*1 (xiii) paragraph here- provided in sions as [Emphasis
of. added.] Utah, STATE of Plaintiff and I.,1 Brown et a Respondent, In Reese Howell Co. v. Richards,2 approval with in Parrish v. cited v. question of addressed itself to the this court CAUBLE, Richard Defendant ambiguous terminology in documents and Appellant. stated: have, however, held, firmly are We No. 14433. doctrine, committed to the that we will Supreme Court of Utah. aid, rule, every or canon have recourse to ascertain the intention of construction April it parties ... should be the courts, as, doubt, no it is their aim of
duty, to ascertain and declare the inten- that, parties, since and noth-
tion of contract, else, constitutes their and it
ing enforce, duty courts to not to
make, contracts.
A restrictive covenant cannot be aside in the absence of clear and con
set
vincing evidence.3 And where covenants duly executed and recorded the law
gives party right an interested to en Therefore, paragraph
force their terms. to be mere appears surplusage
xiv and not a
necessary part of the restrictive covenants. fact, appear nullity it would to be a since prevent being a suit from
it could not filed aggrieved person to enforce a valid right
covenant.4 Such is a constitutional I, by Art. 11 which reads in
afforded Sec.
part as follows: open, per- every
All courts shall
son, injury for an done to him in his
person, remedy by . . . shall have law, per-
due course of . . and no prosecuting
son shall be barred from
defending any before tribunal [of]
State, counsel, any himself or civil which he party.
cause to is a
Reversed and remanded for trial. Costs plaintiff.
ELLETT, J., CROCKETT, C. MAU- WILKINS, JJ.,
GHAN and
concur.
Co.,
(1916).
Employees
4.Barnhart
v.
Service
Ins.
1. 48 Utah
Civil
(1965).
16 Utah 2d
398 P.2d
2d
Appellant claims appeal: (1) improper Venue was Lake but crime occurred County, trial held Legal Esplin, D. of Utah Michael Association, Provo, prove defend- The state failed to all the for Defenders offense, appellant. elements ant and provi- which contravenes a constitutional prejudi- committed void; here, by admitting wording evidence but of Arti- cial error sion is VIII, conviction. for which there was no implies legisla- crimes Section 5 that the cle given power pass ture has been laws appellant’s argument The thrust of of, application the waiver or the regarding at the Utah improper is directed venue is of, Thus, privilege of venue. the exist- which he contends is unconstitu- statute *3 ing statute7 is found be constitutional. it contradicts the Utah Con- because tional portions are as follows: of Article pertinent part stitution.2 (1) Venue of Criminal actions VIII, 5 of Utah Constitution Section actions.— county be tried in the or district shall states: alleged the offense is where to have been civil and criminal business . All determining proper In committed. arising any county, must be tried in trial, place following provisions of county, change venue unless of be such apply: shall taken, may provided in such cases as be [Emphasis law. by added.] Barker3 the ex rel. Shields v. In State (b) constituting When conduct ele- by “provided by law” or words “established ments of an offense or results that consti- to mean the laws were construed
law” elements, tute the conduct or whether by law-making power of this passed itself, is, constituting result elements The definition thus would seem to state. unlawful, shall occur in two or more imply grants that the Constitution to the counties, of may trial the offense be held power pass such laws legislature any of the counties concerned. change venue and the relating to of proper. thereof as it deems application (g) When an offense is committed Ever since White v. Rio Grande readily within this state and it cannot be Ry. Co.4 was decided in Western county in which determined or district consistently interpreted has Article Court occurred, following the offense provi- VIII, jurisdiction 5 to mean that Section applicable: shall be sions by conferred nor restricted that sec neither merely that the district court has tion but
common-law original VIII, stitution authorized by the Constitution of Utah is the The White5 case prohibit Section jurisdiction as merely by doctrine of venue and intends change 7 of the Constitution of Utah. law. The pointed recognizes the of venue defined out right guaranteed except in Article right to a the Con existing when control over the made be trial (iii) tried in [*] are All A before person objections waived [*] any county trial. who [*] property by of a defendant unless commits theft [Emphasis in which he exerts improper place [*] affected. [*] added.] [*] may of us, the first provided and a fair trial as in Arti In the matter before speedy place made I, points objection 12. White out that the was not cle Section prosecution had rested its companion right, right to be tried in the until after the case; therefore, occurred, appellant cannot be heard county in which the crime is a objection appeal because privilege which can be waived to raise personal be clearly states it must be made failing proper objection.6 to make a This statute consequences grave Due to the long recognized that a statute fore trial. has Court 76-1-202, White, (1975 Supp.). supra. Pocket 5. 1. U.C.A. VIII,
2. Article
Section
of Utah.
