ao substantial llkollhood that tho vardlct would have boon different in tha absanca of tho error. It should be disregarded, But Ike ravarsa preposition la also trust that If thara is a reasonable likelihood that In the abssnee of the error, there would have been a different result, the error should be regarded aa prejudicial. duo to Aa part of tbs dofandant' s cans, he called a young man, James P. Carlton, who had lived in Mt. Ploasant for soma years and had been a friend and school male of the prosecutrix. In laying a foundation for hia testimony tha foregoing facta were brought out and he responded affirmatively to the queationt that ha knew the reputation of foe proaocutria In tho locality aa to moral charactor. To the aaxt and critical question, aa to what that reputation waa, tho Stats objeclad on the ground that it waa Incempetant, Irrelevant, and Immaterial, Tha court sustained the objection; and that is the pivotal aspect of this appeal. Jr. , Duo to tha nature of this crlmo the problems of proof are fraught with delicacy and difficulty. It Is said that many such offansos go uareportad because tha victims, who have already undergone both physical and mental trauma, are faarful and unwilling to aubjact themselves to further tortura; sad that part of this la apprehension of amharraaamaat and humiliation from Inquiry into their personal llvas, which sometimes has the affact of putting them on trial las toad of tha assailant. This Is certainly an Important factor to consider; and the avil should be mlnimlsad to whatever extant that can be done consistent with tho processes of justice. But there ara countervailing considerations which also must be taken lota account. As It Is often correctly said: tkis accusation most always arises from aa Incident which occurs with only two partlas present.. It Is ana hi which U is easy to accusa, bud hard to dofaad agaiast. If tha accused Is convicted, the result can be not only a long prison term, with the resulting sarioua affects on a man's lifa, but the stigma always ramalas. Therefore In sarvlng the ends of justice and protecting tho public Interest it Is Important that tho utmost care bo exorcised to protect not only tho woman who claims to have boon outraged, but also tha man who is ao accuaad. nt It la not to bo quastlonad that the fact that a woman may ba of bad reputation, or that sha may ba known to ba immoral or avan completely dissoluta of character, does not give anyone license Is forcibly vlolata bar; nor that anyons 3. Sea Stats v.Ward, 10 Utah Zd 34, 347 P.Zd 444; State v. McCuna, 14 Utah 170, 41 P. (1491). Utah Cede Ana. 1943; State v. Lyman, 10 Utah Zd 41, 340 P.Zd 4. See Sec. 340; Chapman v, California, 304 U.S. 11. 4. See Note, Tho Victim In a Forcible Rape Caset A Feminist View, 1 1 Am. Crim. L. Rev. 334 (1973). No. 14174 -- Z- - the future." In other action, Representative marily because of political conHowe and eleven other Members of siderations, would completely upset Congress have written a letter, to the budgetary process the President chairhimself asked Congress to Rep. Jade Brooks, man of the House Government start," he continued. "The ConOperations Committee urging him gress has acted in a fiscally responto quickly adopt legislation extend- sible manner and set a budgetary ing the general revenue sharing ceiling of $375 million on this years program. "Without immediate ac- budget." tion, state and local governments "I, too, am for limiting any will be left in the dark as to how to increases in the budget, but the plan their budgets. Since hearings fact remains that there are other will begin soon, I think it is1 considerations, one of which, is that essential for Congress to act quick- the American people are going to ' ly and not delay until summer when be paying an extra $4 to $6 a week many local governments will have in federal income tax, he said. "The President knows that the already made drastic cuts in needed programs, Rep. Howe said. "I am very supportive of the revenue sharing idea and believe it can stand on its own merits. To claim that it is being used as a crutch by fiscally irresponsible governments is simply not true," he stated. The Congressman quot UTAH ooOae v. Congressman Allan T. Howe announced the passage of the Airport and Airways Development Act which would extend the direct grants given to state and local airport sponsors for airport improvement frorh the Airport and Airway Trust Fund. Included in the bill is the Congressman's amendment