State v. Nichols

• Decision Date: 11 February 1944
• Docket Number: 6646
• Citation: 145 P.2d 802,106 Utah 104
• Court: Utah Supreme Court
• Parties: STATE v. NICHOLS

145 P.2d 802

106 Utah 104

STATE v. NICHOLS

No. 6646

Supreme Court of Utah

February 11, 1944

Appeal from District Court, Second District, Weber County; Lewis v Trueman, Judge.

Richard Nichols was convicted of burglary in the second degree, and he appeals.

Reversed and remanded for new trial.

R. R Hackett, of Ogden, for appellant.

Grover A. Giles, Atty. Gen., and Herbert F. Smart, Asst. Atty. Gen for respondent.

MOFFAT Justice. WADE, Justice, LARSON, J., McDONOUGH, Justice, concurring. WOLFE, C. J., concurs in the order.

OPINION

MOFFAT, Justice.

Appellant and one Francis F. Paugh were jointly charged in the District Court of Weber County, Utah, with the felony of burglary in the second degree. Paugh pleaded guilty to the charge. Appellant stood trial and was convicted. He appeals and assigns as errors the trial court's refusal to grant his motion for dismissal made at the time the State rested its case, and the denial of his motion for a new trial. The motion for a dismissal was made upon the ground that the State had not produced sufficient evidence to justify submitting the case to the jury, and the motion for a new trial was made upon the ground of insufficiency of the evidence to support the verdict of the jury in that the State failed to show that the defendant was connected in any manner with the crime of burglary as charged in the information.

A report was introduced in evidence through a police officer who received it early in the morning of February 22nd, 1943, showing that sometime during the night of February 21 and 22 the premises at 2702 Wall Street in Ogden, Utah, known as Sloppy Joe's, had been entered by breaking the glass out of the north door and that several cartons of cigarettes and a. 32 calibre long revolver were missing. The owner of the business was produced and identified the revolver as his gun. The gun had been recovered by police officers from a suit case in a hotel room occupied by appellant Nichols, Paugh and a young woman, under circumstances which will appear later. The owner of the gun, however, stated that he had been in California from the 7th of November, 1942, until he returned to Ogden sometime in March, 1943, and that during his absence his business had been left in the care of his cousin, Jack Olsen. Olsen was not produced as a witness.

The testimony then shows that several Ogden police officers went to a room in the Hyland Hotel about 5 o'clock in the morning of February 23, 1943. They there found appellant Nichols undressed and in bed with a young woman, Ginger Berry, and the co-defendant Paugh fully dressed on the floor near the foot of the bed where he apparently had been sleeping with a blanket or quilt over him. Officer Allred made a search of the room and in a suit case claimed by the young woman to be hers, found the revolver above referred to and identified. The gun was empty. The officers ordered the persons to get dressed and officer Ballantyne testified that, "Dick Nichols [appellant] * * * took the shells out of one of his shoes by the bed and told him [officer Allred] he might just as well take them too. One of us asked 'Whose gun it was?' and Dick said: 'It was his.' When asked why he didn't have it loaded, he said he didn't carry it loaded. So we brought them over to the police station, the three of them, and locked them up." On cross-examination, officer Ballantyne further testified that he saw officer Allred find the gun "In a suit case on the floor on the west wall * * *. The suit case belonged to the woman, so she said."

"Q. Now you found the shells for the gun in this man's shoes? A. He poured them out of the shoes himself.

"Q. When did he do that? A. That is when he went to put the shoes on.

(Six. 32 calibre long cartridges were introduced in evidence. They fit the revolver identified.)

"Q. You stated the defendant here claimed the gun as his gun? A. Yes.

"Q. Just what did he say with reference to that? A. I am not sure whether I asked or the other boys asked him but it seems to me I asked him whose gun it was and he said it was his. I asked what he used it for, and he said he very seldom used it. I asked if he carried it loaded and he said no, he didn't carry it loaded.

"Q. You are sure this man told you that? A. Yes.

"Q. It wasn't Mr. Paugh? A. No it wasn't. It was Dick.

"Q. Did you ask about the shells in his shoes? A. No I don't believe I did.

"Q. Did any of the other officers ask how he happened to put them in his shoes? A. Might have done, if they did I have forgotten.

"Q. You don't remember that part? A. No.

"Q. You don't remember the case clearly? A. Well, I remember we found the gun and he claimed the gun. He offered the bullets out of the shoe, as he went to put it on.

