*1 162 102, 465 389 P.2d Utah 2d 3 279 Ogden City,
rez v. City, Lake Salt 463; Brinkerhoff v. Utah, The Plaintiff and STATE 214, P.2d 211. 2d Utah Respondent, v. persuasive and ar- able and brief In an SINCLAIR, Appellant. Defendant duly appreciative, are which we gument, of we plaintiffs’ counsel contends that should No. 9971. change gen- that rule. The judicially
now Supreme Court of Utah. doctrine, including history this esis and 18, Feb. extensively developments, is ca- recent Lockwood pably by treated Justice Highway Arizona case of Stone
recent 384,
Comm.,
(1963).
With cited, by set reasoning forth
ities persuadfed propriety’
them,
are not
we
rule,
judicially changing
by majority
our sister
adhered
'
Hempod,
J.,C.
dissented.
seq.
Anno. 86 A.L.R.2d
et
See
states.
Utah
always
See
2d
tifies the law. For the reasons
understanding of heretofore decided
set forth the.cases above, we referred to believe that
this .court .change is to be a which would have
if-there public important effect insti
such an their, operations, should
tutions legislature entirely to determine
left
whether, .immunity removed; .should be ,what effective,, agencies;
and as .when extent, any, limitations to what prescribed. ;awarded. costs
.Affirmed-! . !N.o.
<3iCO *2 Hatch, City, Sumner Salt Lake for J. appellant. Gen., Kesler, Atty.
A. Pratt Ronald N. Deputy Atty. Gen., Boyce, City, Salt Lake respondent. for CROCKETT, Justice: Sinclair was convicted murder degree the first of Don L. Foster and jury’s leniency, recommendation of was imprisonment.1 sentenced to life 76-30-4, U.C.A.1953, provides penalty jury (cid:127) Sec. for unless the recommends death leniency. years age, operated who attacking about points are made Sixteen City; Lake home in Salt that she insufficiency nursing conviction, including: perverted appeared to be toward the mas- verdict; errors in justify the evidence to side; masculine affected character evi- culine jury; rulings on instructing appearance mannish-type and wore dence; occurring during improprieties clothes; strong-willed was a in- that she the trial.
dividual, "usually got way”; “King” There called associates. duty accept appeal Oil it is our believing had an a basis for that she have believed facts could relationship with this LaRae unnatural survey an inordinate Peterson whom fairly be drawn whatever inferences concern; attachment therefrom, light in the most favorable extremely jealous Fos- of Don L. therefore the verdict.2 ter, man, carrying on who was married very January 5, early On Peterson; and an illicit affair with LaRae deceased, m., morning, 12:30 a. that she a violent resentment harbored companion, Foster, Don L. and his woman as- him. talked of to her toward She Peterson, LaRae returned from movie *3 ways and com- proposed sociates various parking drove to the lot in the rear of the pelling to leave LaRae Peterson Foster Kay apartments, Sth Susan Arms between her, plan drug alone. included a to These 6th North on 2nd in Salt Lake and West strip in put her “the act” and on Lesbian City, got out on the Foster lived. He where it, which a situation where Foster could see side, turned and to the rear driver’s reached figured up might she break his affair overcoat, he was when shot seat for proposals her her. to two of She also made short-range shotgun blast and killed a associates, Humphries Karl Vaughn and face. the neck and in occasions, Kuehne, separate that the on disguise three of them themselves searching In for a solution to this crime “Danites” catch Foster castrate and and police learned from LaRae Peterson him; put they a knife blade that the defendant had mani- Sinclair Jean to privates threaten to his and castration fest an toward in- animus Foster. Their keeping away LaRae scare him into vestigation revealed further evidence: Peterson. single woman Sinclair a destroy, See Ward, their enemies. lent means to 10 Utah 2d 2. State v. Dictionary, Inter-national Webster’s New 865. tradition, group According Third Edition. folk a to early pledged together use vio- to Utahns ' Peterson, Kuehne, As she son-of-a bitch.” to LaRae talking in In the fall of 1962 to just she “she stated that was there and that language Fos- defendant used violent ter, with, screamed also told Kuehne that “I on.” She culminating think son-of-a many so area that she there were cars ought to killed.” Later she told bitch get had to crawl around them to killing several of Kuehne that she was “serious about position in a to said him if to shoot Kuehne guy” and he would like Foster. asked that he $500; make a recalled that her trench coat fast also made several “smudged with a and proposals killing other bit dirt.” grease Kuehne about to accessory, Foster, She told Kuehne that an which he refused. con- he was After his fact, finally both even before after the and twice tinued refusal she told him that and they him that if he didn’t to kill Foster could warned he had better rid of want friends; gun. day gun kill The next still be and if he wouldn’t Kuehne took Foster, up They nearby canyon together drove shells and threw would. places away. around to several At look over where the time were the officers investigating, they likely be at it had Foster was to certain times snowed and were opportun- gun which unable find present good shells from thus description. days ity carry plan out kill Kuehne’s But Sinclair some there- after, melted, they him. after the snow had were found under direction. 28, 1962,using On or about December pretext shotgun she wanted to shoot Although question there can be no pheasants Sandy, the farm at de- some that the evidence of this crime as recited buy got 12-gauge fendant above is sufficient sustain the conviction January 4, shotgun and shells. On some murder, degree of first defendant attacks crime, evening before Sinclair ground: that the crime as thus shotgun brought the to Kuehne’s home and very large delineated is based to a extent barrel, him to off the asked saw Kuehne; Karl gun home with did. She left his if it committed manner the State p. shells about 11 m. She was dressed contends, accomplice; he must boots, gray pants, had on men’s independent is no evidence there of his gun. wrapped a tan trench coat around the *4 connecting testimony her with crime. m., 5, January (which
