People of Territory of Utah v. Hart, 510

• Court: Supreme Court of Utah
• Writing for the Court: MINER, J.:
• Citation: 10 Utah 204,37 P. 330
• Parties: PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. THOMAS HART, APPELLANT
• Decision Date: 19 June 1894
• Docket Number: 510

37 P. 330

10 Utah 204

PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT,
v.
THOMAS HART, APPELLANT

No. 510

Supreme Court of Utah

June 19, 1894

APPEAL from the District Court of the Third Judicial District, Hon. Samuel A. Merritt, Judge.

Thomas Hart was convicted of house-breaking, and appeals.

Reversed.

Mr. S. P. Armstrong, for appellant.

Mr. Andrew Howatt, Assistant U. S. Attorney, for respondent.

MINER, J. BARTCH, J., concurs. SMITH, J., concurring in the judgment.

OPINION

MINER, J.:

The indictment in this case charges the defendant with the crime of house-breaking, by unlawfully entering the [10 Utah 205] dwelling room of Casper Bessler, in the Telluride block, Salt Lake City, with intent to steal. The testimony shows that Bessler occupied the room in question, in a building where there were many other occupants of [37 P. 331] separate rooms in the building. The landlady of the house kept a key to Bessler's room. During Bessler's absence the room was entered, and a pistol was taken therefrom. About six hours after such entry the defendant was arrested on suspicion of having committed some other offense, and was charged with carrying concealed weapons. At the time of his arrest there was found upon his person a pistol, afterwards identified as the pistol previously taken from Bessler's room, and he was thereupon charged with the offense of house-breaking, embraced in the indictment. The defendant pleaded not guilty. Upon the trial he did not go upon the witness stand to explain his possession, and at no time did he make, or refuse to make, any explanation of his possession of said pistol; and no evidence was in any manner introduced upon the trial, showing or tending to show the guilt of the defendant, or of his connection with said crime charged, except the naked fact that the pistol was found in his possession, as stated. The defendant was convicted, and alleges error in the instructions of the court given on its own motion, its refusal to give the defendant's requests, and also the insufficiency of the evidence to justify the verdict of guilty; that the verdict is against the law, in that the naked possession of the revolver was the only circumstance tending to show guilt.

To the instructions given on the court's own motion, there is only a general exception taken to the entire charge; and no specific part of such charge of the court upon its own motion is excepted to, or pointed out, as erroneous. We think this general exception to the entire charge of the court wholly insufficient to warrant the court in reviewing it. This rule is established in nearly [10 Utah 206] every state in the Union, and the rule applies to civil as well as criminal cases; and our statute (section 5091, Comp. Laws 1888), like that of California, does not change the rule. People v. Hart; 44 Cal. 598; People v. Flahave, 58 Cal. 249, 253; Nelson v. Brixen, 7 Utah 454, 27 P. 578; Marks v. Tompkins, 7 Utah 421, 27 P. 6; Railway Co. v. Jurey, 111 U.S. 584, 4 S.Ct. 566, 28 L.Ed. 527; Geary v. People, 22 Mich. 220; Robinson v. Railroad Co., 48 Cal. 409; State v. Brabham (N. C.), 108 N.C. 793, 13 S.E. 217; U. S. v. Gough, 8 Utah 428, 32 P. 695; Banbury v. Sherin (S. D.), 4 S.D. 88, 55 N.W. 723; Decker v. Mathews, 12 N.Y. 313; Pinson v. State (Fla.), 28 Fla. 735, 9 So. 706; Curry v. Porter, 125 Mass. 94; Brooks v. Dutcher, 24 Neb. 300, 38 N.W. 780; Edwards v. Smith, 16 Colo. 529, 27 P. 809; Maling v. Crummey, 5 Wash. 222, 31 P. 600; Thompson v. State (Tex. Cr. App.), 32 Tex. Crim. 265, 22 S.W. 979; Rowell v. Fuller , 59 Vt. 688, 10 A. 853; Dick v. State, 87 Ala. 61, 6 So. 395; Beaver v. Taylor, 93 U.S. 46, 23 L.Ed. 797; Block v. Darling, 140 U.S. 234, 11 S.Ct. 832, 35 L.Ed. 476; Hicks v. U. S., 150 U.S. 442, 14 S.Ct. 144, 37 L.Ed. 1137; Carver v. Jackson, 4 Pet. 1; Ex parte Crane, 5 Pet. 190; People v. Berlin (Utah), 10 Utah 39, 36 P. 199; Society v. Faulkner, 91 U.S. 415, 23 L.Ed. 283.

Section 5091, Comp. Laws 1888, is the same as section 1176 of the California Penal Code, which is a re-enactment of the old Penal Code of that state. Construing this section, the supreme court of California, in People v. Hart, 44 Cal. 598, holds that this provision of the statute refers to the written requests or instructions which either party may present, and requests to be given to the jury by the court, and does not refer to the charge which the court may give on its own motion. See, also, People v. Flahave, 58 Cal. 249. In the case of People v. Berlin, 9 Utah 383, 35...