Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 4419.

Attorney(S)

J.H. Erickson, of Richfield, for appellant. Harvey H. Cluff, Atty. Gen., and L.A. Miner, Asst. Atty. Gen., for the State.

Judges

GIDEON, C.J.

See more information ...

Smart Summary

State v. Anderson, No. 4419 (Supreme Court of Utah, Nov. 23, 1926) — Summary

Factual and Procedural Background

Willard Anderson was convicted in the Sixth District Court, Sevier County, of grand larceny (charged with unlawfully taking 86 head of sheep from the herd of R.W. Sevy and others). He appealed. This is the second appeal in the case; the court states that the testimony at the second trial was substantially the same as at the first and that the facts underlying the prosecution are stated in the court's prior opinion (reported at 65 Utah 415, 237 P. 941). The district court's judgment of conviction was affirmed by the Supreme Court.

Legal Issues Presented

Whether testimony given by a witness at a former trial who is now beyond the court's jurisdiction (or dead) may be read to the jury, particularly when the appellant contends the sheriff did not use reasonable diligence to subpoena the witness.
Whether the statute authorizing admission of testimony from a former trial (Comp. Laws Utah 1917, § 9277) conflicts with the state constitutional right of an accused "to be confronted with the witnesses against him" (Const. Art. 1, § 12).
Whether admission of testimony that another person (Lynn Christensen) was seen near the herd about 20 days before the alleged larceny was prejudicial error.
Whether remarks by the district attorney in argument are reviewable when the defendant did not request that the remarks be withdrawn or that the jury be instructed to disregard them.
Whether cross-examining the defendant by asking him whether another witness was mistaken (as to observing fresh marks or brands) was prejudicial error.
Whether, on a second trial with substantially the same testimony, the appellate court's prior holding that the evidence was sufficient to go to the jury is binding (law of the case) and requires denial of a new trial for insufficiency of evidence.
Whether the trial court erred in denying a new trial on the ground that a juror had slept during parts of the trial.

Arguments of the Parties

Appellant's Arguments

The sheriff failed to use reasonable diligence to subpoena Johnny Zahara while he was within the court's jurisdiction, and therefore Zahara's former testimony should not have been read to the jury at the second trial.
Comp. Laws Utah 1917, § 9277 (allowing former-trial testimony when a witness is dead or beyond jurisdiction unless wrongfully caused by the proponent) conflicts with the constitutional right to confrontation (Const. Art. 1, § 12).
The court erred in admitting testimony that Lynn Christensen was seen near the herd about August 10, 1922, which the appellant contended was immaterial or prejudicial.
The district attorney made improper remarks in argument, for which the appellant objects.
The district attorney's cross-examination of appellant, directing his attention to another witness's testimony (that the ranger did not observe fresh marks or brands), was prejudicial.
The evidence was insufficient to justify the verdict and therefore required a new trial.
A new trial should have been granted because a juror slept during portions of the trial.

State's Arguments

The opinion does not contain a detailed account of the State's legal arguments beyond concessions and the court's description of the record. The record shows that it was conceded the absent witness (Johnny Zahara) was beyond the court's jurisdiction (in Nevada), and the State proceeded to read his prior testimony under the statute. No further detailed advocacy by the State is set out in the opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Greene, 38 Utah 389, 115 P. 181	Interpretation that the statute permitting admission of former-trial testimony (where witness is dead or beyond jurisdiction) does not conflict with the constitutional right of confrontation.	The court cited this case as contrary to appellant's contention that Comp. Laws 1917, § 9277 conflicts with Const. Art. 1, § 12, and used it to sustain admission of Zahara's prior testimony.
Andrews v. Free, 45 Utah 505, 146 P. 555	Principle that remarks of counsel in argument are not subject to appellate review absent a request to have the remarks withdrawn or an instruction to the jury to disregard them.	The court applied the rule to decline review of the district attorney's remarks because appellant did not ask the court to require withdrawal or to instruct the jury to disregard.
Perrin v. Union Pac. R. Co., 59 Utah 1, 201 P. 405	Same procedural principle regarding the non-reviewability of counsel's remarks absent a contemporaneous request to cure them.	The court relied on this authority along with Andrews v. Free to support its conclusion that the appellant waived review of the prosecutor's remarks by not seeking withdrawal or an instruction to disregard.
State v. Anderson (prior appeal), 65 Utah 415, 237 P. 941	Prior appellate holding that the evidence, while not conclusive, was sufficient to submit the case to the jury.	The court treated its prior holding as the law of the case and binding on the district court for the second trial because the testimony was substantially the same.

