*1
highways
of ex-
guilty
his father’s a child to run that distance. would take 1971; cal- using that time limit the witness Then point of im- culated the distance from the when
pact the defendant would have been from behind ve-
the child came his father’s then testified that a sober man
hicle. He stop
would not have been able to
impact. There was no evidence that speed racing or that was
child ran his objec-
that assumed the witness. The testimony plaintiff
tions of to this were testimony
overruled the court. This plant ju-
would tend the mind of the
rors fact that out” child “darted except
when no one defendant saw
child, and he saw when it five was away.
feet There was no evidence anywhere.
ran The failure to sustain the Crockett, J., concurred opin- and filed objection was error. ion. be told cannot from the record wheth- thought jury plaintiff negli- er the was
gent leaving his son strapped in the front
seat he ran while across to see the road
if he could of assistance or whether
thought negligent. the defendant
To itme seems that a new trial should
given, and would so order it with costs appellant.
awarded to the No,
MR. STRATFORD Your Honor.-' a, submit to this this is age a young man of this I submit it is a rather horrendous *2 THE I think it a terrific COURT: is Stead, City, Michael C. Lake for de- Salt my per- MR. And STRATFORD: in fendant-appellant. judgment sonal I think it is more severe Gen., Romney, Atty. Vernon Lauren B. actually than what warrants. But I Beasley, Gen., N. Atty. Chief Grant Asst. do on know sale cases that the statute Kesler, Atty. Gen., City, Asst. Salt Lake gives us that leeway. My much office plaintiff-respondent. always has position sale on cases that require does ELLETT, incarceration. Justice: And recognize that it is a horrendous The appeals defendant from a conviction penalty. But I don’t any know other selling marijuana of and from the sentence way to control the traffic. imposed upon pur- him. The sentence was suant to Section 58-13a-44(4), U.C.A.1953 [*] [*] [*] [*] [*] [*] be, THE But COURT: it seems to (1969 Pocket Supplement), which is as fol- Gentlemen, years that not less than five lows isters or into this port, import administer, import Every person into this state or gives away, state, sells, or into this give who away, transports, or offers to trans- state, sell, furnishes, admin- or transport attempts furnish, imports any to punishment. until not a and ‡ severe up to # less than three life, and Utah State and unreasonable ijc no probation # Penitentiary, years [*] penalty or has been parole [*] and is marijuana punished by imprison- shall be your posi- THE COURT: Yes. Is ment in the prison state Attorney, District MR. from five on, authority Court has place no to him to eligible shall not be re- life probation parole ? lease completion sentence on of or on MR. posi- other basis until he That is the STRATFORD: has taken, served not tion our years. less than three office has Honor. Your [Emphasis added.] [*] í|í [*] ijs ‡ attorney That prosecuting the court and THE wants to COURT: Court prison say you unpleasant a task mandatory believed term is to that this is an year boy proceedings: evident from the record for a nineteen old for this perform duty 44(4), supra, to which it is applies since that section * obligation perform. to to now under cases where there a has been commit- * * * * * * prison. ment to We need not concern with the ourselves you. And THE God bless COURT: question statutory such lan- whether you. something for I could do wish guage Pardons, could bind the Board of thing had painful I have is most which Constitution of this State you. Judge. Thank do in ten given power forfeitures, to remit fines and U.C.A.1953, grants commute punishments, grant pardons suspend the
trial courts the discretion convictions, after not etc.3 This case does imposition or the of a sentence execution require time, such a determination at this compati- appears criminal cases when since the Board of Pardons is not involved However, in ble with the interest. herein, powers brought have their been that the court failed this case it is obvious into appeal. on this the word- to consider because of The other appeal matters raised on A ing of the statute first set out above. are without We order commit- merit. reading of that statute careful ment to be recalled and remand this case take legislature intended to show that the *3 to the trial court with deter- directions to grant pro- the courts the discretion public mine whether the interest would best however, appear, that once bation. by placing pro- the defendant on interest the court decides the by bation or and, committing prison, him to requires prison, then the commitment to after exercising his discretion in that mat- legislative requires incarceration for intent ter, appropriate make the order and at least three can be judgment. granted or sentence terminated. CALLISTER, J.,C. and TUCKETT judge hold that a has in Some courts HENRIOD, JJ., concur. power grant herent probation,1 but we CROCKETT, (concurring). need not Justice decide whether trial courts concur, power Utah have that make this inherent for rea but comment: 2 grants right. opinion paragraph son that (in the statute them the statement in the power part following quotations record) on the to con from the of courts ques- sider a defendant for was not af-' to the effect that under the statute in by fected upon the enactment judge of Section 58-13a- after the trial com- decides Am..Tur.2d, VII, 1. 21 Criminal Law § 553. Art. 12. § 2. Section U.C.A.1953. “ * * * prison, leg-
mitment to then the intent requires
islative incarceration at possibly three might
least understood, may seized by
urged counsel in other as an cases, af- by
firmative declaration court “the
legislative requires intent incarceration years.”
at least clearly three- It should be
understood that that is not decided my view,
in this case. It is which I have impression is shared other members court, provision
of the that such stat- impinges upon
ute and is subordinate to the
prerogative of Board of Pardons con- VII,
ferred Article Utah However, pointed
Constitution. out in opinion, neither Board of Pardons action threatened case, nothing
is involved in this so is actu-
ally respect decided with thereto. P.2d 238
The STATE of Plaintiff and BOONE, Lee
Gale Defendant and