Constitution
White,
supra
p.
at
71 P.
6.
593.
3. 50 Utah
Supp.).
U.C.A. 1953
71 P.
at the time the
possession
the check into his
however, we
proceeding,
any
criminal
County, or when
was made in Utah
sale
the record to
compelled to examine
feel
personal
into his
the check
deposited
appellant has
whether or not
determine
Tracy-Collins Bank
Salt Lake
account at
appli-
the strict
unjustly prejudiced
been
he was au-
County. Appellant claims that
rule.
procedural
of a
cation
accept money
on behalf of West-
thorized
trial,
place
determining
proper
and, therefore, no crime could
ern Leisure
involved,
or more counties
where two
property
until the
was actu-
have occurred
may
that trial
provides
venue statute
to his own use at the
ally converted
in which the
any of the counties
held in
support
The record does not
Lake bank.
the elements of the of-
constitutes
conduct
The voir dire examination
this contention.
elements of theft un-
charged. fense
Giles,
comptroller
Mr.
for Western
appellant (1)
Utah Code are that
der the
Blazon,
following:
Leisure
discloses
or exercised unauthorized control
obtained
Q.
you
Who did
delegate
handle
property, and
that he had
another’s
over
*4
money?
deprive
prop-
the owner of the
to
purpose
a
I
(Peterson)
A. Norma
was the one
erty.8
delegated
receipts
to make the
and actu-
deprive”
to
is defined as
“Purpose
deposits.
make
ally
The record dis
requiring consciousintent.9
Q.
authority
you delegate
did
to
What
admission,
appellant, by his own
closes that
Mr. Cauble?
keep
the conscious intent to
the sale
formed
delegated
authority
sign
no
to
A.
I
he
still in
for himself while
was
proceeds
deposits
or make
in behalf of the
checks
before the sale of the
County
Utah
company.
completed.
tes
trailers
clarify
may
There
Let me
that.
have
timony given by appellant in his own behalf
an occasion when I
been
made out a
is as follows:
deposit and because Mr. Cauble was tak-
Now,
Q.
you
when did
first
bank,
check
ing
going by
a
a
may
your
in
keep
the idea
mind to
this
get
deposit
a
made
in behalf of the
have
you got
check that
from Mr.
$9200
I
Company. But would have endorsed
Wheelwright?
deposit
be-
check and made out
day
I think it was the
before I
A.
Mr. Cauble wasn’t
cause
authorized to
actually picked
up.
it
checks or sign checks.
endorse
Q. Sir,
you
anybody
ever
did
tell
testimony
by
was corroborated
This
Norma
Company specifically about
Peterson,
secretary
for Western Lei-
Wheelwright transaction?
sure, who further stated:
Wheelwright
transac-
A. About
Q.
(Cauble’s)
observed
ac-
youAs
his
tion, no.
what,
anything,
if
did he do with
tivities
testimony
money
alone is conclusive that the
end of the business?
deprive
intent
Western Leisure of
None, whatsoever,
A.
other than he
consciously
proceeds
the sale was
formed
pick up a check when he would
would
appellant
proper-
before he received the
by
occasionally
bring
trailer
deliver a
it
County.
while he was still in Utah
ty and
back to me or to Mr. Giles.
by
given
impetus
This conclusion is
further
appears
foregoing testimony
It
from the
admission that he
appellant’s
did not dis-
appellant’s
authority
was limited
a sale had been made at
close the fact that
accepting payments from customers and
all.
over to
immediately turning
proceeds
question arises as to
The most difficult
Mrs. Peterson at her office Utah
over
appellant’s
money
receipt
deposit.
control
the few occa-
when
for
On
deposits
when the appellant
unauthorized —when he received sions
did make
became
(1975
Supp.).
76-6--401,
Supp.).
Pocket
U.C.A.
U.C.A. 1953
by finding
diced
objec-
that he waived
company,
response
for the
it was in
his
tion to venue under the statute.
express request by the company. But the
deposits
appellant
were not turned over to
Appellant’s
point
second
of error
until after the checks had been properly
that all the elements of the offense were
deposit
and the
slips prepared by
endorsed
is
proved
entirely without
not
merit. The
either Mrs. Peterson or Mr.