Court's Reasoning and Analysis

The court considered five assigned errors in the order presented. On each point the court explained the legal principle applied and its factual assessment based on the record:

1) Reading of Johnny Zahara's testimony: The court observed that Zahara had testified at the first trial and his testimony was transcribed in the bill of exceptions used on the former appeal. It was conceded that Zahara was beyond the court's jurisdiction (in Nevada) at the time of the second trial. The appellant argued the sheriff failed to use reasonable diligence to subpoena him when he was within jurisdiction. The court held that the right to read testimony from a prior hearing under Comp. Laws Utah 1917, § 9277 is controlled by the status of the witness (dead or beyond jurisdiction) and not by the diligence of the sheriff. The statute permits reading prior testimony unless the party offering it "has wrongfully caused the witness to be out of the jurisdiction." The court concluded the facts did not show that the sheriff lacked reasonable diligence nor that the proponent had wrongfully caused the witness to be absent, and thus reading Zahara's testimony was proper.

2) Constitutional challenge to the statute: The appellant contended § 9277 conflicted with the defendant's right of confrontation under Const. Art. 1, § 12. The court referenced State v. Greene and held that the statute is not in conflict with the constitutional provision, applying that precedent to reject appellant's constitutional objection.

3) Testimony that another person was seen near the herd: A state witness testified that he saw Lynn Christensen near the herd on or about August 10, 1922. The court noted the objection and acknowledged the testimony might be immaterial, but concluded that even if it were immaterial it was not shown to be prejudicial in a way that would justify reversal.

4) Prosecutor's remarks in argument: The appellant objected to certain remarks but did not ask the trial court to require withdrawal of the remarks or to instruct the jury to disregard them. The court stated that absent such a contemporaneous request the remarks are not reviewable on appeal, citing Andrews v. Free and Perrin v. Union Pacific R.R. Co. The court therefore declined to consider the remarks as reversible error.

5) Cross-examination asking the defendant to comment on another witness's testimony: The district attorney asked the defendant whether, if the ranger had testified that he did not observe fresh marks or brands, then the ranger would have been mistaken. The court acknowledged that it is generally improper to ask a witness to measure the credibility of another witness; however, considering the overall record, the questions and answers could not have been prejudicial to the appellant. The court treated any impropriety as harmless.

6) Sufficiency of the evidence (motion for new trial): The court observed that the evidence at the second trial was substantially the same as that at the first. On the prior appeal the court had held the evidence, while not conclusive, was sufficient to submit to the jury. The court applied the "law of the case" doctrine, treating its prior holding as binding in the second trial, and concluded the trial court did not err in refusing to take the case from the jury.

7) Allegation a juror slept during the trial: Affidavits were submitted alleging a juror had slept during parts of the trial; the juror filed an affidavit denying it. The trial court found the juror had not slept during the taking of testimony. The Supreme Court declined to disturb that factual finding and therefore rejected the claim as a ground for a new trial. The court expressly declined to decide the broader question whether a juror falling asleep would, by itself, require a new trial.

Holding and Implications

HOLDING: The judgment of the district court convicting Willard Anderson of grand larceny is AFFIRMED.

Implications and direct consequences:

The conviction stands and the district court's judgment is upheld.
The court reaffirmed that, under Comp. Laws Utah 1917, § 9277, testimony taken at a former trial may be read at a subsequent trial where the witness is beyond the court's jurisdiction (or dead), unless the proponent has wrongfully caused the witness to be out of the jurisdiction.
The court applied existing precedent (State v. Greene; the court's own prior opinion in this case) and procedural authorities (Andrews v. Free; Perrin v. Union Pacific R.R. Co.) in resolving the issues, and it treated the earlier appellate determination as the law of the case where the evidence was substantially the same. The opinion did not announce a new rule of law beyond its application of those authorities.
No reversible error was found on the record presented; the court did not disturb the trial court's factual finding regarding the juror's alleged sleeping and deemed any asserted evidentiary improprieties harmless.

This summary is limited to the matters and statements expressly contained in the provided opinion and does not add or infer facts or reasoning beyond the text of the decision.

Show full summary ...

