*1 appears that dence. It also lawfulness plaintiff’s res incarceration is now plaintiff
adjudicata.2 quite clear that he now have tendered the issues
could peti proceedings in his first
raises in these he is that decision.
tion and hound is af- court below
The decision
firmed. J., and C. JJ., concur.
HENRIOD
456 P.2d
STATE of
v. ASH, B.
Frederick
No. 11411.
Court Utah.
Dodge
397;
Bryant
Turner,
P.2d
v.
19 Utah 2d
Utah 2d
121;
Turner,
Turner,
P.2d
Brown
tel pursuit owner followed in hot over- took the defendant after three- about a mile chase. The defendant refused stop, although sounded light. siren and turned on the red *2 further effort cause stop, along the side of officer drove light in the speeding and a white turned face, avail. The defendant’s all to no rate driving high at a fendant continued speed. attempted to The officer then Ash, pro Frederick B. se. car, get ahead the defendant’s hut car, and defendant drove into the officer’s Gen., Romney, Atty. Salt Lake Vernon B. traveling together, the two became locked City, respondent. for plaintiff and highway, along 1600 feet until car, applied the officer brakes of his caus- Justice: ing the car the driving defendant was the com- charged The was defendant pit over. swerve into borrow and to turn grand larceny and mission of the crimes of resisting obstructing an driving In the car which was defendant pf duty. charges performance his The two underwear, shaving equipment, were trial, for and were the de- consolidated shells, two a new .22 of .22 caliber boxes He fendant convicted in both cases. was revolver, as caliber and a hat identified court appeals trial com- claims the by that past when he worn defendant drove particulars: prejudicial error mitted in two by up the officer the motel.
(a) refusing on a lesser and offense; (b) by according included March defendant was arrested The speedy trial. will examine May 21, defendant a We tried arraigned June assignments error reverse two that at all in The record shows through defendant, arraignment order. time counsel, requested be re case showed that defend- The evidence hearing, preliminary manded for a further shortly guest ant in motel was a His ready trial. not then for was on left midnight after March denied, request set driving belong- the motel automobile days 24, 1968,some 34 trial on any case for right ing to another deputy A mo- so do. sheriff and the later. murder,
The record does not show that the de gree spell the failure to out in de- any demand an earlier fendant made required tail the voluntary intentions for trial hold that there can date. cases manslaughter could reasonably complain grounds of a failure to be no fluence their decision. speedy arraignment trial until after If it would not be to instruct only and then if a demand made for an erroneously on a lesser offense when the Renzo, 21 trial See State v. earlier date. defendant convicted of the fense, it would likewise not be erroneous clear therein cited. thus seems fail to instruct on such lesser offense. speedy that the defendant was not denied a ' In the instant case the
trial.
defendant
of intending
deprive
As to his claim that the court erred
use
they might
charging
car, and
why
we cannot
41-1-109,
violating
required
also have been
to decide if he
ordinarily
U.C.A.1953,1 the cases hold that
tem
the owner
when
convicted of a
one is
porarily. The
upon
two
are
crimes
contrary intentions in the mind
de
*3
However,
fendant.
this does mean
lesser offense.2
one
necessarily
is
offense
included within
the
Gallegos,
acquittal
16 Utah
made
This court
State v.
of the other. An
prosecution
held:
of one is not a
bar to a
for the
other offense. The law
in Am.
is stated
Also,
held,
or-
generally
it is
under
Jur.2d,
Highway Traffic
Automobiles and
situations,
dinary factual
that where a
343, to be as follows:
§
jury
guilty
great-
of
a
finds
* * *
Furthermore,
in-
giving
an erroneous
er
of
since the of-
preju-
taking
a
using
on lesser offense is not
fense of
a
struction
motor ve-
jury
from
If the
were convinced
hicle without
dicial.
the consent of its owner is
beyond
the evidence
a reasonable doubt
distinct in its
from
elements
the offense
guilty
larceny,
acquittal
that defendants were
of
of
these
second
of one of
Rep. System,
2.
The section insofar as material
reads:
See cases
collected Nat.
“Any
vehicle,
Law,
1192(8) ;
who
a
drives
Criminal
also
own,
Prince,
State without the consent
the own
75 Utah
P.
temporarily
Brande,
er thereof and with intent
State
115 Utah
possession
to
owner
vehicle,
to
such
intent
steal
”
* * *
same is
of a misdemeanor.
prosecution
not bar to a
to take
is
a
into consideration
offenses
the situation dur-
* * *
ing a trial
the other.
when no one knows what view
jury may
take of the evidence. It seems
case the defendant
In this
depends upon
to me that this
what
evi-
have
by a failure to
prejudiced
have been
particular
dence
in the
case and what
jury
whether his intent was
consider
findings reasonably might be made there-
deprive the owner of
use of his
to
from.
clearly
told
temporarily because the
guilty if
jury
to find the defendant
invariably accepted
rule
both
beyond
reasonable
they
a
in-
failed
sides to
lawsuit are entitled
deprive the
jury
that he
structions
respec-
doubt
on their
the car.
the use of
tive
theories of
case. There
will
conflict,
situations where the evidence is in
proceedings
being
error in the
There
no
depending
rtpon the
the evi-
view of
below,
of the
judgment and sentence
dence
jury
adopt,
will
the accused could
trial court are affirmed.
be found
lesser
prose-
offense. Neither the court nor the
HEN-
TUCKETT and
cution should be able
force
him into
RIOD, JJ., concur.
position
giving
the all or
choice;
nothing
although he
make
(dissenting
Chief Justice
such a choice if he so desires. See State
part).
Mitchell,
P.2d 618.
in this case But
agree
justifies
that under
facts
if the
I
evidence so
otherwise,
to the de-
there was no error
chooses
be entitled
However,
impelled
note
feel
fendant.
I
an accurate
on the
instruction
lesser
generali-
adopt
agree
guide
unable
with
that I am
fense to
in case
bring
con-
ty
an accused has been
that wherever
a view of
evidence which
Hyams,
no
conviction,
he has
about that
State v.
victed
because there
have Utah
said understanding the lesser
given a correct rendering alternative of so. verdict, not have done
such a think I do not foregoing reasons
For that in properly all correctly instruct on a lesser
failure harmless because is rendered guilty of
offense.
STATE MECHAM, W.
Glen
No. of Utah. Court
July 2, 1969.