*1 34 actually wanting,
Legal capacity, can- supplied estoppel, be nor can
not pais can- estopped in when he
person be by contract. himself
not bind action to be
By refusing allow say
maintained, mean I do not getting precluded from
plaintiff be company and the insurance against
redress That proceeding. agent in
its some us. is not before af- be court should
I think its party bear should and that each
firmed costs.
own the dissent-
HENRIOD, J., concurs J.,
ing opinion P.2d Plaintiff
The STATE
v. FAIR, Defendant Tommy Otis Bill T. Beasley, Joseph P. Peters, Mc- Lauren N. Appellant, FAIR, Gen., City, Attys. Lake Carthy, Salt Turner and State. W. for John TURNER, Warden, W. John Respondent. Prison, Defendant O'Connell, Barney, D. Salt Jay V. John Fair. Lake 11121, 11195. Nos. Supreme Court of Utah.
July judg- jury’s verdict and from thereon, uttering a
ment entered Narcotic the Uniform prescription oz Act,1 Drug denying accused the benefit being accountable habeas writ of filed only for the lesser of the two pending appeal, which had to do with That case seems to controlling here. problem, the same and which we ordered The distinctions two statutes here *2 regular appeal. consolidated the with convincing seem be less sug- than those corpus is gested on for habeas in case, the Shondel in this —and 11195, (Case affirmed court), No. this and respect attention legisla- the directed to regular appeal the (Case case on the No. here, tion in that case and that all of 11121, court), this remanded resen- compels which consistently us this send tencing in provisions accordance with the of case back resentencing in accordance 1965, 117, 2, (L.Utah 58-17-14.13 Ch. Sec. appellant’s with plea that “the sentence 6, Supp.1967, Replacement —see U. Vol. should be reduced ato maximum of six C.A.1953),2 having with to do misdemeanor months.”
provisions thereof. Only point appeal other on was that of in jeopardy. twice We have examined the At the time this and brief case was filed record point conclude that this on ed court, in this the of case Shon peal is without merit. del, 343, (April, 22 Utah 2d decided, 1969) had not been became CROCKETT, J.,C. and CALLISTER argument of oral before court TUCKETT, JJ., concur. 11, on 1969. That case and this one legislative have to shifting do with the in (concurring part, Justice appurtenant sands to the land of narcotics dissenting part). drug case control. The Shondel said by an amendment the legislature making affirming an I concur the trial court in subject act to two fiats one of proceeding the habeas but dissent penalize part which would an accused as a mis- that of decision the which would demeanant, felon, gave remand the case a different sentence. 1. 58-13a-39, Code Annotated Title of this State or the laws under laws (L.Utah 2), regulations 94, pro Oh. § lawful United States or viding designated “No person shall make or has as un- thereunder, been any prescription” except supervision under safe use * * * for a which made a narcotic, administer practitioner licensed to drugs by felony 58-13a - 44 of same act. such medicines: prescribe or or “Obtaining drug forgery (2) by fraud, by or medicine or alteration forgery representation or false prohibited. record, or prescription, order, report, * * * (6) person shall or or possess, —No obtain or label, drug attempt any possess, obtain or or order, false altered prescription, or medicine intended for use man which or record.” report original He then properly
The defendant was Information. was sen- tenced for that two counts: crime. with COUNT sends the case back for sentencing statute which has no Fair, at That the said relationship to the crime of which this de- aforesaid, place time did obtain guilty. compels fendant was found It deceit, Dilaudid, fraud, mis- (1), impose a sentence for the representation, conceal- (2), by the or ignored by count which at- the district fact, by the (3), ment of material use torney. address, name and to-wit: false South; Meldo, Frank 906 West 9th The reasoning of the main seems to be same as it would should the de- II COUNT larceny (a be charged petit fendant Fair, at That the said misdemeanor) the second aforesaid, place time and did utter a degree (a felony). Burglary in the second forged prescription. entrance, forth, degree is into a and so building with intent to steal. If the *3 committing He bound over attorney try for elected to the defendant charges, two magistrate on the intent to steal and not entrance with only charged attorney him require the stealing, actual we should not of the Information with latter two when trial court sentence defendant to charges. simply misdemeanor term convicted Count I obtaining The personal may private have because we misdemeanor, only in the though stealing, actual even pre- of a false while intent entering petit, than is worse felony. I it is no con- scription think is a Likewise, money obtaining of steal. that there is a difference cérn of ours fifty pretenses, amount is when the it a more serious Whether less, be a misdemeanor. would dollars or forged prescrip- false or ten dollars a check forgery of drug by false name than to obtain a tion opin- reasoning the main felony. etc., forged prescription, to sentence compel the would ion determination, is a matter fifty check for a sum forged one who made. and that has been determination money no who received less and dollars or if he had term because to the misdemeanor on the The defendant was convicted he forging, money without received the he was crime with which Q7 only could have been sentenced to the coun- jail.
ty
State v. Shondel referred point here, is not in and even if were, my dissent therein shows the fal-
lacy of that case. affirm of con-
viction and imposed allow the sentence
to stand.
The STATE of
Raymond STROHM, Defendant and No. 11166. Bown, David M. Salt Lake City,
Supreme Court Utah. pellant. Atty. Gen., Don R.
Strong, Salt Lake respondent. *4 larceny from a con- viction. Reversed and remanded for new trial. appeared
After voir dire there question was a about Miranda at confes-