*1 way open guard against the dis- question However, agree I not do excepted charge of debts the character money of or obtained of whether discharge justify. if the facts pretenses nothing with from so “has to do false subject action.” of the instant presume the I lower court will at of, Bankruptcy the Federal make a determination of 17a(2) Section of discharge party pretenses, if either cares false and provides Act in substance or bankrupt appeal determination, from from that bankruptcy release a final shall it may for do except such as liabilities so. his debts pre- obtaining money property by false or yet neither defendant has
tenses. While bankruptcy, petition in
filed a it is wise the trial make
a creditor have proper
finding
pretenses
of
in a
case.
false
that in
bank-
The reason for
case of
P.2d 392
pre-
ruptcy the
cannot
false
creditor
show
Utah,
Respondent,
except
and
discharge is
of
Plaintiff
tenses when
claimed
STATE
by the record
judgment
rendered
judgment
See an-
RENZO,
Appellant.
which the
based.
Tony
Defendant
p.
also
A.L.R. at
374. See
notation
No. 11038.
Company
Provo v.
Finance
National
Supreme
of Utah.
Court
Daley, 14
2d
In our justice to orderly processes respon- to bear the
require plaintiff claiming proving
sibility pleading,
the full benefit whatever character original possesses in the
cause action he thereby, than being bound
action upon the cause another trial same
to allow raising could
of action issues which original action.
been dealt with purposes
This rule also serves
bankruptcy at the time leaves act and same *2 McRae, City, de-
Hatch & Salt Lake for appellant. fendant and Hansen, Gen., Atty. LeRoy L. Phil S. Axland, Gen., City, Atty. Asst. Lake Salt plaintiff respondent. for ELLETT, Justice: was convicted By manslaughter. voluntary the crime of 20, 1967, prison April An filed from information was appeal he seeks his this release charging with the crime of did not have a claims he because he degree. murder in first ar- trial; He was and should he fail to convince raigned April 24, 1967, claim, and filed motion asks that his convic- court of that plea guilty. dismiss gruesome pic- of not because two and entered tion be reversed Hearing on the motion to was set entered into evidence. dismiss tures were May 4, hearing Prior mo- for 1967. sexually muti- Magera was One Bertha tion, the district court discontinued the February 1965. The lated and killed on hearing argument bond. After coun- charg- day appellant arrested and next sel, judge the trial to dis- denied the motion Preliminary first-degree ed with murder. miss set the case June begun April 1, hearing was question posed The first this: Was de- 5,May time until continued from time to speedy public fendant denied a trial in vio- committing magistrate for when lation of the Sixth Amendment to the Fed- discharged reasons known himself best through as enforced eral Constitution the defendant. Fourteenth Amendment that document? attorney convinced that district solely This amendment enacted com- magistrate discharging had erred *3 pel grant speedy trials Federal Courts to appellant evidence was suffi- and that the prisoners; same to Federal but since the murder; cient convict the defendant to rights Art. of the defendant are assured busy extremely with he was but because I, 12, Constitution, we of the Utah will Sec. a matters before appearances and delay. decide unreasonable his claim of cause another grand jury, neglected he to De- until complaint to be in the matter filed under It should be noted that appellant 1966,at time the 28, cember which limitation is Utah law there no statute first-degree again charged murder with for murder must prosecution within which a a Magera released on of Bertha and was 77-9-1, be commenced. U.C.A.1953. Sec. $2,500 bond. protection constitutional afforded one The speedy application has to a relative trial preliminary hearing was March A held is instituted. See prosecution after until a 1967, 24, appellant moved 23 at 562, States, Cir., F.2d 8 290 Foley v. United 1967, 7, April complaint. On to dismiss 139, 888, 7 L.Ed. 82 cert. den. U.S. S.Ct. 368 magistrate the motion overruled holding prosecution (1961), 2d 88 appellant the district court bound over to or an is returned until indictment instituted charge trial as contained on the State v. also an information is filed. See complaint. 208
Enriquez, memory 102 Ariz. 430 P.2d of those who lived have has (1967), it is become dimmer and that he has been where held: prejudiced by delay. This, says, he contends he
The defendant
was.
notwithstanding
is true
that he took no
speedy
of con-
denied a
violation
require
against
action to
him
the case
guarantees.
stitutional
The motion to
brought
be
on for
The
trial.
de-
grounds
dismiss the case on
that there
contends
was an unreasonable
only
speedy
nial of
was addressed
delay both in the interval between the
elapsed
the time
the defend-
between
commission of the offenses and the in-
ant’s arrest and the time that he was
dictment,
lapse
of time between
superior
trial.
bound over to the
court for
right
the indictment and the
The
trial.