which would authorize the Secretary of Transportation to select eleven states to administer their own general aviation programs. "It evident to me during hearings before the Aviation Subcommittee of the House POubli Works and OF about 56 cents per month. While the commission did reduce the total amount requested by the company, the commission refused to require the companys oil operations to bear higher capital costs than its gas operations, a position urged by some protestants. In so refusing, the commission noted that "oil operations have, during the last several years, provided a substantial portion of the strength which has enabled the utility to obtain low cost debt capital and that "it is the oil operations that have brought stability to the utility in recent years and has resulted in lower costs of capital, both equity and debt." The commission, stating "that we are attempting to set rates for a future, not a historical, period," acknowledged authority of a recently enacted Utah law and adoptestited MFS' proposed test-yefind "We that the mony. It stated, future test period proposed by is the most Mountain Fuel realistic, fair and reasonable period for test year purposes ar ... does so would be guilty of rape. But that is not tho question of concern on this appeal. Tho critical issue hors is that of consent. The defendant has cited and relies on caass containing expressions of this court, at laaat In dicta. Indicating agreement with what ws think la the proper and majority view In ouch a situation: that t no ugh It Is not proper to permit Inquiry into spaclfic acts of prior misconduct of tho victim, wharo the critical issuo Is consent, and the circumstances are such that it reasonably appears that evidence concerning her moral character would hava sufficient probative value to outweigh any detrimental aapocto of admitting such testimony, it should be admitted. who In order to make clear tha basis of this decision and Its possible application. It Is no casaary and desirable to distinguish between two classes of cases In which there la a groat daal of diffarsaca la tha probative value of evidence concerning tha reputation for morality of a victim of a rape. Tha first, whore the evidence toads to show a totally uawaleoms intrusion, such as a forcible initial assault, or an abduction, or the gaining of entry Into a room by force, or by some form of trick or deception, couplod with a subduing by force or threats. In ouch situations wo agree that any probative value of such evldsaco Is not sufficient to outweigh tha negative factors la permitting such Inquiry and that therefore It should not ' be admitted. The second, relates to situations such as tho Instant one, whore the evidence shows font tha association ba twees tho partlas comae about In a aopiablo and paacaable manoar; and where the claim Is that thara was a transition Into violence; and whore there la thus a gsnuiaa and critical Issue as to content. It Is In such Instances that the probative value of the victim's raputatioa as to moral charactor Is sufficient to outweigh the negative factors and justify the admission of such evidence. The foregoing conclusion Is la accord with our Rules of Evidence. whoa a trait of a person's character la Rule 47 provides In parti relevant as tending to prove his conduct on a specified occasion, such trait " Rule 44 may bo proved In tho same manner as provided by Rule 44 provides for proof of such a trait by svideace of reputation. "... ... Whoa the various aspects of tha proffar of ovldonco under scrutiny hors are considered in tha light of what has been said herein, and of tha superseding and major objective: that of ascertaining the truth In thin controversy, we think its probative valuas outweigh any detrimental offsets such a ruling may have and that tha evidence should have boon admitted. It Is further to be observed that even though this was a trial to tha court, whan that Is dona. It should be upon all of the competent evidence proffered. Just Hie same aa In the cats of trial by a jury- - Tha arror In occluding this proffered evidence la such that wo cannot conclude with assurance that If it had been admitted thara may not have bean a different result by raising a reasonable doubt as to tbs Issua of tha prosecutrix's coneant, or her resistance, and the ovurcoming of It by threats or force. Therafora, it Is our judgment that tha conviction should be vacated and the case for a now trial. No coats awarded. IN THE SUPREME COURT OF THE