STATE v. ANDERSON

1. CRIMINAL LAW — TESTIMONY AT FORMER TRIAL MAY BE READ IF WITNESS IS DEAD OR WITHOUT JURISDICTION, UNLESS PARTY OFFERING IT WRONGFULLY CAUSED HIM TO BE WITHOUT JURISDICTION (COMP. LAWS 1917, § 9277). State or defense has right to read testimony of witness taken at former hearing or trial, regardless of diligence of sheriff to subpoena him, if he is dead or without jurisdiction of court, unless party offering to read testimony has wrongfully caused him to be without jurisdiction, under Comp. Laws 1917, § 9277. 2. CRIMINAL LAW — STATUTE AUTHORIZING ADMISSION OF TESTIMONY GIVEN AT FORMER TRIAL HELD NOT IN CONFLICT WITH CONSTITUTIONAL RIGHT TO BE CONFRONTED WITH WITNESSES (CONST. ART. 1, § 12; COMP. LAWS 1917, § 9277). Comp. Laws 1917, § 9277, authorizing admission in criminal case of testimony taken at former trial, where witness is dead or beyond jurisdiction of court, unless party desiring to read it wrongfully caused him to be without jurisdiction, does not conflict with Const. Art. 1, § 12, giving accused right to be confronted with witnesses against him. 3. CRIMINAL LAW — ADMITTING TESTIMONY THAT ANOTHER THAN DEFENDANT CHARGED WITH STEALING SHEEP WAS SEEN NEAR THE HERD, IF ERROR, HELD HARMLESS. Where defendant was charged with stealing sheep, admitting testimony that another than defendant was seen near the sheep some 20 days before the stealing, if error, held harmless. 4. CRIMINAL LAW — REMARKS OF DISTRICT ATTORNEY ARE NOT REVIEWABLE, IN ABSENCE OF REQUEST TO DIRECT WITHDRAWAL OR TO INSTRUCT TO DISREGARD. In absence of request to direct withdrawal of remarks of district attorney or to instruct jury to disregard them, his remarks are not reviewable. 5. CRIMINAL LAW — CROSS-EXAMINING DEFENDANT, AS TO WHETHER ANOTHER WITNESS WAS MISTAKEN, HELD NOT PREJUDICIAL TO DEFENDANT CHARGED WITH STEALING SHEEP. In prosecution for stealing sheep, cross-examining defendant as to whether another witness was mistaken if he stated that he did not observe fresh marks or brands on herd of sheep, if error, held harmless. 6. CRIMINAL LAW — WHERE TESTIMONY WAS SUBSTANTIALLY SAME ON NEW TRIAL GRANTED BY SUPREME COURT, ITS FORMER HOLDING THAT EVIDENCE MADE CASE FOR JURY HELD BINDING. Holding of Supreme Court that evidence was sufficient to submit to jury case against defendant charged with stealing sheep held binding on trial court on second trial, where testimony was substantially same as before. 7. CRIMINAL LAW — FINDING THAT JUROR HAD NOT SLEPT DURING TAKING OF TESTIMONY HELD SUSTAINED BY EVIDENCE, SO THAT REFUSING NEW TRIAL WAS PROPER. Evidence held to sustain finding that juror had not slept during taking of testimony, so that refusing new trial was proper.

State v. Greene, 38 Utah, 389, 115 P. 181.

Andrews v. Free, 45 Utah, 505, 146 P. 555; Perrin v. Union Pac. R. Co., 59 Utah, 1, 201 P. 405.

GIDEON, C.J.

The defendant was convicted of grand larceny. He appeals.

Corpus Juris-Cyc. References:

Criminal Law 16 C.J. p. 758 n. 53, 55, 62 New.

Criminal Law 16 C.J. p. 759 n. 66 New.

Criminal Law 17 C.J. p. 317 n. 10.

Criminal Law 17 C.J. p. 62 n. 94.

Criminal Law 17 C.J. p. 314 n. 69.

Criminal Law 17 C.J. p. 207 n. 68.

Criminal Law 16 C.J. p. 1243 n. 65 New. This is a second appeal in this case. The testimony taken at the second trial was substantially the same as at the first. The opinion on the former appeal is reported in 65 Utah, 415, 237 P. 941. The facts out of which the prosecution grew will be found stated in that opinion. It is not therefore deemed necessary to restate them here.

Five errors are assigned. We shall consider them in the order of their assignment.

The ruling of the court in permitting the testimony of one Johnny Zahara to be read to the jury is assigned as error. This witness had testified at the first trial. His testimony was transcribed in the bill of exceptions used on the former appeal. It was conceded by appellant that, at the time of the second trial, Mr. Zahara was beyond the jurisdiction of 1 the court and was in the state of Nevada. The objection to the reading of his testimony to the jury is based upon the claim of the appellant that the sheriff did not use reasonable diligence in his efforts to subpoena the witness while he was within the jurisdiction of the court. If that objection were a valid reason for excluding the reading of the testimony of an absent witness, the facts shown do not establish failure on the part of the sheriff to use reasonable diligence to locate and subpoena this witness while within the jurisdiction of the court. The right of the state or of the defense in criminal trials to have read to the jury the testimony of a witness given at a former hearing or trial is not, however, controlled by any diligence or lack of diligence on the part of the sheriff to subpoena the absent witness. The right to read to the jury the testimony of an absent witness apparently is controlled by the fact that the witness is either no longer alive or is without the jurisdiction of the court unless it is made to appear that the party desiring to read the evidence has wrongfully caused the witness to be out of the jurisdiction of the court. That seems to be the clear intent of the statute. Comp. Laws Utah 1917, § 9277.

