*1 party affected service dent Furthermore, was dated
by. February 1957, 18, filed attorney for 1957, date the on the latter Processing Nephi
Pillsbury Mills mailed judgment. informing them of the letter permitted go appeal period April 12, it was not until the form the motion attack in
collateral judgment was filed. Under vacate the abuse circumstances court did not judg- refusing vacate the
its discretion
ment. respondents. Costs
Affirmed.
McDONOUGH, J.,C. and CROCKETT JJ., concur.
HENRIOD, J., concurs in the result. P.2d 710 Utah, Plaintiff and
STATE McHENRY, Defendant
Edward E. Appellant.
April Atty. Gen., L. Callister, Jr.', Gary
E. R. Gen., respondent. Theurer, Atty. Asst. McDONOUGH, Chief Justice. *2 of the crime Defendant was convicted prosecutes appeal from and He on the verdict. entered E. was found to have robbed Wallace Safeway, Manager General of a store, grocery 4th East and retail located at City, the vic- 17th Lake South Salt tim’s store on the lay were two who 1957. There assailants entry Naylor gaining in wait for Mr. after through a hole cut roof store. Eight Naylor dollars were from Mr. taken gun point at he was then forced attempt open the business safe. The police during attempt arrived apprehended two men fled. fleeing Naylor while Mr. sub- scene. sequently police in a line-up.
Appeal is made on admitting lower court erred in the below objec- outlined evidence over During 'trial Naylor employee, Mr. another Mr. Nickel, relating a prior robbery days same store some five earlier on the February, 11th of 1957. Both witnesses had opportunity see and hear men City, Richards, prior robbery. Salt Lake who committed this It was S. William as a result this earlier observation that said was able to make a rule not prosecution admissible in the identification of It was an An for a accused offense.1 inter alia that rec- to this rule exists in instances despite ognized, partial of his masking when such aid tends face, by spot a blood in the corner presently identification of the defendant right eye the sound of his voice. charged.2 made, caveat Nickel, although present during identity that if with can shown be robbery, the second testified in of out such evidence it should not be admitted identification, Mr. Naylor’s on based the as its preju effect be to would then robbery. Appellant picked first was also dice jury, from inferring present guilt line-up past Mr. Nickel one of activity.3 case unrelated In instant men who committed the first there bearing was some evidence guilty identification of as the There was aby officer party, had a challenged discovery of an automobile ques direct and illuminating scene, near the temporary which bore li- tion. The *3 permits cense windshield, on its and that provided Naylor’s explanation an of Mr. appellant’s permit name was listed the prompt of identification the as owner the of car. Having seen two and heard man on the There testimony by was the occasions a he was better to make able of an oral statement by ap- made them identity. appellant’s statement as to pellant in participa- which he admitted his testimony The of Mr. Nickel was admitted tion in both robberies. in of out further lining the recognition. basis for the Fur The admission thermore, that be prior the is ing by accosted in the store the two armed general error under the rule that such evi men, said, one of them “We want all of admissible, dence is not it is contended money The you time. last time that which admits such evi question us.” lied to The of identity was dence to more identity, establish is vigorously challenged by appellant at trial. applicable appellant not since fully was of In the face attack the addi other evidence. is true general evidence of a prior crime is as a tional evidence which buttressed the iden- State, 1. 20 Am.Jur. 3.Warren v. 178 Tenn. 293. 156 2. Martin, Utah P. 416. State S.W.2d proper fore not Whether The evidence. properly admitted. was tification com- appellant, he had pro- admissions that respect were appellant rights in this crime, in mitted the in fact made were court’s instruction lower tected of fact question absence of free will is they could admonished jury was which objection No to be determined at trial. testimony of consider the propounded to question the was made manner determining the in answers the officer on the that the identification given him elicited the accused were toas admission of The was improper under There inducement. permit which automobile the contents of the by the timely warning as error is cited as owner listed possible rights officer as to his hearsay and in was that such might make. any effect of statements he Assuming excluded. been should have ques- that the The record not does disclose of this deciding, the correctness without erroneously received. tioned was admission contention, nevertheless grounds upsetting the no We find appellant. There prejudicial not judgment of trial court. admitted, evidence, which properly other is therefore affirmed. automobile ownership established the testifying question. Appellant’s brother HENRIOD, J., concurs. behalf, that JJ., the crime concur in WADE and place appellant parked car in the result. when witness police. This was found participation his own had admitted (concurring). CROCKETT, Justice the admission In view of not hearsay could the claimed permit found observe: The I concur upon ap any detrimental have had issued to defendant automobile on the by the achieved pellant had been plate analogous to the license closely *4 his brother. registra- number; the certificate of or to issued in presumably accord- lastly error maintains proper authority. I law with ance court below when by was committed guarantees of to think its trust- po am inclined to the his oral statement such that there was no error are worthiness alleged stems error lice admitted. testimony. agree, I admitting the appellant’s claim that the statement necessary square- that it is not compulsion and was product awas ly deal problem the de- because brother,
fendant’s a witness called as defense, the defendant
drove parked the car and near the scene police. crime where it found
A. Fred Plaintiff an d COMPANY,
FLEMING-FELT a Utah cor poration, Joseph H. Felt and Marie Felt, Appellants. Defendants and
March