,We
stated,
firmly
“The rule is
speedy trial,
guaranteed by
protection af-
etablished
[sic]
implemented
Sixth Amendment
Arizona
forded
Art.
24 of the
§
Rule 48(b), Fed.Rules
Crim.Proc.
by the Sixth Amendment
Constitution and
U.S.C.A.,
has
does not arise until there
Constitu
under
United States
information,
been an indictment
or
trial,
application
speedy
tion
has no
applicable
statute
limitations
con-
or
prosecution
until after a
is commenced
trolling as to the time within which an
is held to answer.”
accused
[Citations
*
* *
indictment
information must
omitted]
[D]efendant
brought.
[Emphasis added.]
liberty
during the interval be-
on bond
.
preliminary
his
tween
arrest and the
State,
In the case of
Kan.
Witt
showing
hearing, and there has been no
(1966),
416 P.2d
defendant was
prejudice
has
the defend-
resulted to
jail
days prior
being
held in
for 20
taken
delays.
ant from the
magistrate.
before the committing
In a
subsequent proceeding he claimed failure to
Cir.,
States,
v. United
Bruce
speedy
have a
trial. The court said at
F.2d
following
state-
722 of 416 P.2d:
of the law is ’made:
ment
early
petitioner
The 'indictments were returned
that his
first contends
rights
acts which the Govern-
constitutional
were violated in that
charged
ment
as criminal
took
offenses
did not have a
trial in accord-
place in the summer
ance
of 1952.
cases
10 of the
Con-
Article
Kansas
*4
in
1963.
stitution and the
Amendment
Sixth
.were'tried
June
Constitution,
.the-
makes
contention that he has been
United States
and that
.
right
speedy
his.
denied
constitutional
K.S.A. 62-602 was
in that he
violated
trial, :that,
examining mag-
witnesses have died and
was not taken before an
his
twenty-
attorney
forthwith,
being a
wherein
district
told the de-
istrate
there
orally
ar-
letter that he did not
day
between the time he was
fendant
interval
prosecute
before
intend to
the matter and would
rested and the time he was taken
years
alleged
examining magistrate.
dismiss it.
after the
an
Seven
[*]
[*]
[*]
[*]
[*]
[*]
crime was
committed,
the defendant was
delay
bringing
Undue
one accused
tried
convicted. He claimed he was
trial,
thor-
magistrate
speedy
of crime before a
denied a
said
court
State,
oughly
Cooper
196 at
considered in
v.
819 of
F.2d:
there
Kan.
“The of a trial con- delay complain. and therefore cannot tained in Section 10 of the Bill of [Citations omitted.] Rights of the Kansas Constitution does Appeals, The United States Court of preliminary not refer to the examina- Circuit, Eighth in Davidson v. United tion, but rather tb the trial held after States, 312 F.2d answer- in- an indictment is returned or an trial, ing speedy a claim of lack of said: filed, formation is and at. which the guilt de- issue or innocence is to be bring The failure to the defendant to termined.” promptly certainly more would may delay warrant convic- though Even there be a be- invalidation of his trial, speedy the time information or tion. If a defendant wants a tween when an duty Phillips ask indictment is filed and the trial of the is his for it. 262; Cir., matter, States, claim that his United 201 F. a defendant cannot Cir., Woodrough, F.2d trial has Frankel v. constitutional delay “purposeful A which is not been violated unless asks court to oppressive” In this connection see is not violative grant him trial. Cir., States, right of a defendant to a Pietch v. United constitutional case of States, 563, (1940), speedy trial. 129 A.L.R. v. United 110 F.2d Pollard *5 210 354, 361, 481, 485, different, tirely 1 ap- U.S. L. and less favorable S.Ct case, pellant,
Ed.2d 393.
from those in the Smith
points
where the dissent
out that Smith
O’Leary,
the
In
case of State
v.