At accomplice about Whether fact an 1:00 a. question jury, would be after Foster was a for the will about one-half hour be seen below, purpose killed) treating to but for the returned of contention, In their we assume shotgun. Kuehne’s home that Kuehne was with stated, “Well, accomplice. conversation I killed an she 166 accomplice impassioned attachment to her such recognize that an
We falsify that she to of Foster because of resentment wanted may motivated to a be to violence to rid of his else in connection resort fiendish to blame someone desire obtaining rivalry hope In crime; of favors.7 addition in the with the or is in very he these and that defendant known leniency; fact that facts or impair Kuehne, with there may tend to to associate are certain in crime volved by independent look credibility. justify other facts also shown evi- combine These dence, testimony reciting caution we deferred un- ing upon with which rest permit til the treatment of this contention. These refusing to conviction a alone, provides.4 statute his word as our are: that the defendant made statement of presence the refinements We are also of wife aware Kuehne’s that if fast, money evidence that the corroborative wanted rule to make some it would crime only (which shows that sufficient take a few tends to seconds committed, the circumstances story has been or corroborate Kuehne’s offers thereof, money a motive kill Foster); accused that she was seen no one However, though driving him; even commit it.5 around in a with car they sufficient, are January alone 4 learned these would afternoon of she had may all be telephone each material and with LaRae relevant and conversation determining whether with together in Peterson that the be out considered latter would there Foster evening; is met: knew test of corroboration enough rea- evidence, independent their to have association they reason son to accomplice, believe that would which apartment, which ably implicate returning and connect to Foster’s believe tends to provide opportunity commission with the defendant with the crime.6 seeking. witnesses There is evidence from Williams, A LaMar B. bearing the facts than Kuehne out
other Kay apartments was at Arms the Susan unnatural relation concerning defendant’s midnight he shortly Peterson; testified that after ship that she had with LaRae may be 77-31-18, factor motive 7.That 4. U.C.A.1953. Sec. Somers, other evi- Ibid; connection considered v. 97 Uth and see State tending accused with (motive to connect 132, insufficient dence alone P.2d 273 90 Somers, footnote corroboration); Vigil, v. See State the crime. v. 123 Utah State above; (mere suspicion 812 § C.J.S. Criminal Law in 23 5 P.2d 539 corroboration). (4). sufficient Clark, 2d 3 Utah State 6. See there cited. and cases
107 cars, grease that there dirt on- as he described person, whom observed clothing.) Sinclair, and dressed resembling Jean wearing, in those she was clothes similar to may There another fact which be is re-' parking Foster area near where garded inculpatory: upon question- as happen- killed, just a minutes before it few ing, having denied defendant ever accepted as (This ed. could have Kay apartments, yet at the Susan Arms placing the at the defendant scene Combee, Gerritadina testified that very com- crime the time it was close to days earlier, some few about Christmas mitted.) time, Sinclair, seen dressed in clothes, apartments men’s at those in about witness, Boyd Harvey, Another K. the same area the killing. as driving by the time heard a shot at way person, and saw a dressed similar to the may It well be that certain of the (with on) a trench run defendant was coat evidence, foregoing facets of con apartment into from the Sth North Street separately, regarded sidered could be as not carrying object extending 18 to inculpatory and thus be vulnerable to de right (which inches hand above the could charge fendant’s that it not connect does shotgun), have been the sawed-off well with the crime. But that is neither the away. into car a two-toned which drove practical approach sensible nor the to the (The general owned car of this defendant problem. require Nor does the law description.) separate bits of evidence be viewed in neighbors, Mr. Two and Mrs. Pieter great many A planned isolation. crimes are Combee, immediately who reside west of the to be secret, committed stealth and as just Kay apartments, Susan Arms after necessary this one was. It proper Peterson, woman, shooting heard the LaRae fragments proof whatever take can out, cry God, “Oh killed him.” piece be together found and in con It morning junction was shown after with the reasonable inferences to killing three-quarter