*1 pursuant to the reis- property defendant’s garnished account checking joint in a funds to made a motion Defendant Writ of sued Writ. a reissued by plaintiff, sale thereunder. are Writ and the Costs the valid. Affirmed. invalidate Execution ruled that the motion and The Court denied to plaintiff. awarded not Writ did violate Utah the reissued 31, 1977, obtained a May plaintiff On 69(c) (d). and of Civil Procedure Rules defendants against both named judgment $77,911 subsequently in and Court noted its memoran- in the amount The District 1977, checking 18, of De- joint the account that: caused dum decision on December wife, Norris, Cheryl and Norris his fendant as procedure . interlineation the thereafter, Immediately garnished. to be in Lake the Salt by deputies exercised the action, Norris, party not to this Cheryl in interest of County Office is the Clerk’s the claiming that one-half of a motion filed the execution attorneys requesting most checking prop- account was funds procedure followed saves of writs and her. seeking its to erty and release issuing additional attorneys these well the additional charge of $2.50 on denied the motion The District Court and has been 103, charge preparation that Utah grounds Section 75-6— in the Clerk’s Office practice in followed Annotated, 1953, as amended Code convenience law- for the De- this District the account. garnishment of allowed period of time. considerable appealed yers two Norris fendant Elwood consolidated, and raised cases, which under circumstances may, A clerk discussed infra. two matters Writ, a second reis- issuance of mandate his acknowledging his byWrit sue the first its question, Plaintiff does using seal signature thereon and initial argument, or in oral defendant’s brief he stamped. By doing, has previously denial of his wife’s standing appeal to required by Rule fulfilled the formalities motion, but, standing jurisdic as lack of e., 69(b), i. that the Writ issued in the tional, now, sponte. sua we raise issue Utah, name of the sealed State no on which defendant perceive We basis seal, by the clerk.1 Court’s and subscribed his standing appeal has to denial of wife’s right appeal motion. to stems J., CROCKETT, Defendant’s ELLETT, C. MAU- from his interest in the funds in check HALL, JJ., concur. GHAN and he ing appeal, on claims account. him, but his belong, funds wife, ironically, urging very thereby, self-defeating
interest which must be standing he no to assert it.
him as has point on appeal other Defendant’s Utah, standing, concerns a reis Plaintiff and enjoys where STATE Respondent, A of Execu sued Writ of Execution. Writ properly tion was issued the Clerk v. August Court on 1977. When Sher FOUST, Rex Defendant Glen to levy enough property iff was unable Appellant. satisfy plaintiff's judgment within No. 15786. Writ, day life of the he returned it to sixty Court, the Clerk of the who reissued it Supreme Court Utah. striking “August” out the month as the Nov. issuing inserting place date and in its filing month “October.” fee of $2.50 paid
was not
for the
of the writ.
reissuance
then executed
sold
Sheriff
Utah,
69(b):
issued in the name of
State of
1. Utah Rules of Civil Procedure
sub-
sealed with the
seal of the court
(b)
May
Contents of
Whom
Writ and to
scribed
.
clerk.
must be
be Directed.—The
of execution
writ
*2
Hansen,
Phil L. Hansen of Hansen &
Salt
appellant.
City,
Lake
for defendant
Gen.,
Hansen, Atty.
Earl F.
Robert B.
Dorius,
Gen.,
Atty.
City,
Lake
Asst.
Salt
Hess,
Atty., Farming-
Milton J.