At
Giles.
no only
proved
elements needed to be
appellant
time did
authority
have the
deprive
the statute
the intent
deposit
cheeks or to
endorse
them under his
of his property,
another
the obtain
own initiative.
ing unauthorized control over
property.
foregoing
discussion
dispositive
It
seems clear
that when appellant
Furthermore,
claim.
it
point
should be
the intent in
formed
to keep
out
venue is not
ed
an element of the
sale;
proceeds
Wheelwright
from the
and need
proved merely by
offense
when he failed to deliver the check to Mrs.
preponderance of the evidence.12
Peterson; and, further, when he failed to
notify
company
that a sale had even
The third error
appellant
claimed
made, that
is that the trial
been
the elements of the
offense
erred when it admit
ted evidence of prior
well
ap
were
established
his conduct at that
crimes for which
pellant
convicted,
had not
time,
been
point
thereby
re
and therefore meet the statu-
sulting
prejudice
appellant’s
tory requirement.
basic
This view has been
rights. Rule 55 of the Utah Rules of Evi
adopted
jurisdictions
in other
as well.10
part:
dence states in
Appellant has contended that the unlaw-
*5
. evidence
a person
that
com-
ful conduct did not occur until the bank in
mitted
crime or civil wrong
speci-
on a
City
Lake
accepted
the check from
occasion,
fied
prove
inadmissible to
Banking
him.
practices can be used as one
that
committed another
measure to determine when and where the
civil wrong
crime or
specified
another
committed,
technically
crime was
and we
but,
occasion
.
. such evidence is
authority
support
find
the view that
admissible when relevant
prove
some
since a bank does not recognize a transac-
other material fact including absence of
complete
tion as
payment
until final
from
accident, motive,
mistake or
opportunity,
originating
cleared,
bank is
an offense
intent, preparation, plan, knowledge or
begun
of embezzlement is
in the county
identity.
where the check is
completed
drawn and
Schieving13
In
v.
State
evidence was admit-
county
paid.11
where it is ultimately
shortages
ted to show cash
in the Traffic
case,
the instant
question origi-
check in
Violations Bureau where defendant worked
nated in Utah
ultimately
and was
proved
but which were not
to have been
paid there.
caused
defendant. Consistent with Rule
Regardless of the
applied
above,
standard
here-
55
we said:
in, the conduct of appellant which consti-
general
. The
rule is that in a
tutes the elements of the offense is found
case
criminal
evidence which shows or
to have occurred to a
degree
substantial
to show
tends
had
defendant
County.
Utah
We find that venue was
committed another crime in
addition
properly laid in
ap-
and that
for which
he is on trial is inadmissi-
therefore,
pellant’s rights,
However,
preju-
were not
exception
ble.
to the rule is
1363,
Dykes,
Mitchell,
70, 73,
10. State v.
261 Iowa
158 N.W.2d
v.
State
3 Utah 2d
278 P.2d
12.
(1968);
State,
154
Williams v.
intent; or absence of mistake PANY, INC., Appellant, Plaintiff plan common scheme or to show a v. similar crimes embracing commission ASSOCIATION, MYTON WATER proof that the each other so related Respondent. Defendant for which the crime to establish tends one is on trial. the defendant No. on a Here, defense was based appellant’s Supreme Court of Utah. intent, therefore, was his right and
claim of April proceeds of other sales Evidence crucial. was allowed by appellant
having been taken testimony, his but estab- impeach
not to to show a plan or scheme and a common
lish could assess the jury such that
motive as his appellant’s testimony
honesty money belonged to him. Ad- that the
belief proper thefts
mission Evidence, and the Utah Rules
Rule committed no error. No costs are judgment is affirmed.
awarded. HALL,
CROCKETT, MAUGHAN
JJ., concur.
WILKINS, (concurring with com- Justice
ment): majority opinion, add-
I concur with *6 appel- comments about the
ing these few relating the third error claim of
lant’s crimes. admission of evidence of repeatedly at trial that he
Appellant stated from Western taken no other funds
had except
Leisure as an “offset” the check for “Wheelwright as the denominated
$9262 This evidence was received
transaction.” objection.1 (After objection, which
without timely, appellant not admitted to the Therefore, funds.)
“offsetting” of other in the to the other reasons stated
addition denying validity
majority opinion for error, note this matter. claim of I applying Evidence, generally perceive reason for not no valid 1. Rule Utah Rules general timely objection requires this case. and I rule in evidence