N.J.
speedy
had made demands for a
104,
majority held: of this court (1926), complaint P. 119 filed was “Defendants had under the never against September 27, guaranty constitutional of a 1922. The defendant held was to answer to have an indictment charge, and an information filed was dismissed; they merely apply could November 1922. The defendant filed day the court to fix a certain and on suppress a motion to evidence. The trial proceed failure of the State to granted motion, court and the defend- discharged could on their re- own stipulated ant State to continue the cognizance acquittal judgment or a Nothing case for the term. further was (10 page 93, entered.” at A.2d N.J. done in the matter until second term of page 408). thereafter, prosecutor when O’Leary application made no to have a charge against moved to dismiss defendant, date fixed for trial did he make nor ever granted which motion was single court, disposed move to have his case the trial and the defendant re- was Thus, judice leased, of. facts sub en- and his bondsmen were exonerated. December, complaint filing complaint another months before a second against charging against filed him as him. It been useless the defendant would have immediately to the Again before. was bound over to have a second com- filed plaint magistrate district a second the same who had court and information before against just filed iden- him December released accused. The prior except tical date during to the a free man all interim be- one attempts on which it drawn. Defendant then tween two to have him held *6 appeared the court the to the charge, and to dismiss to answer and we do not see moved discharge prejudiced by delay information and to and release how he the in the was the custody. filing complaint. motion the defendant from of second findWe denied, was the assignment. and trial the defendant no error to this at appeal guilty. was found He claimed on prejudice to the As claim of because speedy that he a This given was not trial. pictures gruesome of being introduced in at Reports, court at Utah evidence, it must be remembered the page 120 of 248 P. said: plea guilty defendant had entered a of not It was is also contended that defendant thereby upon and cast the the burden State given public not does speedy a trial. It prove beyond every a reasonable doubt appear not re- any time defendant element charged. of crime quested in- or asked for Our statute defines in the murder first original action. formation filed * * * degree as follows: that the fact defendant * * * right Every to ask for and have a trial perpetrated by murder any action before the term greatly dismissal of the act dangerous to the lives of September, court in avail depraved mind, cannot others and evidencing a action, him in the present regardless life; if the dismissal of human murder —is discharge degree. not a final of the defendant. [Emphasis first may A 76-30-3, a criminal action U.C.A. added.] [Sec. 1953.] speedy waive to a He his trial. victim this case a woman. was cannot remain inactive and afterwards body, Her and particularly thighs, hips, complain given that he has not been buttocks, severely were bruised and interpose de- that as a violence, showed evidence of much such ** * [Emphasis fense. added.] by extremely would be caused kick- forceful In ing. fractured, the case now before chest this. Her wall was and she we are inability asked criminal free to set because because of to breathe. died attorney prosecuting addition, vagina waited some walls of her showed jurors inflammatory, the minds of perforated having been
evidence not so prejudiced thereby. We do bamboo were as a jagged instrument such some testi- appraise them. While the doctor in the house with pole was found wounds, descriptive upon the fied terms hair he blood and what looked to photographs gave the a visual end of it. testimony. It must be explanation his showing the pictures taken were Colored standing remembered autopsy At the described. conditions above photo- plea guilty his of not when re- as to spread vagina so doctor put graphs The state was were admitted. violence, the internal evidence of veal the ele- proving the essential task of thereof. picture was taken and a colored the de- ments of the crime. Whether in evidence pictures admitted These fatally injured an issue ceased was part depraved on the mind show a jury. The extent to be determined perpetrator of the crime. atrocity and nature of the wound in evidence admitted While questions. material of the crime also were improper might be to show outside Clearly, photographs, though cumula- courtroom, mute evidence afforded tive, the doctor’s served to corroborate depravity killed one who testimony and were admissible for rel- victim. This evidence was material purpose. The ad- omitted.] [Citations incompetent It because evant. largely in photographs rests mission *7 every might gruesome, practically and be the discretion of the trial and ordi- court sampling A Union has so held. State narily his decision will not be disturbed. listed of cases from the various states is say cannot abused its dis- We below. cretion. Bucanis, 45, Johnson,
In the
N.M.
138
case of State v.
57
State
26
In
v.
N.J.