Davis Co.
ton,
respondent.
plaintiff
jurisdic-
rule in other
There no uniform
HALL, Justice:
necessity of corroboration
as to the
tions
conviction of
appeals from a
Defendant
prosecu-
U.C.A.,
76-7-
incest in violation
in those states
Generally,
tions for incest.
accomplice statutes
adopted
which have
16-
stepfather
Defendant
for incest
ours,
person indicted
*3
such as
desire
expressed
who
prosecutrix
old
year
on the uncorroborated
cannot be convicted
preference
girls’
high
school’s
to attend
if she consent-
prosecutrix
testimony of the
her mother if
asking
dance. On
Christmas
act,
in such case
since
ed
the incestuous
to
attend,
to ask de-
she was told
she could
This rule
accomplice.2
as
regarded
she is
prose-
legally adopted
fendant who had
apply
to
even when
con-
has been held
eight
earlier.
years
cutrix some
given.3
reluctantly
sent was
defendant’s
daughter alleges that she asked
to
question is therefore reduced
they
home alone in
while
permission
was an ac-
or not the
whether
washing
claims de-
kitchen
dishes. She
she
Defendant maintains that
complice.
go,”
she wanted to
fendant asked “how bad
participation in an
was since her consensual
in-
fondling
began
her breasts
then
much an
every
act
intercourse was
bit as
Although
play.”
to
quired if she “wanted
participation there-
act
was his
of incest as
voluntarily
in
participated
that she
denying
in.
with defend-
sexual intercourse
alleged
testified at trial that
followed,
ant that
she
the acts
determining whether
of a
In
go
girls’
to
to the
figured
“I
that I wanted
participant
a crime constitute those of
in
Later, under cross-
dance so I consented.”
or not he
accomplice,
of whether
the test
testified,
go
wanted to
she
“I
examination
with the
charged
also
same offense
could
to have relations.”
to the dance so I decided
has of
by
principal
as
that committed
However, such test
rested, the
ten
resorted to.4
defense
been
the State
After
ascertaining
insufficiency
only
is
means of
moved
dismiss
reason of
convenient
to
necessary
is
complicity
of the
The motion
based
the fact of
and it not
evidence.
testimony
prosecu-
that the
of the
that he be
with the same offense.
fact
uncorroborated,
being
charged,
trix
she
an ac
he
In the event he
none
complice
having
her consent
given
to
For exam
accomplice.
theless remains an
charged.1
the act
The trial court denied
may be af
ple,
accomplice
one who is an
ground that the
defendant’s motion on the
immunity
prosecution in return
forded
from
consent
be an
prosecutrix could neither
nor
against a
willingness
testify
per
for his
“[eighteen
because
over is
joined
committing
in
son with whom he
accomplice, by
(Emphasis
the statute.”
criminal offense.
added.) Requested
instructions
to the
event,
provides
Utah law
any
In
testimony
of the
necessity of corroboration
denied,
may
14
be held
age
that one
presuma
of an
were also
over the
Further
responsible for criminal conduct.5
bly for the same reason. As to these rul
more,
years
age
within
in error. There is
a minor over 14
ings the trial court was
juvenile
sup
of the
court can be
jurisdiction
no Utah case or statute to confirm or
ruling.
adult,
in
port
above-quoted
prosecuted
punished
and be
Kasai,
U.C.A., 1953, 77-31-18, provides
v.
