69 P. 60 (Utah 1902), 1360, State v. Van Kuran

Docket Nº:1360
Citation:69 P. 60, 25 Utah 8
Opinion Judge:BARTCH, J.
Party Name:THE STATE OF UTAH, Respondent, v. ARTHUR J. VAN KURAN, Appellant
Attorney:Messrs. Powers, Straup & Lippman and H. E. Booth, Esq., for appellant. Hon. M. A. Breeden, Attorney-General, Hon. W. R. White, Deputy Attorney-General, and Messrs. Richards & Varian for the State.
Judge Panel:BARTCH, J. MINER, C. J., and BASKIN, J., concur. MINER. C. J., and BASKIN, J., concur.
Case Date:June 04, 1902
Court:Supreme Court of Utah
 
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Page 60

69 P. 60 (Utah 1902)

25 Utah 8

THE STATE OF UTAH, Respondent,

v.

ARTHUR J. VAN KURAN, Appellant

No. 1360

Supreme Court of Utah

June 4, 1902

Appeal from the Third District Court, Salt Lake County.--Hon. S.W. Stewart, Judge.

The defendant was prosecuted for, and convicted of, the crime of embezzlement. Upon being sentenced to imprisonment in the State prison, he appealed.

REVERSED.

Messrs. Powers, Straup & Lippman and H. E. Booth, Esq., for appellant.

Clearly there was error in the charge of the court upon the subject of character and in the refusal to give the instructions requested by the defendant. State v. Blue, 17 Utah 183; People v. Doggett, 62 Cal. 27; People v. Shepardson, 49 Cal. 631; People v. Hancock, 7 Utah 177-8; Fields v. State, 11 Am. Rep. 771; Springfield v. State, 38 Am. St. 91; 5 Am. and Eng. Ency. Law (2 Ed.), p. 867, and cases. The court charged the jury that "the precise time, or the amount alleged in the information are not material. It is sufficient if it appears from the evidence, beyond a reasonable doubt, that the defendant embezzled the moneys charged in the information or some part thereof." A general verdict of guilty is only sufficient when there is but one penalty for the offense which is fixed, and there is no variation, according to the grade of the offense. Highland v. People, 1 Scam. (Ill.) 392; Locke v. State, 32 N.H. 106; State v. Redman, 17 Iowa 329; Miles v. State, 3 Tex. App. 58; Thompson v. People, 125 Ill. 256; Collins v. State, 6 Tex. App. 647; Timmons v. State, 56 Miss. 786; State v. Sommerville, 21 Me. 20; State v. Cleveland, 58 Me. 564; Tobin v. People, 104 Ill. 565; Sawyer v. People, 3 Gilm. 54; Thomas v. Stater, 5 How. (Miss.) 20; Sheries v. State, 42 Miss. 331; Dick v. State, 3 Ohio St. 89; McPherson v. State, 9 Yerg. 279; Kirby v. State, 7 Yerg. 259; Colin v. State, 16 Ala. 781.

Hon. M. A. Breeden, Attorney-General, Hon. W. R. White, Deputy Attorney-General, and Messrs. Richards & Varian for the State.

The principal objection relied upon, as we infer from counsel's brief, is that based upon exceptions to the charge in relation to the effect of good character.

The court charged the jury: "You are instructed that evidence of previous good character is competent evidence in favor of a party accused, as tending to show that he would not be likely to commit the crime alleged against him. And in this case, if the jury believe, from the evidence, that prior to the commission of the alleged crime, the defendant had always borne a good character for honesty and truth among his acquaintances and in the neighborhood where he lived, then this is a fact proper to be considered by the jury, with all the other evidence in the case, in determining the question whether the witnesses who have testified to facts tending to criminate him have been mistaken or have testified falsely or truthfully; and if, after a careful consideration of all the evidence in the case, including that bearing upon his previous good character, the jury entertain any reasonable doubt of the defendant's guilt, then it is their sworn duty to acquit him."

By this instruction it is contended that the effect of the good character of the defendant is restricted to a determination of the single question whether the prosecuting witnesses have been mistaken or have testified falsely or truthfully, as evidenced by the language above italicized. If this were, in fact, the true interpretation of the instruction, it seems to us it would still be a correct statement of the law, since the determination of the guilt of an accused person must necessarily depend upon the truth or falsity of the evidence given against him. It will be observed by this instruction, that the court fully informed the jury that evidence of the previous good character of the defendant was competent in his favor, as tending to show that he would not be likely to commit the crime charged, and they...

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