page
picture
(1953),
(1958),
In State v. La. his wife. He claimed Supreme Louisiana it So.2d the was reversible error pic- to admit four had the Court before it same tures the showing deceased the wound presented that in the instant portion and that upper case. chest the page said at of 62 So.2d: and left away forearm had been blown by the gun. blast the State offered picture was tendered the exhibit that the theory loca- the testimony in connection with the of Dr. tion of the wound showed that defendant after it iden- Wallace Clark had been consciously acted and took accurate aim person the tified him as that of firing gun. when The Missouri Su- upon performed autopsy. whom he preme correctly Court at sets And, offered, when it was defense language: forth the object following law counsel did not at first on the ground gruesome. it On the was admissibility The rule as contrary, he claimed that it inad- was this sort of visual evidence is set- well of Dr. missible because identification tled. Demonstrative evidence of incomplete Clark was as the state had character admissible if it tends “ * * * body proved who had the crime, connect the or accused with barge from the time it left until deceased, prove identity of the up morgue.” it showed wound, show the nature or throw
But, this, any light upon mat- photograph aside from relevant a material clearly ter De- admissible for at issue. identification omitted.] [Citations - purposes and also in fendant concedes that the admission of corroboration of procés largely ref- Coroner’s verbal this sort of evidence is within court, description but wounds the discretion erence to Albeit, court, admitting cause that the death. we contends discretion, saying exhibits, reiterate our suc- the views abused its adherence cinctly expressed unnecessary Johnson, photographs State v. 556, that, 195, 3 198 La. So.2d where have been excluded because should photographs deceased, position admissible, identity “the the fact they' gruesome are so body nature of the wounds prejudice exactly precisely tend to estab- is not a valid been rejecting reason for them in lished evidence.” evidence. other * * * [Emphasis added.] there Even if we assume that Moore, State v. all of facts (Mo. S.W.2d 60 evidence the material 1957), prosecuted not, photographs the defendant does for: shown *9 ' * * * deceased, pictures The of the the exhibits were inadmissible. that . follow 1242, showing her Mo. 'taken after her death Tyson, 363 In State v. wounds, Even 651, clearly this state- admissible. 654[4], find were we S.W.2d the kill- application though of the the defendant did admit relating to the ment kill objection ing, that did intent he not admit to “It is not a valid rule: may be to matters and the nature the wounds testified of witnesses have point. pictures pictures material that by photographs on shown because many more impression of the nature of the wounds give a much clearer showed clearly testimony any description and than the of witnesses things than oral them.” could. using for that is the reason omitted.] [Citation picture may The fact that a be had Supreme has also Court Our own gruesome excluding it is no reason for case of State this before in the matter competent from evidence if it is otherwise (1923). Woods, 397, 220 P. 62 Utah
v. and relevant. It is a matter of discretion evidence into In that the admission case judge with the trial determine to whether body of picture of burned of probative picture out value of the by this approved wife was defendant’s weighs possible adverse effect which Russell, 106 Utah court. In v. State might to produced being shown ad- the trial court P.2d jury. Law Criminal § C.J.S. pictures the de- into of mitted evidence 852(l)c. part of This discretion on reversed Although that case was ceased. judge reject a trial admit or evidence approved the grounds, this court other ap should not be interfered with using reception pictures, the follow- of the pellate manifest error court unless of the language paragraph last ing opinion: shown.1 judge Poe, 2d 21 Utah otherwise is but confuse the case State recently nugatory decided, the statute which and render 441 P.2d penalty provides majority for murder it to be an this court held death degree jury part does no1 of the where the discretion on the first abuse of leniency. judge admit into evidence colored recommend concurring opinion is stated: cranium with In the of the victim’s verdict In that case the “In Poe case there was brains removed. penalty the deceased as to whether that the death whatever such ”* * * kill, mandatory. I intent It the case shot with is doubtful fact, jury to be a for been reversed do not understand would have leniency. plea, guilty the defend- of not recommended under its verdict pre- However, judge favorable the admissibil was entitled to all we cannot ant sumptions, example, as, ity rendered. evidence the verdict such suicide, self-defense, not ad from admissible or death resulted Evidence either passion, killing, etc. it is To hold accidental heat at the time offered. missible receiving pictures in case As to evidence: justify evidence would opinion correctly points The main perpetrator crime out