STATE OF UTAH ooOoo -- Lynn D. Paul and Anita K. No. Paul, Plaintiffs and Respondents, 13940 FILED v. December Z4, 1974 MablaS. Kltt, 'm Allan E. Mecham, Clsrk Defendant and Appellant. HENRIOD. Chief Justice: Appeal from a specific performance judgment uadar a contract te purchase a lot. Affirmed, except as to award of attorney's fees. No coats awarded. Tha contract dated April 1, 197Z, subject oieihis suit, called for dawn and monthly payments, all tho latter of which timaly wara paid for two years, save for two: November and December, 1973, - which were paid respectively two and one months later in January, 1974. The March, 1974 payment was forwarded late, but within tho grace period af tha contract, and was addressed to tha correct streat number, but to "Bandy," a suburban town adjacent te Salt Lake City, but net to "Salt lake City," - and due to postal delay, was not received on lima by Mrs. Kltt, tha sailor, who promptly, aarly in April, wrote tho plaintiffs, aayiag, "I hereby notify you of the termination of yeur contract. " Thereupon plaintiffs and their counsel sent money orders te make up the deficiencies, (which Mra. Kltt refused te accept and returned) and offered to pay Mrs. Kill the ba lanes duo under tho contract In exchange for a deed. Such axchanga was never consummated, and this action followed. Defendant gave notice af default, but not uadar tha terms of the contract, that required sellar te give the buyers five days to remedy tha dafault. Furthermore, it would appear that save for a postal daisy, the buyers had sent payment within the grace period, and tha defendant, by accepting a couple of late payments before, under the authorltioe, could net have required strict performance without having given the buyers fair warning te that affact. There was no avidanca to indicate that tho parties by phono or personal contact, made any attempt te iron out what appears to have baen relatively miner problems. The trial court made Findings, decreed specific performance, and awardod $400 attorney's teas. Mra. Kltt questioned tha foe award. However, Paul testified he hired counsel and promised to pay $400 for the scrvfcee. Mrs. Kilt did net cross-sxamia- e. WE CONCUR; A. H. Eliott, Juatica Richard Henrlod, Chief Ws belie va and hold that in this equity caso, where both sides were participants to tho initiation of this litigation, and under tho other circumstances, each should have borne its own attoraoyd teas and the judgment ie ordered modified to vacate the award of attorney's fees. R. L. Tucked, Justice J. Justice, Maughan, Justice concurs In tha WE CONCUR: raeult. 4. See State v.Slms, 30 Utah Zd 347, 417 P.Zd 1314; State v. Smith, 90 Utah 4SZ, 4Z P.Zd 1110; State v. Scott, 44 Utah 443, 1SB P.I40; Stats v. McCuao, 14 Utah 170, 41 P. SIS (1I9S); J. Wlgmors, Evidence, Sec. 4Z (3d ed. 1940); 44 Am. Jur. Zd, Rape, Sacs. SZ-S- 3. -- 3- No. 14174 Justice A. H. Ellett, Justice J. Allan R. L. Tucketl, Justice Richard J. Maughan, Justice Crockett, Changes in Hopi Judicial System Recommended Mr. Hansen Tootsie. Chairman oi the Committee, pointed out to the members that this was a "good thing" and that he has seen it being used in Court proceedings elsewhere. "Time will be saved and we will be able to have accurate accounts of of Council. all our Court proceedings, added The Committee discussed and John Hennessy; Director of the felt that this was an essential need Criminal Justice Department. that is necessary for the Hopi Tribe "With verbatim records, rt 'iew of if the judicial system is to maintain cases can be made at the Ap ellate a verbatim record of Cour pro- level which will also provide many ceedings in order to assure fairness advantages to the tribe," says Mr. and accuracy on Trial hearings. Hennessy. The Law and Order Committee of the Hopi Tribe will recommend to the Hopi Tribal Council that they declare the Hopi Trial Court to become a Court of Record and the Hopi Appellate Court to become a Court of Review at the next session The Law aind Order Committee by a unanimous vote will present the resolution to Council that will ask for the establishment of the Hopi Court of Records, order of precedence for the authority to guide Tribal Courts in making decisions and to clarify the procedures of the Appellate Court of the Hopi Tribe. If the Tribal Council passes the resolution as recommended by the committee, the Hopi Tribe will be the only Indian Tribe in the United States to have a Court of Records .and a Court of Review. |