People v. Peacock

• Decision Date: 29 June 1887
• Citation: 5 Utah 237,14 P. 332
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. A. J. PEACOCK, APPELLANT

14 P. 332

5 Utah 237

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. A. J. PEACOCK, APPELLANT

Supreme Court of Utah

June 29, 1887

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Mr. T Maloney, for appellant.

Mr. F S. Richards, and Mr. J. H. Moyle, for respondent.

BOREMAN, J. ZANE, C. J., and HENDERSON, J., concurred.

OPINION

BOREMAN, J.:

This purports to be an appeal from a judgment of conviction for assault, rendered in the district court on appeal from a justice of the peace.

1. The appellant claims that the evidence does not support the findings of the court, but that "the large preponderance of the more reliable testimony shows that defendant, Peacock, is not guilty of assaulting said householder outside of the saloon door." There is nothing upon the face of the record to show that some of the witnesses were more reliable than the others. The court, sitting as a jury, heard this case, and as such was required to weigh the evidence, and to judge of the reliability of the witnesses. Nothing is made to appear that would tend in the least degree to show that the judgment of the court as to the reliability of the witnesses was at all incorrect; and from a careful reading of the testimony it is manifest that the court was fully sustained in the finding of the defendant guilty. The whole transaction, so far as the assault was concerned, was outside of the saloon, and was an unwarranted and unjustifiable assault.

2. The affidavits for a new trial do not show any grounds for granting the motion. That which purports to be new evidence is purely cumulative, and there is no valid reason offered for the failure to produce it on the trial. The witnesses had been talking with the defendant on business both immediately before and immediately after the occurrence, and were at his side during it. He did not show any diligence in the matter.

3. We see no error in the memorandum of costs. The defendant was justly chargeable with the attorney's fee, and it was proper to allow it. Whether it should go to the county attorney or to the district attorney is a question between themselves, and about which the defendant has no concern. We are, however, inclined to think that the feebill was intended to allow the attorney's fee to the attorney having charge of the case, without regard as to whether it was the county attorney or the district attorney.

4. It is claimed by the appellant that none of the witnesses for the prosecution are shown to have appeared before the clerk within the two days after the trial, and claimed their fees, as required by statute. It is not necessary that the cost-bill should show this fact. If, on the face of the memorandum of costs, the names of the witnesses, the number of days claimed, and the amounts appear, the court will, in the absence of any contrary showing, presume that the witnesses appeared within the statutory time and claimed their fees. The cost-bill, in the present case...