a belief that competent probative stomped and kicked woman victim facts, or after death of essential would suf- death and that either before seem However, dispose ficient to large pole into that issue. inserted bamboo victim, vagina causing great deal inasmuch as reference is made to the Poe, recent 2d ripping tearing the tissues. case of State v. 21 Utah possible ap- 441 P.2d and its the defendant found plication here, explanation some further voluntary guilty the included offense of justified. seems manslaughter upon evidence which was *10 question admissibility of of evidence find sufficient to verdict. sustain We the upon dependent, among things, is other that the court no merit to the contention dispute upon proof the issues and in pictures receiving erred in the in evidence required. a regard is In that there is complained about.. vital difference the case and between Poe af- judgment 'The of the the there instant one. In the Poe case firmed. question was no as to whatever whether kill, the deceased was shot with intent to TUCKETT, J., concurs. nor as he shot. to where or how CROCKETT, (concur- Chief defendant was whether the Justice ring) : shot him. The as to and facts where only how the deceased was shot were not affirming conviction, I concur in the uncontested, amply but illustrated were following but desire to make the com- pictures certain black and taken at white ments about the two issues raised: prosecution But the scene. went be- As being given defendant not yond any necessity proof of and introduced (1) charged trial: After he was the offending relating to colored slides arraigned and in this there inwas case something quite separate apart and from fact delay; no unusual or unreasonable crime, and which the had (2) there is no indication he asked that nothing gory to do causing: with any speedier got; than and procedures (3) pathologist. there as Insofar' no indication that he was any way in prejudiced by delay. see, the writer can they formed neces- prosecution negative all of tures in the Poe ease were do intended to possibilities, just these in order to establish that. degree, pic-
murder first in that in disputed issue any opinion, authorities cited in main sary proof purpose, probative they proof lack of where are essential to the case. This disputed issues, they here, was a the fact there as (cid:127)coupled were they would likelihood mere fact are offensive to sen- (cid:127)definite brutality suggesting in effect sibilities should not make them inadmis- Woods, provoking particularly resentment thus and sible. See State v. (cid:127)crime inflaming passions 215; Utah 220 P. Rus- and State v. in- accused, sell, against (which 1003; likelihood Utah 145 P.2d State, borne out cidentally appears to have been also discussion in McKee v. see 33 Ala.App. verdict), led us to believe So.2d and au- prejudicial error to thorities therein cited. admit in the Poe case. forth, For the reasons above set I con- holding cur in the cir- that under case way In the instant
By of contrast: receiving pic- cumstances in this case situa- dramatically there different error, tures in evidence was and in a result The death came about as tion. affirming the conviction. drinking fighting and orgy There great physical deal of violence. CALLISTER, J., in the con- concurs there questions were critical as to whether curring opinion CROCKETT, C. any kill, and as to had been intent J. pic- issues cause death. On those HENRIOD, (concurring part pro- objected
tures case Justice dissenting part) : committed bative to acts defend- victim. ant concur, qualification I without *11 opinion’s main reasons and authorities' agreed pictures which It must be that anent the cited trial issue. may provoke antipathy the accused against care particular looked at with should be Consistency requires to dissent as me in has murder cases all because in pictures being admitted the colored guilt major two issues determine: permitting think their I evidence. defendant, guilty, whether and if objection strong defense admission over life im- death or have should suffer I must concede that the was error. prisonment. pictures And such should have did’ not court at the time proof him, be are essential Poe,1 admitted unless our decision in State before therein, represented However, set forth or the dissent disputed issues. as on —which 4, 1968. 21 Utah 2d P.2d 542. June conflicting philosophies admissibility woman, as to been a colored picture, a colored thought I pointed up such evidence. colored would not grue- have such pictures Also, in the Poe case so. to have been someness. had ten cameramen shocking inflammatory simultaneously to offend- pictures taken of this wom- against an, relating get gambler American tradition five would ten if it fair To could pictures trials. be consistent I must dis- be demonstrated that all the here, there, sent where I for had tint, concurred taken the same color and hue.. very simple personally reason that J might suggest Someone there awas dif- grue- think the here be more ference in the case, person Poe since the repulsive some than those in the Poe taking picture took it after a third case. person had cut half of deceased’s head may suggest Someone is a there off homicide, whereas in the after difference here where defendant was con- instant picture case the taken after manslaughter, victed of does not anybody death but fooled around before involve shooting hanging, whereas in with the quite torso. distinction is death., the Poe case faced fatuous, since the Poe case went off on' logic There can urging in that such ground inadmissibility because of1 circumstances, e., degree punishment, i. gruesomeness, logic applies and the same has any relation to the rules admis- here, where, opinion in my gruesome- sibility evidence, both cases —and grew ness some in instant case. subject to the same rule. Mr. Chief Crockett’s concurrence Justice saying this I do not contend here seems to be an departure inconsistent pictures per colored se are inadmissible from his concurrence in I State v. Poe. evidence, say but I pic- do that colored majority would invite those to in- tures, cases, particular portray can picture decision, pub- clude the scenes in an atmosphere setting lication, color, Reporter. in the Pacific do not reality, being reflect true much — about, more the deception vehicle case, than the No matter how we feel black and I ones. am sure that white fairness the man should another if the murdered woman in stereoscope. this case trial sans colored