*1 143 v. MATTERI STATE (225 325.) P. 7413. Decided 2d No. December Rehearing denied March 1951.
Joseph Fratto, Christenson, B. D. C. Gordon William City, Callister, appellant. Lake for Salt Roe, Vernon, Atty. Gen., Bryce Atty. E. Asst. Clinton D. Gen., respondent.
PRATT, Chief Justice. appellant, Matteri,
The of the first Fred was convicted Delk, appeals. P. he His one Levi conviction was circumstantial evidence. The leniency. judge imposed recommended The trial the death penalty. body
The of the deceased in a was discovered stream canyons City, near one of the south and Lake east Salt County, May 6, Friday, and in Salt Lake on 1949. The body injuries examination of the revealed several on the body. irregular The most severe was an laceration of the extending scalp top from the of the head down below the head, measuring left part ear on the rear about six by nine inches. At the site of this laceration the skull was pieces. broken into several There was a laceration on the extending front of the head to the bone. The throat had punctured sharp instrument, been with a however. This right occurred after the death of the deceased. On the side of the forehead there was a bruise two inches diameter. forehead, right There were other nose, abrasions on the leg. knee left The cause of death was determined to object, wound, a blunt inflicted been from the head edge, weapon jagged possibly sharp with a clad, papers body partially never found. The The last body, made. the identification was found on operators of the tourist alive time Delk was seen lived, Friday, April camp court and trailer where evening. performed the doctor who gave been im- autopsy opinion had as his prolonged time, he didn’t venture mersed in water for a long dead. He an estimate as to how a time Delk been autopsy, performed did that at the time he estimate had been dead a minimum of from 24 to hours. He that from the state of shock evidenced Delk’s said organs say hours, pos- he would that Delk lived for a few *3 sibly three, two or the wound after was inflicted. surrounding apprehen-
The circumstances defendant’s charge being against sion and the filed came about as follows: family, together lived in a
Matteri, his wife and with having Street, camp on State trailer South tourist court 7, They three 1949. resided in one of in on March moved there, one which was rental units connected 20, 1949, April completed. Matteri resided about After there, renting resided an elec- alone. likewise there Willys space panel for his truck trical outlet and began living April 13, 1949. he lived. He there notary 1949, 30, April appeared Matteri before On signed Delk, represented that he Levi P. Willys panel truck, of title to a which vehicle certificate having belonged at trial to Delk. as identified morning again During day, rep- Matteri the same resenting Delk, Willys as sold truck to Arch himself Browning, dealer, Inc., cash, mostly a car $650 twenty by A cash transaction insisted on dollar bills. ignition appellant. key No was turned over to the car
dealer, fact, ignition wires had crossed been key. day, April dispense with the need of a On the same name, purchased Ford, Matteri a 1936 in his own twenty dealer, used paying another car for the same bills. dollar May 3rd, sought gold
On 2nd and Matteri to sell a watch workmen, failing so, to two his fellow do pawned office, at watch a local loan late in the after- May 3rd, noon of and in his own name. The watch was having definitely identified as been owned Levi P. Delk during his lifetime.
Eye glasses positively having belonged identified as Christiansen, Delk were co-proprietor found Mrs. glasses gravel tourist court. These found were out- side units, the center unit the connected Mrs. Chris- tiansen, morning May on 1950. At that she. time they asked his, Matteri if replied were to which he negative. Mrs. Christiansen appear- testified that Matteri upset ed when morning, she saw him that but she attri- buted this at the time to the fact that Matteri’s wife had recently left him. A gold-plated knife, small watch-fob belonging identified as a Delk, corn cutter was found open in an building. field south of this same May at Matteri continued to the tourist court until live 5th, paid May 4th or when he left. His rent was 7th. *4 body identified, was After the discovered and a search court, was the made the tourist and middle unit the units, tourist at this time unfinished un- yielded occupied certain clues and information. the On unit, large spots two floor rather or stains were They having color, ap- found. were brown reddish the pearance spot dried, One blood. the other was still appeared vomit, moist and be mixed with as determined appearance gave the The of the room smell. some indi- paint A stick struggle that a had ensued there. cation there, paper had blood found found on the floor and some quantities as identified on them in be stains sufficient such, type “A” International under the and classified as system. Grouping The shown to have Blood victim was type “A” blood. matting Willys Samples truck rubber the possible positive presence stains which tested for contained blood, panel as did the on left door of the truck also laboratory F. B. I. in . when tested their key occupied by to the unit Matteri also fitted door of the unfinished units. identi- unit matched