"Q. You remember the elements of the offense and not much else? A. Well, I don't think there is anything else that matters much, is there."

At the conclusion of his cross-examination, Ballantyne testified:

"Q. What else was stolen? A. Cigarettes.

"Q. Did you find the cigarettes? A. No sir, we know where they went.

"Q. Did you find anything to connect this man with these cigarettes? A. Nothing I can say in this court."

On redirect examination, the following took place:

"Q. Alright, how did you find out about the cigarettes? A. Well we had a fellow who claimed--

"Mr. Barker: I object he is going to testify to what someone told him.

"The Court: Objection overruled.

"Q. You may state? A. There was a fellow knew where the cigarettes were, and went in and got the cigarettes and sold them and split the money with Dick and Mr. Paugh.

"Q. The fact is he told you Dick came and got him to dispose of the cigarettes? A. Yes sir.

"Q. And that is the reason you went to the room that morning? A. Yes sir.

"Mr. Barker: I move to strike, someone told him about Dick as clearly hearsay, and the jury be instructed to disregard it.

"The Court: What was the conversation? A. A party came to us and told us where the cigarettes were, and that Dick wanted him to dispose of them, and he got the cigarettes and disposed of them.

"Q. He did get the cigarettes and disposed of them? A. Yes sir.

"Mr. Barker: Did you know that, or is that what he told you?

"The Court: Wait a minute. You objected to this. How do you know he split the money? A. All I know is what he told us.

"Q. Where is this fellow? Is he available? A. Well, he is in town, I think. But I don't think he is in the court room.

"Q. Can he gotten here today? A. I don't know. I haven't seen him for some time.

"Q. Have you any way of finding out where he is in town? A. It might take some time. I don't know and I am not sure that he is here, but I think he is; although I am not sure of that.

"The Court: I will sustain the objection and the evidence may be stricken."

The damage was already done by this incompetent testimony, as will be observed from a detailed examination of all the testimony, and as evidenced by the verdict returned by the jury. Even had the trial court explained its incompetency to the jury and instructed them expressly to disregard it, it is doubtful that the injurious effect could have been overcome. If such evidence existed in fact, it should have been properly and competently introduced.

Police officer Allred was then called and testified to finding the three persons in the room, and that

"We searched the room and found I think three suit cases, and going through the suit cases we discovered a. 32 caliber revolver * * *. We asked defendant [appellant] a few questions Not very many."

He then identified the revolver and the shells, and as to the latter he was asked:

"Q. And, where did you get those? A. The defendant Mr. Nichols as he went to put on his shoes he took them out of his shoes, and said: 'Perhaps you might want, or need them,' and he handed them to me." "A. I asked him if he knew anything about the burglary, the job at 27th and Wall. He said 'No, he did not. He hadn't heard anything about it.' I asked him where he had been the past few months and he said 'Up in Idaho and Montana,' and that he had arrived in Ogden about two days before."

On cross-examination Allred testified:

"Q. Lieutenant Allred, was anything said to you as to whose gun that was the night of the arrest, or early morning of the arrest? A. There was nothing mentioned about the gun except, or there was something mentioned about the gun, but I just don't have a recollection what the conversation was relative to the gun.

"Q. Was anything said as to any gun, whose gun it was? A. I believe he said first it was in the room, I think he said, Mr. Nichols, that it was his gun. Later he said he bought it from somebody.

"Q. You say Mr. Nichols said he had purchased it? A. I wouldn't be sure, as I recall that is what he said.

"Q. Are you sure Mr. Nichols ever claimed the gun? A. I am not sure.

He then testified that he had known the defendant Nichols for seven or eight years, but that the girl and Paugh were strangers to him.

Appellant Nichols then took the stand in his own defense and testified that he had been convicted of burglary in Ogden in 1936 and that he had been charged with robbery and gambling in Montana; that he had become acquainted with Ginger Berry in Council Bluffs, Iowa, her home town, and they had been friends for some six years; that they had been in Pocatello Idaho, working and the girl had preceded him to Ogden and had met him at the bus station by appointment the night he arrived in Ogden at about 10:30; that they proceeded to look for a hotel room and met the codefendant Francis F. Paugh, with whom he had become acquainted in Pocatello; that Paugh told him he was broke and did not have a room; that he, Nichols, rented a room at the Van Ess Hotel with two beds so that...