*1 39J thе tend- prejudicial error in that remarks seem that discretion as to which method to prejudice in the sympathy and use would abe the ed to create defense to State under statute, prolonging jury. the I am minds Withоut unable to see where of any to observe it is suffice difference should be made if an order fully con- for remarks one over the other by the effect these was made by Commission, ruled when it on sidered the triаl court or the road foreman at the operational motion a new trial. defendant’s level. in the to conclude that
is basis record no In place this case there was no for dis- the trial court its disсretion de- abused give cretion to give adequate not to nying the motion. warning motoring duty to the public. The judgment part The of the trial court af- is of the State to and main- respondents. reasonably tain a adequate firmed. Costs to warning was
absolute, and I am unable to see where dis- cretion is involved. HENRIOD, JJ., TUCKETT concur.
ELLETT, (concurring). CROCKETT, concurs, J., Justice and also con- ELLETT, curs in the excep- I in the decision with J. concur prepared tion : am not the law state
be that “discretion” will excuse liability policy
State from must basic say willing Nor now
decisions. am immunity
that there can be no from liabili-
ty
operation-
at
where
discretion is
al It level. be that the law as stat- is ed, require but the facts of do not this case Utah, Respondent, STATE of Plaintiff given us to so hold. Under evidence could have found there nevеr was Byron SCHULTZ, Appellant. placed berm of the front area where No. 12751. the culvert was Even if a warn- removed. Supreme Court of Utah. constructed, ing originally berm was May 4, 1972. evidence clear the State fаiled to place. maintain it in question immunity
If the rested against
use a berm as scarification of highway, surface then would *2 Ogden, de- Campbell, for W.
Richard appellant. fendant Atty. Gen., Romney, David B. S. Vernon Evans, Attys. Young, Asst. T. William §93 entrapment. ground of The State Gen., City, plaintiff and re- Lake Salt reopen and moved and allowed to spondent. testimony present from further Officer that about weeks before the CROCKETT, Roche two Justice: to, had cident above referred the defendant convicted Byron Schultz It is him four tablets for sold white $8. selling narcotics, the crime significant that on cross-examination con- Municipal Park Ogden committed help cerning willingness to his asserted May He con- 1971.1 thе afternoon addicts, people appear be heroin de- entrapment a victim of he was tends that fendant “occasional- stated so refusing to erred in trial court and that the ly.’’ a matter оf law dismiss so rule as Touching upon conten- the defendant’s charge. tion of he testified: Phillip Roche Ogden City Police Officer Q. happened ap- were What informant, Gary along an undercover proached ? said ? What was the after- park Spangler, went to Gary Spangler A. This wanted to know an- purportedly to contact noon mentioned *3 purchase where he could some her- drug man, be a dealer. known to other oin and he looked me if to as he and defendant approached the Spangler were a heroin addict. I checked So locating help in someone him for asked going arоund. I was to do him a Defend- heroin. sell him some who would favor. I checked around and found shortly thereafter agreed do so and ant to Terry Ebaugh and him if asked Mr. Ebaugh had Terry some one located Gary Spanglеr purchase could some Span- drug. returned to of the heroin from Then I him. made the Roche, from the lat- gler and obtained $20 money, transaction with the because ter, the substance and obtained then went Ebaugh was kind of afraid. it to in turn delivered Ebaugh and from of the Chem- the basis Roche. On He described the conversation with Officer showing milli- analysis, that it was 100 ist’s Roche: material, per cent grams 16.S of whitish Now, Q. you what was said when ar- сodeine,
morphine per defend- and .5 cent rived there? charged. ant and was arrested Well, Spangler A. told him that could presentation get of the State’s some heroin After for him then and gave money. on the defendant moved dismissal Roche me the (8),
1. In violation
Sec. 58-13a 14
U.C.A. 1953.
you
?
Q. How much did he
On
of the
basis
evidence as
above,
summarized
opinion
is our
Twenty Dollars.
A.
correctly
the trial court
viewed the situa
by
tion disclosed
presenting
evidence as
him,
anything?
if
Q.
tell
What
jury question.
Accordingly, in submit
Ebaugh had
Terry
some.
A. That
ting the
properly
case to them he
instruct
go get it.
if
could
asked me
He
ed them that
the defendant would not be
him and
got
it for
Then I went
guilty if the idea to commit the crime did
back.
brought the heroin
originate
not
in his
sug
own mind but was
gested
purpose
for the
entrapping
him
is
The defense
causing
arrest,
only
his
but
if he
preclude
of a
convictiоn
and will
valid
“originally
independently
of the offi
intending
not
to com
one who is
crime if
intended to
cers”
commit the offense.5
by a
induced
persuaded
mit a crime is
having
been shown no basis for
offense
police officer
commit
reversal,6
judgment
verdict and
is
have committed.2
would not otherwise
affirmed. No costs awarded.
entrapment de
there
such
Whether
upon
as
pends
what the evidence shows
CALLISTER,
J., and
C.
TUCKETT and
facts;
as are
and it is
determined
to be
ELLETT, JJT.,concur.
clear that
fact.
If it is so
other issues of
way,
all reasonable minds must find
HENRIOD,
(dissenting).
Justice
rule as a matter
then the trial court 'should
jury.3
from
only
of law
take
issue
I dissent. The main
talks
in the evi
Conversely,
entrapment.
there is a basis
ignores
question
if
It
about
could
upon
agency,
major
ap-
minds
dence
reasonable
issues
—one
differ,
peal.
then
determination should be
the court for аn in-
Schultz asked
jury.4
relationship
po-
made
struction
with the
his
Robinson,
City
Pacheco,
P.
40 Utah
5.
13 Utah 2d
2.
Salt Lake
Wright,
125 P.
In Re
68 Nev.
494.
324,
serious have been I am convinced that here, the defendant understandable, very simple, avoided a under the facts opinion, recited in the main instruction, fair and not innocuous at all should trial, have a appropriate new with case, apropos irrelevant in quite but given, instructions having any to do with here, the matter prejudiciality agency of looms relationship may have had with large, liberty long since a man’s a for such purchaser seller, real the real and/or hangs, tag, time price without a in the bal- —with opportunity an for the to de- ance. issue, termine such might make a world of difference as to defendant’s sta- to be authority seems of division seller, purchaser, man, tus as undercover “agency” aspect of these cases.2 possessor simply nutty go-between rule, The equitable sensible my tending being no offense save that of al- expressed v. Smith truistically stupid. (footnote 2), particularly fits facts of the instant where the court
said:
We think that the New York cases the Durham case are сorrect and re- P.2d 496 896 ject only the view that one who acts SAPERSTEIN, Herschel J. Trustee in Bank agent, employee servant or a law of ruptcy Burger-in-the- the Estate purchase enforcement officer in the Round, Inc., Respondent, Plaintiff drugs purposes, narcotic for evidence v. way is in no connected or and who asso- HOLLAND, PASKER, McGILL & ciated the seller and receives no fi- Appellant. sale, single profit from the can nancial No. 12683. selling drugs guilty of the narcotic Supreme Court Utah. enforcement officer is not. law May 4, 1972. Sawyer, Cir., 210 United States v. 3 [See Moses, 3 F.2d United States v.
Cir.,