*1 64 P.2d
tively prevent asserting defendant from his defense. The court’s dismissal claimed Utah, The STATE of Plaintiff and proper.1 Respondent, was this cause of action opinion We are the court Terry LOUDEN, D. Defendant and plaintiff’s should have also dismissed second Appellant. action services cause of rendered. As No. 9851. accountant, occupied plaintiff Supreme Court Utah. appears with the defendant. It of trust Dec. that he was the record more than from just accountant. defendant’s He loaned paid
money defendant and on occasion employees wages of of the sign
Club. Pie was also authorized to so,
checks, bank did the Club’s We held that a real estate
account. discharge
broker who failed his principal dili- care and with reasonable precluded recovering
gence from reasoning is
services rendered.2 The same acting
applicable plaintiff here. The fiduciary capacity failed to account defendant
refused.
produce and records. the books foregoing
It follows accounting, entitled to an dismissing his
that the lower court erred
counterclaim. proceedings
Reversed and remanded for opinion.
consistent with this Costs to the
defendant.
HENRIOD, McDONOUGH, J., and C. WADE, JJ., concur.
CROCKETT 16, U.R.C.P., Matheny Harper, v. Porter 2. Reese v. Rule 8 Utah 2d 329 P. (10 C.C.A.) 158 F.2d 2d 410. *2 Cummings, City,
Robert C. Salt Lake appellant. Kesler, Gen., Atty.
A. Pratt Ronald N. Boyce, Atty. Gen., City, Asst. Salt Lake respondent.
CROCKETT, dealing question with this it should be Justice. aspects remembered that there are two appeals from conviction of Defendant situation respecting considered: charging degree burglary second rights of citizens un- to be free from admitting A) evidence erred in: trial court warranted privacy; intrusions their by an have obtained unlaw- claimed this, and contrasted to seizure; try refusing to B) search ful citizenry generally to have their law en- issues absence forcement officers allowed sufficient free- confession; alleged the voluntariness performing effectively dom in their duties to refusing give certain C) instructions safety protect public and of them- to the confession. pertaining regard realistically selves. In that it cannot of evidence A) The admission obtained expected keep officers will abreast search. by the rulings the latest courts as to procedures They detail of to be followed. disposition disagree We have no must be allowed some reasonable latitude police doctrine that where officers carrying on their investigative work. Un- by illegal methods, obtained definitely their conduct transgresses less search violation of as unlawful *3 accused, rights of the it is neither the desire United States Amendment to the Consti IV proper the nor function of the court to I, Consti 14 of our tution and Article Sec. reverse a conviction as a rebuke to the offi- to convict tution, used it should not be of cers because unintentional failure to (cid:127) crime, by the United held of strictly requirements the follow the of Mapp case of Supreme Court States challenged, If their conduct law.3 admittedly are Although there v. Ohio.1 analyzed realistically with those which indicate court of this older decisions thoughts in mind. circumstances, evidence that under certain obtained, may be unlawfully though' even felony,' here knew that a The officers as evidence.2 used them, of been committed a series investigating They went to them. were and is whether a here- Our concern “tip.” The on a defendant’s motel room the room was motel of defendant’s search and the information nature source of exact by the denounced an “unreasonable search” advisedly disclosed, provisions. In was not as is sometimes constitutional mentioned 615, See People Stroble, Ohio, v. 36 Cal.2d 81 S.Ct. v. 367 U.S. (1961). 226 P.2d 6 L.Ed.2d v. Fair, 2d 2. See State P.2d 615. @7 nically appar- permit But case in detective work. it is had no to to others Nevertheless, ent was enter. that it indicated that defendant whether the evidence by involved and that it was reli- was obtained an “unreasonable search” sufficient of by ability provisions denounced that the officers act the constitutional willing were to primarily They referred proprietor it. for the trial went survey situation, upon a permission enter, motel asked whole and which granted. in mind having both pistol The citizens officers found a practical exigencies police in a and drawer work.4 serial identified appears Unless its determination to be clear- number having in a burglary stolen ly wrong, upset we will not it. As we re- Center, Harmon’s Shopping a crime situation, view particularly they including which were attemping solve. For made the officers to the land- their reasons, own replaced the officers defendant, responses lord pistol in the drawer and waited outside thereto, fail high-handed we to see anything the occupants to They return. out turned or ruthless about the conduct as defendant, officer’s be the Louden, and Mc- present Ohio, Queen. The officers exercised cau- above; referred to nor anything tion “frisking” them (tapping their compel conclusion this was clothing with their hands) weapons rejection of “unreasonable” search found none. The they officers aver that Accordingly, evidence. then we will not asked if “could take look ruling admitting reverse the it. around” to which the replied, defendant “Yes, you can come in B) and look around.” Confession. of the defendant is that he custody, in After was in said, “Would it make if I difference response questions burglary about objected?” They made the search and in Center, Shopping Harmon’s Mr. he told “ addition to * pistol, * * two wrist- Parley Blight, deputy sheriff,
watches and some crowbars which also had that he went there about in the morn- 2:30 come from Shopping Harmon’s ing, pried open Center. back door looked it;
around for the safe and couldn’t find
*4
reject
We do
rummaged through
not
had
idea that the
the cashier’s desk
may regard
tenant
motel
there,
of a
room
and
any money
couldn’t find
as
and so he
privileges
pistol,
home
claim
camera,
and
would
took a
Polaroid
various
him;
proprietor
nor that
afford
tech-
and
watches
some crow bars.”