A in the vacant center button found as cally on the decedent found buttons on shirt slightly design shading, material, shape, but was slightly thicker, attached and the threads smaller to attach appeared with that used button identical shirt. buttons to deceased’s
Though circumstantial, points rather conclusively Mr. killer. Delk was to the accused as 29th, m., April last 5 and o’clock seen between p. following morning tourist court. The returned car, purporting and within Matteri to be sold Delk’s days pawned these are watch. factors a few Delk’s When alongside brutally placed the fact that Delk was beaten and killed, apartment adjoining and the that the fact unfinished place Matteri’s bore evidence that this was the where such beating place, discovery took and the partially submerged stream, in a apparently which it was hauled truck, appears and into which it to have been thrown disposál, little more need be to induce a said belief that accused killer. urged appeal,
On this it is there is no evidence of against the defendant. *5 particulars defendant, charged of bill furnished the having deliberation, pre- defendant with killed Delk with aforethought having meditation and malice and with killed committing robbery. of in the course a The court above, limited instructions to the first of that a deliber- premeditated aforethought. ate with malice predicates degree Defendant contention that first his theory murder has not made been out on the that there was premeditation, no deliberation, evidence of nor of malice aforethought, specific part nor of intent on Says appellant: defendant to kill Delk. speak ‘deliberation,’ ‘premeditation,’ aforethought,’ “When we of and ‘malice mind, ‘specific intent,’ speaking we state of mental atti- are prior tude intent of the of a accused formed commission homicide. necessity being probe itself, Not of able the mind state must such of mind be determined of actions the accused.” agree. But, says appellant,
With we would “the state of prior to, mind is determined the actions of the accused at time of the commission the act with which it is Appellant connected.” then there concludes prior were no acts Matteri’s to the homicide any which show Delk. state mind in relation to That “there preparation, were no acts of securing no selecting weapons, lying wait; no there were no boasts, threats, no arguments, no nor other difficulties be True, tween the accused and Delk.” of the enu present, against items been merated the case the defend considerably stronger, ant have been made would readily anticipated. However, conviction more the absence of such facts does not mean cannot find the requisite part state mind on defendant, order make first out murder. Nor does it mean powerless to return murder ver simply successfully dict because an accused has stealth up prior killing, covered indication as to what reasoning planning. appellaht’s To follow would be *6 sufficiently careful say if the killer is that in effect killing the nothing the meets of does in advance that he see being con- chance of eye, he has avoided public then killing human of a murder. The victed of frequently being by attended circumstances another is deed, the doer. Such secrecy, and as to as both escape killings classification as first not should proye simply no evidence is available because specific lying of those factual in wait or other the being present appellant the stated as situations fact, fact that no more was case. As a matter the Delk, indication of care- to connect Matteri is some found preparation. ful us. do have before the facts which we then to
Let us look injuries previously been have and extent of the The nature beating. expert An They a brutal evidence considered. killed Delk was that the force blow indicated great sufficiently probably not have resulted would that chin, ground and that after a blow to from fall to fall, injury fall would have to cause such an height. great expert A certain medical be from a instantaneous, that Delk had not been death three the blow on probably lived for two or hours after injury unconscious, head, but and that such an would be physical indicates that would be fatal. The evidence struck, place where the was removed from the blow creek, placed find. and or so the could We surrounding already reviewed the circumstances the sale morning following his last of Delk’s automobile on the court, attempted sale, appearance and at the auto and the might pawning watch. not have been While the concluding killing per- that the was done in the justified in robbery, well have found that could petration of a killing wrongful taking was the of de- motive for appellant and that selected Delk as property, ceased’s knowing deliberately premeditatedly, and as his victim did, living alone, was a here man under semi-transient conditions, sought likely who nor anl wouldn’t be missed particularly, body nor identified the event his found. body disposition manner of and of the truck give every preconceived plan and the watch of a