The further claim is made that the provisions of that section are in conflict with section 12 of article 1 of the state Constitution. The ruling of this court in State 2 v. Greene, 38 Utah, 389, 115 P. 181, is contrary to the contention of appellant in that regard.

The information charges appellant with the commission of grand larceny on the 30th day of August, 1922, by unlawfully taking 86 head of sheep from the herd of R.W. Sevy and others. It appears from the testimony that Mr. Lynn Christensen had been at or about the sheep camp of appellant much of the time during the summer of 1922. One of the witnesses for the state was 3 permitted to testify that he had seen, on or about August 10, 1922, this Mr. Christensen at or near the herd of sheep from which it is claimed appellant took the sheep. This testimony was objected to by appellant, and the ruling of the court permitting the testimony is assigned as error. The particular testimony objected to, as it appears in the bill of exceptions, is:

"Q. Do you know Lynn Christensen? A. Yes, sir.

"Q. Did you see anybody in the timber by your sheep that day? A. Yes, sir.

"Q. Who? A. Lynn Christensen."

If it be conceded that that testimony is immaterial, we are wholly unable to see how or in what way it can be said to have been prejudicial to appellant, much less so perjudicial as to work a reversal of the judgment.

Some statements or comment by the district attorney in argument to the jury is assigned as error. It does not appear that the appellant asked the court to require counsel to withdraw the remarks or to instruct the jury to disregard the same. It appears from the record that counsel for appellant asked that the statements of counsel for the state be taken down by the reporter, and he excepted to the ruling of the 4 court that the district attorney had the right to make the statements. The court thereupon inquired of the district attorney what statements he had made, and, after the district attorney had replied, the court simply directed them to proceed. No further exception was taken to the remarks whatever, nor was the court asked to direct the withdrawal of the remarks, nor was the court asked to instruct the jury to disregard the remarks. In the absence of some such request on the part of the complaining party, the remarks of counsel are not reviewable by this court. Andrews v. Free et al., 45 Utah, 505, 146 P. 555; Perrin v. Union Pacific R.R. Co., 59 Utah, 1, 201 P. 405.

Prejudicial error is also claimed in that the court permitted the district attorney, in his cross-examination of appellant, to direct the appellant's attention to 5 certain evidence given by a witness for the state; namely, Chester Oleson. The appellant, just prior to the evidence objected to, and during his cross-examination by the district attorney, was asked this question:

"Q. I will ask you whether or not the ears of the sheep that you marked at that time were still bloody when you later branded them on August 16th?"

The answer of appellant was, "Yes, sir." The district attorney then proceeded to ask the questions claimed to be objectionable. The questions and their answers are:

"Q. You heard the evidence of the ranger the other day, didn't you? A. Yes, sir.

"Q. And you heard him state that he didn't observe that the ears were bloody and that there were no new marks and brands in the herd? A. I don't remember.

Q. Mr. Anderson, if he did state on the witness stand that he didn't observe any fresh marks or brands on the herd that day, then he was mistaken, was he? A. Yes, sir."

Conceding that it is not proper to ask a witness, either on direct or cross-examination, to measure the testimony of other witnesses or the credibility of another witness, still, in view of the whole record in this case, the questions asked and the answers given could, in no way, be prejudicial to appellant.

The last and fifth assignment of error is the denial of a motion for a new trial. One of the grounds alleged for new trial was that the evidence was insufficient to justify the verdict of the jury. In other words, it is claimed that the testimony failed to prove or establish that a larceny had been committed. The evidence at the second trial was 6 substantially the same as at the first trial. We held on the former appeal, that, while the evidence was not very conclusive that there had been a felonious taking of the sheep by appellant, nevertheless, the evidence was sufficient to justify the court in refusing to take the case from the jury. That holding of this court was the law of the case and binding upon the district court, where the testimony upon the new trial was the same as on the former trial.

Lastly, it is contended with some seriousness that the court should have granted a new trial by reason of the fact that it is claimed that one of the jurors had been asleep during the progress of the trial at various times. Affidavits of persons present in the courtroom, during the trial, were filed in support of this claim of the appellant. The juror 7 also filed an affidavit. The court in passing upon the motion for new trial, made a finding that the juror had not slept during the taking of testimony in the case. We are not disposed to disturb that finding. Whether the mere fact of a juror falling asleep during the trial would justify the court in granting a new trial is not, therefore, before the court, and upon that we express no opinion.

We find no reversible error in the record. The judgment of the district court is affirmed.

THURMAN, FRICK, CHERRY, and STRAUP, JJ., concur.

STATE v. ANDERSON

State v. Anderson, No. 4419 (Supreme Court of Utah, Nov. 23, 1926) — Summary

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

STATE v. ANDERSON

Comments