comprehensive
opinion
California,
See
discussions in
s
Ker
374 U.S.
83 S.Ct.
Before degree, requested securing for attorney by for third court ant’s threats, promises as meth- presence improper hearing or other out of the determining procedure to the ods. But had made statements he whether the repre- voluntarily. question. open He voluntariness is officer were made some claim that that the defendant sented tell the firmly him if he would It told should be in mind
the officer borne property that it would receipt about the be the such unreli facts evidence, he would help up burglaries, able clear some not from the variation prosecuted. suggested State’s some its determining method be not only so reliability, preju that if he told which he was would constitute charges would be statutory no “other” error. cooperate that dicial There is man grant not procedure The court did date against him. as to the to be followed. filed separate the issue rigid trial on Nor for a should there inviol put upon duty that the defendant able one. The which but indicated devolves desired. if he so in the trial adopt his evidence trial court is to on follow
procedure against guard which will urges spurious statements ad that the admission of Defendant confessions confession, may under the vary and that missions. some How is done constitute Crank,5 he what in State v. procedure depending set the circumstances forth as to its each the issue con to have the court should have entitled the court how determined siderable as to latitude of discretion voluntariness jury. protect the state Whether the defendant absence served, involving purpose a confession all regard. constitute If that ments crime, adopted may vary from contended elements fact that course defendants; only procedure or are admissions also some other thereto, permissible, aá' in pertaining should not result deemed certain facts State, serious have no of the conviction. we here in the reversal sisted or an confession That either a concern.6 borne in mind that involuntarily must be It procured
admission which
only the
mentioned
not
This
is not debatable.
excluded
safeguard the
defendant, must also
guards
salutary
It
purposes:
two
serves
“admission,”
omprehensive
less
A.L.R.
142 P.2d
Karumai, 101 Utah
v. Masato
State
see
592,
QQ Furthermore, only charges of the State. it has told that no woúld “other” be i responsibility seeing against him, that filed trial reveals the defendant’s orderly in an moves forward contention . attempt manner and as to avoid feeble , expedition consequences with such reasonable as can be of his The admissions. ¡ looking consistent with amply justified thinking achieved after the trial court was in interests of both sides of the . controversy. there was no real likelihood that were quite impractical It would be deny-: halt gotten involuntarily from him in trial, jury, main excuse ing separate and conduct on the trial question collateral trial on of voluntari- issue. He advised that the n every put ness of an admission on in confession his evidence if he so trial might objec- ruling, time defense counsel desired. It is that make obvious this is the - tion. approved pro- While this has been indeed been that have made and the the; proper as procedure that under circumstances cedure followed had it,7 which require only separately. done been tried should be issue when presented there is genuine such a C) Instructions. substantial as in issue that voluntariness given We have due consideration to the judgment court’s real there is some points raised as to refusal give instruc- possibility to hear permitting the The issues were adequately covered, tions. prejudice their minds would so prejudicial and we find error therein. a fair defendant could not have Affirmed. No costs awarded. trial. The not exist latter situation did here. and;
McDONOUGH, CALLISTER WADE, . JJ., concur. The fact in the defendant practical judicial effect had con his initial HENRIOD, Chief (concurring
sideration claim that in His contention. Justice result). he was told that “talk” and if he would cooperate all, prosecuted at he would not be I concur in the result. It is for- difficult fact that
