State in Interest of Besendorfer
568 P.2d 742
Utah
1977
Check Treatment

*1 particularly And this is true when weight.8 interpretation an administrative

such persisted long for a time with- has

practice change.9 any legislative correction or

out have observed other fields law, abrupt be any is to be done policy, should

about-face county legislature,10 rather than acting the self-interest of

officials

county.

On the of our discussion here basis plaintiff

in it our conclusion that as a is enti

City, subdivision ques to the benefit of the statute in

tled

tion, exempting payment of fees to County Clerk Sheriff. No costs awarded.

Affirmed. J., WIL- C. MAUGHAN and

KINS, JJ, BALDWIN, F. and ERNEST Judge,

Jr., District

HALL, J., participate does not herein. Utah in the

The STATE of Interest (02- BESENDORFER, Jr., N.

William

07-57), eighteen years under

age.

No. 14595.

Supreme Court of Utah. 9,

Aug. Esplín,

Gordon F. Lake City, Salt appellant. Romney, Atty. Gen.,

Vernon B. William Barrett, Gen., Atty. Asst. W. Lake Salt City, respondent. Anderson, Copper Corp. City, 244,

8. Kennecott 10.Davis v. Provo 1 Utah 2d Highway Dept., 2d Utah Hurst v. 16 Utah 2d 397 P.2d 71. Thompson, Hawaii, 9. Keller Hoelsken, (1975); Schlagel v. 162 Colo. *2 MAUGHAN, gesture Justice: obscene at the passengers in the car; of the one passengers reciprocated. appeals from an order of Defendant The Granite students proceeded to kick and Court, wherein was found he vehicle; rock Bill was not identified provided the court’s participants. of the Kory alighted as one 55-10-77(1), 1965, on the enacted Sec. his vehicle and from exclaimed: had violated Sec. ground defendant the_you “What doing?” as enacted amended 103(l)(a), part, and remand for further We reverse Kory; Bill threw a snowball tes- Kory at are All references statutory proceedings. him it struck tified face. At that to U.C.A.1953. moment, Kory was situated the driver’s alleging filed that defend- Petition the vehicle standing side of and Bill was January 14, 1975, ant, in viola- on or about passenger’s side. The proceeded two 76-5-103(l)(a), assaulted and tion of See. of the automobile, rear fight and a injury to intentionally caused serious Kory angry admitted he was after ensued. Jackson. KoryW. kicked, car had been his and he had been hit the snowball. Nevertheless, tes- Kory hearing was held March had his he hips tified hands on his as he conclusion, state the court ruled the At its Bill. encountered Bill struck and kicked allegations petition of the proved him; specifically Bill kicked him three or true, The beyond a reasonable doubt. mostly times upper legs four on the and assaulted and defendant had court found him several times in the face struck intentionally caused serious up ground The two ended Jackson; his fist. a result of the KoryW. distance from the some vehicle. testi- assault, injuries to Kory Jackson sustained fight seconds, lasted fied and he was or- in the amount of teeth $546.00. he had never Bill. $546.00, adamant struck in restitu- defendant assessed dered tion, Jackson. Bill testified he was six feet tall and have this defendant seeks to appeal, pounds; he weighed claimed that at findings and foregoing aside the court set their encounter parties both urges the Specifically, defendant order. fighting. He commenced testified that at prove beyond a reasonable state did fight, conclusion he assisted had committed an doubt defendant he also sustained to his feet. assault. fight. bruises following a alleged crime occurred concerning the extent game basketball at Granite school high response was his victim, Kory, hereinafter High School. as to whether he had received question Highland High School. a student consequence medical attention three of his company was in stated: fight. He letter friends, Highland were dressed in all Yes, repaired capped. I had — on his jackets. Kory had been a half-back go doctor’s for the office team; height is five football school’s and that’s about it. inches, he weighed 185 to feet ten contends the record does not Defendant Follow- time the incident. pounds at the reveal game, Kory the conclusion bodily injury” necessary element “serious drove his car from friends his three agree. aggravated With this lot to a restaurant parking school drive-in next to the school. situated charged with a Defendant violation provides: of Sec. According Kory, park he could before stall, in a car was surrounded commits his vehicle The defend- defined in to 20 Granite students. he commits assault as Bill, made an identified as ant hereinafter causes serious bod- the athletes attending Highland. Clearly,