particular body person, dispose to kill this of his to avoid discovery crime, possess property, and his sell doing. may picture a motive for so The entire be sum- beating marized as a brutal spot, at one dis- posal another, personation at a false of de- selling purpose ceased for the property, disposal his *7 property of some of accused’s; that as the and all without explanatory an Certainly character. such only picture offense, not identifies the accused with the supports implications malice, but planned and of a course justifies of conduct that an inference of deliberation and premeditation. As Homicide, 1, stated Warren on Yol. p. sec. 78: person naturally “Where the takes life another act calculated produce result, explanatory to that rendering in the absence of circumstances excusable, degree the highest, homicide or criminal in some less than the creating doubt, or presumes a reasonable the law that he intended the result
effected, guilty degree.” and he is of murder in the first areWe convinced that there is evidence from which the jury justifiably degree murder, properly could find instructing jury. and the court did not err in so the Nor, improper was it for the court to instruct on degree jury second murder. It was for the de to degree termine the of homicide. argument the court
Now that misdirected jury giving instruction to no. 7 as part objected of the The to offense: is the fol lowing : you “You are further if instructed that believe from all of the evidence
beyond a reasonable doubt that the defendant committed either the offense specifically charged offenses, in the Information or one included he did offenses of two or more if reasonable doubt as to which you have a lowest those be- convict only then can him commit, you among your tween which lies doubt.” “must’' that the court should have used It contended is pro- instruction, in the because the statute of “can” instead jury him thé must find circumstances vides under such degree. objection that “can” guilty The is of the lowest knowledge, meaning ability, skill, “to carries mandatory means,” com- capacity is while “must” however, phrase is “can” convict pelling. used degree,” truly what of the lowest and this as describes mandatory do, the use is allowed as would * * * language is, found in That “can statute. only” the limitation under which the is indicates act, yet bound to more favorable the defendant is language compel than the in that the statute it does degree. perhaps find even well the lesser This is following quotation from the case of illustrated Cerar, 597, 601, State 60 Utah 207 P. where this court said: using vigorously somewhat the court erred “It contended which latter term word ‘can’ instead term is used ‘must,’ reading A instruction will disclose cursory statute. mere excepted term in all ‘must,’ if the district court had used the counsel that, prob- complaining be here the court in effect directed would ability *8 jury guilty degree, the the some in such event appellant to find and using the there would at least be some reason the contention. By
term ‘must’ in the instruction to, very referred awkward expression might have would resulted have been mean that the construed to jury guilty degree. to find required the lower appellant some judgment, stands, instruction as it our intent clearly reflects the true juror intelligence purpose statute, sufficient to in any sit case could not have been misled what court said.” giving There was no error committed in the of instruction 7, complained. no. deliberating jury had for some time been
After concerning inquiry jury make in to court called foreman indicated progress. At that time the their instructions, jury one of the was troubled that the 15, no. which dealt with the recommendation of life im- prisonment, question: and asked the just recommendation, “We ask the is we like to what it —what would you know is how at look it.” inquiry The court in to this said: answer “Oh, well, now, jury what that I tell now that I will make means — investigations way you before or I act one the other. If make recommen- you dations, my may that I all do to untie hands so not order de- sign you you that, permit fendant executed. If then do not do not me to any investigation you make or to determine. I can’t tell now I am what going to because do I don’t know. I need more information than would weighty importance. I now before I would have act matter of this ways securing jury have I means of information that would have, you compel my your not do tie not hands nor me to follow recom- merely give right making You mendations. me the after do it investigation done, can, I feel be I should then but I am not obli- gated to.” not, course, jury
The court could
disclose to the
whether he would or
would
follow a recommendation
imprisonment.
so, likely
of life
Had he done
it would
prejudicial
Furthermore,
constituted
error.
jury
should not make
statements to
tend to
way
induce the
act
one
other. The
matter
lies
entirely
jury.
Romeo,
within the discretion of the
State v.
46,
530;
42 Utah
128 P.
Markham,
State
100 Utah
They
This case
problem
present
is beset
the same
which was
Trujillo,
the case
of State v.