4. State
27 Utah 2d
device accurately generalizes The State case, testimony of the prosecu- In this usually committed crimes of this nature are participated trix that she in an incestuous witnesses; isolation, in without that one of fact, question viz., act raises a further victim, parties usually whether she consented thereto and thus be- Utah, of consent in historically age accomplice, came an or whether en- she gen- sex such cases has gaged will, against act thus be- legal as a persuasive are not eralizations victim, permitted came a hence testi- argument support deprivation of the fy as to the necessity event without the right presumption Constitutional corroborative evidence.7 competent proven innocence until evidence. admissible is to be remembered that It *4 general sense, “consent” has nothing to do behind the law re purpose The real incest, with the crime of which is included testimony of of the quiring corroboration in our part criminal as a chapter code of the to one protection an is to afford Against entitled Family.” “Offenses The law, a a com falsely Absent such accused. be consent must here considered point the fin designedly free to plainant is as a proof. age matter of To determine the one, who, the at for lack of an ger guilt of of which one to be of capable is deemed witness, may unlawful alibi or find himself giving consent to the element of intercourse our ly incarcerated. Such would offend incest, the crime of we must from borrow justice. of system whole another chapter the of code.8 It has It although is also be noted that the legislatively legal determined that it is not has challenged defendant uncorroborat- the possible ly for under anyone age the of testimony ed pre- no prosecutrix, fourteen intercourse, to consent to sexual sumptions indulged guilt, are to in as to be sodomy or Furthermore, sexual abuse.9 a victimization, matter, any or for that that person male commits unlawful sexual inter crime was committed. at all course if he has sexual intercourse awith (not wife) female his who is under sixteen stated, Purely simply no convic years age.10 of We need not our concern tion of had in the defendant can be the selves with applies which statute here be competent, absence admissible evidence cause the prosecutrix was clearly over the constituting proof beyond a reasonable age of sixteen and therefore capable of (1) doubt the crime of incest was com consenting. If jury determined to mitted, (2) it that was committed with crime, have consented to the the prosecutrix out the of the prosecutrix. consent would be accomplice, an whose The judgment is reversed remanded would require corroboration. for trial opinion. a new consistent this with ourselves with which We need not concern WILKINS, JJ., MAUGHAN and concur. prosecutrix because the applies statute here age of sixteen clearly over the ELLETT, Chief (dissenting): Justice capable consenting. If deter- therefore jury mined to have consented to This case involves reprehensible a most crime, crime, would be an accom- viz.: an adopted Intercourse with U.C.A., 1953, 1953, U.C.A., (Offenses Chapter 6. Title 8. 78-3a-25. Person). Against the suscepti- undisputed and Unless the facts are 7. U.C.A., 76-5-406. 9. conclusion, only fact ble of one reasonable finder done determines whether an act was U.C.A., 76-5-401. 10. Am.Jur.2d, Trial, voluntarily. 75 Section be judgment should opinion the my In A defendant daughter. old 16-year just deserts on a mere affirmed. escape his should opinion re- technicality. prevailing ground the conviction
versed CROCKETT, (dissenting): Justice accomplice in teenage daughter argued defense on reject I would I cannot reasoning this the crime. With in the dissent ground first discussed agree. as a her status that in Ellett: Chief Justice witness to be an In order regarded be daughter minor should subject testifying, be must, the time at accomplice. as an crime with identical conviction Act Court Juvenile provision charged. which the defendant child with charging with deals 10—105(4): incest, charged with offense is Sec. she could be Before 55— her to be necessary it be for crime charged with be child shall No there be being delinquent child and except court any nor convicted juvenile court. Not hearing thereon 55—10—86 provided in section that she until that court had determined [Emphasis added.] judicial- delinquent child could then was a of- provides that for an The latter section status and ly confer different felony if constitute fense which would Un- prosecution adult. certify adult, if full investi- committed after occurred, til the child would those events *5 gation hearing the court determines and not accomplice and could be be an child or of that the best interest crime as is de- charged with the same may public require, the court make so fendant. that the child order and direct to that effect then so for proceedings be certified accomplice requires To hold her procedure had such a district court. Until punishment is holding, not that she liable occurred, proceedings of there could be no father, for the same as her but that crime against the victim. nature criminal it later be possible might she on charged. I this situation which analysis law, think is correct under should be considered: Another matter justice, is requirements best serves the chargeable girl The father and the daughter was a minor under that the with the same offenses. father until parent; domination her sexual charged with incest in that had judicially changed had her status If ever be- daughter. relations with his it mentioned, could procedure above she charge daughter, possible came charged of the crime not be nor convicted had charge would be she sexual rela- guilty, of which defendant was found it be tions with her father. If claimed that she therefore would not be an accom- she with her father in plice perpetrating in his this shameful herself, not she the relations with The reversal iniquitous offense her. crimes, (1) two to wit: then be pseudo jury of the verdict of the (2) as with her father and a distortion technical defense is both she had relations which principal justice disservice in this serious case she could not be Clearly with her father? processes justice generally. to the act, and if charged twice for one incest, then she possible charge her with of- not be father’s
could be his accom- therefore could not
fense and
plice.