considered in connection me, however, opinion, to see how the main his motel property of the in pay and; can Ohio, reverence v. room had in one as obtained identified war-, it, where, then distinguish here, no burglaries, more rea and the much in-, used, rant was where violence degree. sonable he was volved simply version the officer that I am off Braasch, Crank, 7. See State v. 119 Utah P.2d and State footnote supra. open majority peace officer “break the door opinion the context of the *' * * building which the hopeful at a relaxation hints do, is, be arrested or in but, futuro, sometimes there are courts grounds be, for believing reasonable him to espousal distinction and avoids ' remains, demanding explaining after admittance and laudatory purpose. *6 purpose of the think, interpretation for which admittance is de- a that under literal appear in sired.” It would officers Mapp case, could the premeditator the a careful provisions the this murder, pieces in case satisfied of body up, put chop the through largely Our a statute. statutes were a codi- car, blanket, race under a hour, get fication of the and have stood per common law lights at dozen red 100 miles vehicle, time, the test of and it to me that a'rrested, seems object to a search legislation under the circumstances and peace a nonetheless after officer here no need save authorities be canvassed peek, impounded taken a discovered those of our own state. killer, rented remains, driving a sordid immune, car, perhaps, seem be would preliminary be a determined as If case, admissibility of Mapp under no reasonable matter officer had evidence, go unless would scot-free felon, cause to believe the to be the accused evi- corpus shown delicti be other thing, one and should considered In dence, completely perhaps unavailable. quan- admissibility determining in engenderable novel results opinion, the my proof respect to quality tum of result, ultimately Mapp Ohio sought. which the accused was offense for demise, least, in its its ameliora- if in not pro- the officer should be In like fashion rule de- a common sense in favor of of tion factually such reason- there were tected if protect, destroy, public not signed the accused able to believe cause weal. felon, judgment in the officer’s but case, proved inaccurate, neverthe- in which have such a rule reason state we of In our less, another admissibility of evidence 77-13-3, Code Title Annotated under misdemeanor, not offense, as a peace a allows officer to arrest as to offense accused’s invade 1) committing felony warrant without sought out, he for which 2) where the presence, arrestee act- in his danger of recurrence assuage the though felony, has committed not ually latter. presence! and 3) where a officer’s novelty Mapp decision could committed and the has been felony officer hypothetical example, in a large, cause to believe the arrested reasonable .loom officer, having reason case where it. Under Title 77-13-12 person committed believe to have adultery, committed when the sprung door was in an effort to enters the warrant, latter’s home without a bombing. accumulate evidence to a Had conduct, discovers no adulterous Mapp charged but finds Mrs. bombing with the conclusive itself, evidence a murder. Such I any would concede that evidence, it, under the I take discovered might as to that offense be in- would be proving admissible, inadmissible in as offensive to the American murder. alone, play traditional sense fair —not necessarily because of the IV Amendment castle, concede that man’s home is his or other although the amendment — the unlawful gives invasion of which him puts ground, it on the latter —a right civilly by physical redress prove matter which seems to growing if, during counter-attack. But in- tendency, few, not if insistence not subjects vasion which the intruder to dam- many, on the emasculation of state discovered, ages, a murder is evidence of rights in favor of totalitarian federal 'Con- such murder should not be inadmissible trol, heralding the ultimate destruction of prior compensable because of the invasion government fundamental font of privacy. They are two blood; which our forebears bathed each’s things, different akin to a case where one *7 unlawfully doing assaults another and in so (cid:127) things In the nature I accept felony. unearths evidence aof The assault- Court, Supreme decisions of the but reserve against ed can obtain redress for his bruises right, bondage pre-empts, it, until attacker, out or could knock him criticize them. reserve to the citizens of perhaps him, itself kill the assault but my privilege state respect same suppression be no reason for opinions. my But here is the rub: The cit- per- affray evidence unearthed in the my izens state have the haps points conclusively solely to the privilege and duty the honor and the to re- fact that the one attacked a murderer. polls err, move me from office at the if I n election, It 'seems to me that there be a free such right, privilege, illegally difference between obtained evi- given honor or the electorate so far accidentally dence and obtained evidence. concerned, counterparts as the federal are In did in to not break respect With to the instant oúr respect pornograph-
obtain evidence with statute,with^ course clear under our state literature, ic investigate but to a felonious (cid:127) complete bombing. illegal entry any Mapp guide" out us. .