Utah
Degree murder, applicable so far as the law to this concerned, case is is intention, having specific design killing after or “the of another formed beforehand, great bodily injury deceased, thought cause out thought beforehand, act, design, an out an know- after intention or to do consequences likely
ing and natural the reasonable thereof would be injury great bodily death cause to the deceased.” entirely, Eliminated from the case so far de- as second gree concerned, possibility is of second murder when there exists an intent to kill. While intent degree murder, necessary requisite to kill is not a to second important may element if there is absent other be to raise the elements to first murder. Could present reasonably case determine from facts, there existed an intent to kill and malice afore- thought yet beyond be not convinced a reasonable
154 pre-
doubt that the state had made out deliberation and they reasonably meditation? If could so decide presented case, circumstantial evidence them this prejudicial then there was error in this case as in the Trujillo case, failing to include intent to kill as ele- ment of second murder. point
First let us out that the omission from Instruction kill, of the element of intent was one no. invited counsel, they requested defendant’s since instruction request substance in their Despite no. 10. this fact however, being capital case, this a cog- we should take any palpable nizance of error might in the record which prejudiced though assigned, defendant not even if invited the defendant himself. It must be re- membered that the instructions of the trial court should be addressed to the it; case adequacy before and the of in- structions judged light should be of the facts. Let again us consider what we said above about the facts of this case: disposition manner of body of the and of the truck give
and the watch every preconceived evidence of plan particular to kill person, dispose body of his discovery avoid crime, possess pro- and sell his perty, as a doing. motive for so picture may The entire be summarized beating as a brutal spot, at one disposal another, at personation a false deceased purpose for the selling property, his and dis- posal of accused’s; some of that as the any and all without evidence explanatory of an Certainly character. such a picture identifies the offense, accused with the supports implications malice, planned and of a course justifies of conduct that an inference of deliberation and premeditation. wholly
It other would seem that conclusion would be unreasonable. If the doubt as to an intent the inference kill, consequently chose draw fight killed when in a or that killed bodily great merely the intent to do defendant had adequately Instruc- harm, covered that situation was and cir- doubt that the facts tion 11. have some no. We given required any on instruction cumstances is hard to believe that murder. It second intent to kill with the could find an of reasonable men wrongful taking property the motive-—and of deceased’s *11 only from the evidence —and that was the motive inferable slightest about the at the same time entertain the doubt premeditation. presence of and If there was deliberation kill, given adequately no then the instruction intent covered the case.
That it is not error for
court to refuse to instruct on
a
charge
murder,
in
second
where the
is murder
only
degree,
support
first
the evidence
in cases where
would
finding
acquittal,
murder or
the settled
is
558,
jurisdiction.
Condit,
rule
101
in this
See State v.
Utah
801;
Mewhinney,
135,
125 P. 2d
State v.
43 Utah
134 P.
632,
414,
1916D, 590;
Thorne,
L. R. A.
and
41
State v.
Utah
foregoing
involving killings
The by no evi- the State. There was adduced ceased was that mitigating circumstances. direct indirect dence or Hillstrom, by 46 v. Utah this court State As stated 935, 942: 150 P. required prove cases, state, the de- criminal as in all other “The defendant, guilt beyond without But a reasonable doubt. fendant’s them, may tending proof reason- the natural and to rebut avoid some merely declining stay proven by facts inferences deducible able larceny remaining case and the silent. If in the theft or
off stand explained possession unsatisfactorily unexplained of the stolen recent or shown, may property are he not avoid the natural infer- in the accused by remaining silent from such facts that he is thief ence deducible staying offering or off the stand, no to rebut such inference. proof Here the commission of the offense is all doubt. That proved beyond conceded. Other facts also are shown from which natural and reasonable inferences arise that the defendant was one and the of, active, perpetrator of the offense. The probative effect of them and the natural and reason- able inferences deducible from them cannot be avoided the defendant by remaining refusing offering silent or to take the stand no proof against rebut them. While the proven facts and inferences neither are strengthened nor weakened his mere silence or to take failure knowledge stand, yet when he, with peculiar of facts remains silent, has evidence in his power he may repel rebut such proven facts and inferences, chooses not to avail himself of it, must suffer against consequences of whatever the facts and inferences adduced him tend fairly and reasonably prove.” The People California Watts, case of 198 Cal. 884, 891, P. strikingly is a case so like the instant case that Supreme observations made of that Court state peculiarly There, apt. case, are instant there was eye-witness tragedy, being entirely no the evidence deceased, circumstantial. one Wilfred Hey, spot lonely was found on the desert of Ber- San County. Hey, young Englishman, nardino had lived in apartment Detroit, same with the defendant Michi- gan, prior for two or three weeks to the time both left in Hey defendant’s car for California. had some bonds in an *12 English bank deposit worth about and he had a $1500 $100 in a leaving Detroit Detroit, arranged bank. Before with city dispose the bank in England. that to of in his bonds way While on the California, to he wired the bank cer- money tain sums of Hey out of his account. and the de- together fendant were seen places at several between Detroit Lake, and Silver California. That was the last place they together neighbor- and it in