defendant took be drawn therefrom in to fill in order length slacks, trench cog coat and some similar whole mosaic of the We are crime. night, wearing language clothes she was nizant our statute uses them, grease which had spots and dirt on aid “without the (This up accomplice” a cleaners. fact with the that it been said that connects has the defendant had around evidence be to crawl the corroborative looked Jones, presence tlie That defendant at see State orative crime, together 341; Warren, place of near the time and Mont. 26 P.2d 4 . may regarded Homicide, motive, with as corrob- Sec. 27 it testimony.9 When this done seems undoubted apart separate and at accepted by minds reasonable there is determine whether true to That probative value evidence of substance and tends independent evidence which some tending to connect the defendant with crime. But connect requirement This crime. satisfies the can that the evidence also true it is the law.10 relates to relevancy the crime *6 surrounding it. circumstances the urges Defendant errors in connec charge the tion with to the propriety jury which and Conceding the wisdom devolve refusal to instruct as testimony an ac a matter of wary being of of of law that Kuehne accomplice. was an conviction permitting a complice, and of properly This have nevertheless, only it, reason done solely upon to rest that fact established exigencies of a without dis practical dictates pute. Two factors combine of the as an require all obstacle may that well situation doing One is to so here. that the defendant together in order be viewed circumstances herself as witness denied the example: wit facts which For to the facts. determine have accomplice would made Kuehne an He coming the woods. X nesses see crime. The other to the is that in blood. his own is with and smeared a knife has testimony protested his in be alone, innocence could well this Considered any participation in of it. He But claimed a deer. that may He killed have nocent. he refused to be in killing involved Foster, man, recently killed stab body though even money; offered substantial accomplice to nearby. bing, found An is that he tried to talk the defendant out X did it. It he and murder states that him; got gun resolve to kill that he were that the observations obvious for pretext on her that she wanted of the place X near the time made of it to it pheasants; shoot he and that sawed murder, later- light of the considered illegal off and her that was advised then signifi facts, take a different discovered possess to thought with reasonably regarded be cance and could gun would force of the her to rid The X tending with the crime. to connect abandon the killing idea of Foster. Wheth applies case. reasoning to the instant same explanations credible, er Or are those are con evidence should be The corroborative flimsy merely excuses, jury for the other facts shown. sidered relation above; supra. in footnote Clark, 10. cases cited See footnote v. State 9. See above; Vigil, v. footnote 5 State Erwin, 101 Utah State “Why you complaint have a didn’t the fact that the But in view of determine. Kuehne, against Mr. Mr. Dib- and Kuehne filed both dispute accomplice, blee?” an he was prov- invading the court would have been important in mind keep It credibility jury judging ince of the filing such a determining charge whether if it finding the facts witnesses necessary justified, it would presumed that Kuehne was tell evidence, excluding Kuehne’s consider the accomplice11 an story testimony, given, including police, to the insisted in both difficulty instructing Another readily doing so it is innocence. In accomplice,
jury that where Kuehne was seen problem as to whether there is a matter, dispute there was the evidence would have here disclosed conveyed doing may so well justified charge. filing such a Therefore at least the idea that the court believed question propounded con- would involve story aspects those which involved of his sideration legal reasoning of the crime; him in the commission attorney; perhaps the tactics to be if the court that much of his testi- credited employed prosecution in handling the mony, may have carried over this credit well Ordinarily murder. whether someone *7 aspects of to those version the crime of his else has charged been with the instant relating involvement. to the defendant’s offense is indeed immaterial to the issue as considerations, ap- foregoing the From guilt to the or of innocence pears the trial court was well to us is on trial. of The issue concern here deciding not in to instruct advised guilt was not Kuehne’s or innocence but the accomplice, properly was an defendant’s. It to he also noted that telling jury, the left the matter to them that defense counsel did not disclose to the accomplice, they if he was an believed purpose court the question, of the nor make testimony must corroborated under the any proof offer concerning of the matter. discussed, they rule hereinabove before Nor did he ask prom- the witness whether a could convict the defendant. immunity ise of prosecution
made to We not Kuehne. do think that the charges prejudicial The defendant court prejudicial committed error to the objection sustaining in ques- error to a sustaining objection in defendant the county deputy question of a attorney: why tion asked deputy county as to this attor- something dispute error, Fertig, 11. Tliat to instruct is true which is in State see 120Utah McDonough, prosecution against callister not ney had instituted WADE, JJ., concur. witness Kuehne. the find without have considered and We HENRIOD, (dissenting) Chief : rulings Justice in other claimed errors