ily possessed a strong animosity towards of the car. There was testi- 76^5-102 mony attack, as to Bill’s vigorous (1)Assault is: witnesses particular concern over *3 attempt, with unlawful force or An kicking. However, Kory the testified the violence, bodily injury to to do kicking was directed towards legs. or There was not such a disparity clear in size threat, (b) a of accompanied show age as to indicate that the attack with violence, bodily or force do immediate the fists was with an intent to do serious injury to another. bodily injury. 76-1-601, provides: precise nature and extent of the (8) injury” means “Bodily physical injuries teeth is not revealed in illness, any physi- impairment of pain, the record. the date of disposition of cal condition. case, entry the there a minute bodily injury” means bodi- “Serious states: creates ly that or causes serious Court met in chambers with counsel disfigurement, protracted loss permanent prior entering courtroom. impairment any of the function of Dr. a called Hall this organ or creates sub- date. Dr. member Hall informed the Court as of death. to what den- stantial risk tal work done and the total cost To a conviction under involved. a felony which is third degree, the state must prove ac [******] serious in cused caused Order: Defendant assessed res- $546.00 viz., specific he had a jury, intent titution for Jackson . victim,1 bodily injury serious inflict The record merely indicates sus- fact, injuries were, and such tained a tooth capped. the assault. was no evidence advanced show 76-2-103, provides: ordered, restitution, amount had a engages in conduct: reasonable relationship the capping of (1) Intentionally . . re- an Such item must proved, . . to a of con- spect result generally. reason, For that duct, objective is his when it conscious or we remand for an evidentiary hearing to desire to . cause the result. proper determine amount to be ordered in restitution. is not evidence record clearly persuasive defendant, Reviewing evidence in the light most during 30 confrontation favorable to proof shows no affray, had specific intent created a substantial death; bodily injury. cause serious The low risk he sustained serious any specific findings disfigurement, er court did not make permanent or that he had a regard specific protracted of fact Bill’s intent or serious impairment loss or of a Kory’s injuries. the nature of testified function of organs. members or Thus, his dislike of the as to there was no sustained they vehicle because wearing High were bodily injury, serious and the court’s find- jackets. opin land letter an defendant an committed as- highly regarding ion which unfavorable sault cannot sustained.2 Peck, Utah, (1975); Mayo, Or.App. 582, v. State 1084 State v. Howell, Utah, Dillon, (1973); Or.App. State State The result would finding be the same under Sec- sustain There is mentioned tion 77 above if forth in Sec. as set an simple assault. would included offense been lesser 102(l)(a), a within the have been whether he had defendant committed simple assault an assault sustained. which caused must be injury.1 am un- disturbing see able to JJ., HALL, WILKINS the Juvenile record this matter. (dissenting). Justice Chief remanding to the of the case for the ap- court. The the trial affirm a trial on the purpose cost charged with a crime. was not pellant I do repair, think trial on that *4 to be within adjudged In required. place, is the first no matter having by reason appeal regard; in complaint is intentionally caused assaulted place, the doctor would and in.the another. testify the same as he in- undoubtedly U.C.A.1953, 10—105, Replace- Section 55— judge while counsel were with formed 6A reads: Volume ment time of the call. judge shall Proceedings in children’s cases is another reason which leads me proceedings, civil regarded as be further evidence need be to believe equitable powers. exercising 55-10-100(7), U.C.A.1953, taken. Section by a court adjudication juvenile (2) An Replacement in 6A Volume as amended un- within a child is shall not be deemed section der (7) The court may order that child crime, cases except in conviction required repair replace violations; adju- no such involving traffic make restitution for otherwise any civil operate impose shall dication act, by wrongful loss disquali- the child nor to upon disabilities mili- any civil service or the child fy appears the amount of restitution appointment. tary service the cost the Court was ordered juvenile the record (3) Neither However, the the tooth. total repairing juve- given in the any evidence nor court greatly in excess done harm as evidence shall admissible nile court pain and suffer- dental bill—there proceedings the child in against the victim endured as well court, exception with the any other repaired go through life with a involving traffic violations. [Em- cases broken phasis added.] simply affirm the appellant is not convicted rendered the Juvenile Court. judgment crime of CROCKETT, J., dissenting concurs Ju- opinion. The prevailing ELLETT, C. J. opinion comes found that the venile 77 of the provisions of Section amended, Act of said child assault- intentionally caused serious ed Kory Jackson. 238; Annotation Blackstone Com. 205. a member S.W. tooth is A front 969g. breaking (a felony). of a front mayhem breaking Keith A.L.R. it Tex.Cr.App. in 16 321; than a State, of a more serious offense consists 232 S.W. State, Tex.App. simple High A.L.R.