were seen was that days hood that the was found. Several after the two Lake, men seen at Silver were defendant went Italy Angeles representing Bank of in Los himself to Hey inquired telegraphic be about transfer to that insti- money tution of from a appears Detroit It bank. that some- prior time to the defendant’s visit Italy to the Bank of telegraphic from the bank had received instructions money, Hey pro- pay Detroit bank to a certain sum of response from the ceeds sale of his In to the defend- bonds. request, defendant, ant’s the bank issued to the Hey, exchange name of a teller’s for the amount it had been pay Hey. then, authorized to Defendant under the name Hey, opened Italy. Later, of a bank account at the Bank of money departed he drew this The San Francisco. court held the evidence sufficient to sustain a verdict of degree. predicated murder Error was refusal of the trial court to instruct as to second addressing In contention, murder. itself to that the court said: given limiting “The instruction which was in this case, to a finding guilty highest guilty
verdict the accused offense or not of crime whatever, fully was warranted hy the facts disclosed evidence. The blows which caused the death were inflicted a heavy, blunt instrument under which, of circumstances its well use, may have been nothing found be a deadly weapon. There was, as we have said, struggle to show a or a combat. On the the evidence shows contrary, that if the was done defendant the deceased was put to death in furtherance of a base, motive. Under mercenary these circumstances saying we have guilty anything no hesitancy that if defendant was of guilty he of brutal and ruthless murder, done willfully, deliberately, and with premeditation. If there was a failure as to ele- proof degree, ment necessary to the establishment of murder in the first there was a grade like failure of proof as to any lesser of homicide. Either ap- guilty pellant murder in the first or he is innocent. entirely guilty were accordance with it. instructed they would have have Lopez, “Moreover, appellant was they justified harmed told of that offense 135 Cal. as to the heeded even if effect appellant. a reversal [23], acquitted ingredients guilty If that they they instruction giving As we have even if if must P. 965.” were not satisfied they him. first-degree acquit it had been error were not the crime instruction stated, instruction performed murder, altogether. satisfied beyond were jurors, under their whole therefore would not that It will in the first give error, reasonable the instructions who defendant it. be presumed were could not People duty degree, doubt fully present given In the case the opportunity *13 finding They lesser homicide. were forced nothing.” to an alternative of “all or favorable This was prejudicial to the accused. We do not believe there was are, course, committed. error The facts in this case dis- tinguishable Trujillo those There the in- case. scope ferences to be were not so drawn limited as here. Judgment affirmed.
McDonough, j., concurs.
WOLFE, Justice.
I concur. I do not think would have error under been give the facts of this case for the court to have refused degree. an instruction on murder in the second The evi- killing dence from which the could and did infer a Delk preclude any the defendant was other such as to reasonable guilty inference than that if Matteri was killing, deliberately premeditation he did it and with robbery only with as the motive. The other alternatives Delk, were either that Matteri did not kill in which case he guilty would not have been degree, murder in or that got fight in a upon and killed him a sudden quarrel or in passion. the heat of Trujillo case, Unlike the there is no basis in the alternative, evidence for the latter Trujillo and unlike the case there evidentiary is no basis for an instruction on murder degree. in the second Matteri only himself was the one who could furnish such basis evidence and he remained put mute. To an issue with no basis of support evidence to it leaves them to guessing unadulterated speculation. Trujillo In the case, background furnished a sufficient basis of evi- permit dence to determining choice of whether there was premeditated deliberate and intention to kill—murder in the first whether the —or a sudden quarrel voluntary manslaughter intent to do — —or great bodily harm, unpremeditated or a sudden and or un- thought-out intent justi- of which would have kill—
159 degree jury finding in in the second fied the category degree I, Trujillo case, residual in the termed a murder. jury could case, from which the same evidence
In this necessarily in- raised the Matteri killed infer that therefore, gain that, and killed ference that he all came killing The evidence planned and deliberate. was only closely-knit one be- package. The choice was in one kill—mur- premeditated intention to and tween deliberate To degree not kill Delk. that he did der in the first —or evidentiary speculate no permit jury in the dark with unintentional with basis as to whether quarrel unpremeditated in intention or a sudden sudden and passion error. That the heat would have been un- second murder was trial court did instruct on necessary, but the error in favor of defendant complain. he can not This case under facts was a nothing.” concerned, “all or So far murder is it was premeditated at all. done intent or not murder complaint IBut have no statement of Mr. with the Chief Justice PRATT that must have determined that light Matteri committed murder in the first given by of a choice the court first and de- between second gree only this, murder. I would differ in the court given guilty only should have a choice between not guilty degree, and that even of murder in the first after it withdrew from the the issue of whether Mat- teri had killed Delk in the committing robbery. course of True, may rare in cases be which when all the evidence circumstantial, adduced is the court could be safe in omit- ting second-degree an instruction on murder. it must But kept in solely be mind that in cases of circumstantial evi- dence, together may perfect jigsaw fit circumstances fitting together stronger fashion and so make case than many testimony cases where the is furnished witnesses testify through who as to facts derived their This senses.