merit various evidence; alleged and also number of sharing jury’s in I hesitate verdict improprieties in the conduct of the attor- pointed the evidence result witnesses, jurors spectators talk- neys, beyond doubt, any reached reasonable other, exchanging greetings, ing to each impelled quantum this hesitation is spectator hands, soliciting and a shaking quality adduced, of the of some evidence Considering fact that .autographs. this a lot of which seemed have been of an great public deal attracted a of atten- trial unsavory complexion. of Because tion, and that it lasted three hesitancy I feel constrained think that in weeks,-it strange indeed some accused, resolving in doubts favor of an perfect of short decorum had incidents not -must, hearing, merits another we this case occurred, particularly short.of-what defense point doing, I In so I would hence dissent. It agreed now demands.» counsel only a of the testi- portion voluminous out gome complained may the conduct of of not mony adduced, quality as illustrative exemplary, and that those in- it, lack of such capacity an official trial volved my atmosphere to have created unusual familiarity any beyond avoid should discreet speak. I of which mind hesitation civility parties, witr and reserved with the jurors. nesses opinion without I am testimony “star” State’s requires statute', which Under our have been insufficient evidence there would essentiál not affect the do that errors which reason- justify beyond conviction all disregarded,12 we parties be .rights of the testimony witness’ were doubt. able If jury’s properly interfere expunged, this court could not I think whole upon a review verdict unless verdict, I am con- and so far as affirm was error appear that there it should case cerned, indulged by the fantasy witness gravity that the defendant’s sufficient his entire me believe leads substantial rights prejudiced some were disbelief, subject of any have been nothing way.13 have found We *8 name, rank his consequence except here. attested to such number, last' which was 'serial costs awarded. Affirmed. No —the Siddoway, 61 Utah 77-42-1, 13. See State v. U.C.A.1953. 12. Sec. P. 968. fantasy beard, connotes to this writer The witness an exconvict. his number as a com- and weird unbelievable about as companion of the accused had been an auto ap- Wonderland, Alice, in mentary by once, seems of which purpose more than of Oz. praising con- the Wizard by silence to have been accentuated accessory clearly was an cerning He it. dismay the did not Shaving off the beard His before, the fact. after and between picked when, the bloodhounds once spun stand novel on the witness narrative scent, up obligingly and cleanshaven- he possibility story pointing at best a peace in a near- ly grave officers to a led principalship. complicity his own by canyon, apparently thought he where interred, permanently gun offering him He told of the defendant appropriate rites, overlooking possibil- — in the money adjust the victim’s status ity of exhumation. community him those less among to number he de- Significantly fortunate than we. why him Someone asked he shaved off his suggestion, reflecting ignoble clined the thus reply beard. The convenient was that Thereafter, lack of unlawful intentions. being suspicion lively suspect under as a buy testified, him to he the accused asked himself, expose the hair him to would by shotgun, unlawfully her a which he did removal, conceded, detection. Its he alias,' apparently the use in Beelzi- — provide disguise a sartorial and an insur- bubian retreat from his erstwhile honorable policy against apprehension, ance novel —a said, Further, he the accused intentions. departure from the characteristics two, weapon asked him to saw the lethal reasonable, prudent ordinary man and the obligingly explanation which he did. His cinema version of the dagger cloak and he did this and told the defend- routine. ant it unlawful for her to have sample The above is of some of the possession, sage in her admonition testimony and that is matched committing would deter her from an intend- quality, other evidence of similar all of mayhem. allegedly ed He said this but he which, aggregate, my adds to hesi- requested. also sawed as
tancy believing that the rule in this and previous His felonious brush with the that one other cases must be convicted be- uniform, purchase doubt, yond blue his unlawful all properly reasonable accused, here, willing delivery applied gun, his of it to the since I am convinced that who, hoped, would mothball it after without the of the “star” witness her, friendly above, given jury hardly and his later mentioned counsel could! disposal weapon, arrived at the verdict. *9 fantasy
So, flag of unfurled shotgun may without which the found, explained, origin been
never have its convicted, simply wonder I accused hearing not a should be
whether or new
afforded, in favor and resolve doubt such person.
of an accused It must gave credence to such tissue else, my opinion, my
paper also,
opinion any there not have been produce any strong, spot- woven to
raiment conviction,
less, which, untorn cloth of all of stated, wonder, I makes me —thus
dissent.
Calvin Appellant, COMPANY, and WAREHOUSE
CORNWALL James, Respond Defendants Ernest Appellants. ents, and Cross
No. 9921.
Supreme Court of Utah.
Feb.