160 says opinion, is one of those cases. As the main the Cali- difficulty strikingly parallel fornia court no with a Watts, similar case. P. People See v. Cal. opinion. discussed in the main very In a recent case, People California Lloyd, Cal. App. 10, 14, 220 P. 2d which there was circumstantial meshing evidence but peculiarly convincing fashion, *15 the court said: justification efforts was devoted to
verdict
People v.
4 P. 2d
murder
degree.
law
that all
first-degree
same
show
der
stitutional
the court
as to warrant
at
cused
definitions
issue
nothing
such testimony,
dict
“Appellant
all,
of murder
night
charging
accordingly.
wholly
such milder
question was raised in
of
of
for
contended that
any less
Just as in the Watts case, supra,
short of murder
the evidence proved that
809,
murder
murder
Watts,
should be
of
inhibition
of,
the lesser offense.
court
justified
murder.
or excuse;
intended
on
5 P.
the murder, why should the
crimes
in the second
a verdict
denied his presence
second-degree
[198]
savage
crimes.
The facts
in the
should refuse
2d
guided
against
in not
Cal. 776, 793-794,
I that the constitutional incline to the view against being required testify himself the accused to was compulsion protecting and not at him aimed at direct against might which be drawn from his failure inferences testify the circumstantial when evidence is such as to glaringly point person at him the killer and as he is the one explain potent could rebut who references from the accept But I circumstances. at this time the rule that re nothing quires that be made the State of the failure of testify. Yet accused to as was said in State v. Hill strom, Utah 150 P. 942: “* * * proven against While the facts inferences him are and neither strengthened stand, nor weakened his mere silence or failure to take the he, yet peculiar knowledge silent, when with his of facts remains or has evi- power by may repel proven dence in his which he or rebut such facts and inferences, it, and to avail chooses not himself of he must suffer the con- against of whatever facts inferences
sequences and adduced fairly reasonably prove.” tend WADE, Justice. generally reasons of with the result and
I concur in the opinion. prevailing agree a verdict would sustain I do not that willful, deliberate, mali- first-degree murder under the category killing would premeditated cious degree an included a murder verdict as sustain second degrees difference these two offense thereto. The between might category only that to find be of murder under this degree there jury that first murder the must be convinced kill, planning cold to find second a deliberate whereas was degree might they reasonable that there murder feel planned that in cold The effect doubt blood. reasoning concurring opinions prevailing require produce is establish the defendant evidence to requires doubt, to re- law the evidence whereas degree justi- is move all such doubt before first verdict case, may Where, fied. as second found be on the same evidence murder ex- cept the existence of the element doubts distinguishes degrees, may then the court two degrees jury. not refuse to submit both do so To to determine as matter that the can have no law only. may reasonable doubt on that one element If this be why may done we not hold that the can no reason- guilt able doubt on of the elements of and direct a against verdict strong if the defendant evidence were enough ? agree reason, however, I that this error
For another *17 prejudicial. Our statute makes murder committed in robbery attempt perpetrate perpetration or the degree category Under this there is no murder. included
163 second for kill- if the doubts that ing perpetration attempt occurred in perpetrate or robbery, necessarily second murder does not follow. Here the unjusti- tends which to show an killing planned fied part in cold blood shows it to have been plan of a property to obtain person or decedent’s from his presence by immediate force and therefore that it was perpetration murder committed in. the robbery. of a LATIMER, Justice.
I concur the result.
My affirming judgment for most reasons are my dissenting part principles based forth in set opinion Trujillo, Utah P. State 2d 626. happens
This be another case I believe applied judge correctly developed trial the law to the facts during the trial. The evidence introduced was sufficient beyond to establish a reasonable doubt killer delib- erately, wilfully, maliciously brutally assaulted deceased, kill either with intent with intent to do great bodily properly harm. The instructed on possibilities. argue both To could consider robbery killing important as motive for the two overlooks First, facts. trial court eliminated the issue of perpetration robbery ruling of a and this is the law Second, of the case until reversed. if the intent to rob dispose prevent effects detection was formed after legally assault could not prior affect the intent of the killer.