State v. Peterson

• Decision Date: 04 December 1933
• Docket Number: 5414
• Citation: 27 P.2d 20,83 Utah 74
• Court: Utah Supreme Court
• Parties: STATE v. PETERSON

27 P.2d 20

83 Utah 74

STATE v. PETERSON

No. 5414

Supreme Court of Utah

December 4, 1933

Appeal from District Court, Third District, Salt Lake County; O. W McConkie, Judge.

N Peterson was convicted of making an assault with a deadly weapon, and he appeals.

AFFIRMED.

J. R Haas, of Salt Lake City, for appellant.

Joseph Chez, Attorney General, and S.D. Huffaker, Deputy Attorney General, for the State.

ELIAS HANSEN, Justice. STRAUP, C. J., and FOLLAND, EPHRAIM HANSON, and MOFFATT, JJ., concur.

OPINION

ELIAS HANSEN, Justice.

The defendant was tried, convicted, and sentenced to serve an indeterminate term in the state prison upon an information which charged:

"That the said N. Peterson on the 4th day of April, A. D. 1932, at the County of Salt Lake, State of Utah, did willfully, unlawfully and feloniously with intent to do bodily harm to W. H. Wood and without just cause or excuse, and without any considerable provocation, make an assault in and upon the person of the said W. H. Wood with a certain deadly weapon called a pistol, loaded with gunpowder and leaden bullets, which deadly weapon the said N. Peterson then and there had and held in his hand, and aimed the said deadly weapon at and upon the said W. H. Wood. * * *"

He appeals. By his assignments of error defendant seeks a reversal of the judgment upon the grounds: (1) That the evidence was insufficient to support the verdict and judgment, in that it failed to show that the pistol in question was, at the time charged, loaded with gunpowder and leaden bullets; and (2) the court erred in the admission of evidence tending to show that other and separate offenses were committed by the defendant. Six witnesses testified at the trial. Four were called and testified for the state. Defendant and one Mr. Kelly testified on behalf of the defendant. The witnesses were agreed upon these facts: That about 2 o'clock on the morning of April 4, 1932, defendant called Vernon Scott on the telephone and made an appointment to meet him. Pursuant to the appointment, the defendant and Mr. Kelly went in an automobile to an apartment house in Salt Lake City where Mr. Scott was residing. Scott was induced to get into the automobile. They rode around in Salt Lake City for a time, and then went out to the southeast of the city. Mr. Kelly drove the automobile. While out on the automobile ride defendant informed Scott that some one had taken twenty-six gallons of whisky from a building which was situated near the apartment house where Scott was residing. Defendant insisted that Scott had either assisted in taking the whisky or knew who had taken it. For a time Scott denied any knowledge of who had removed the whisky, but finally stated that a Mr. Wood, who was conducting the Oaks Hotel at South Temple and First West streets in Salt Lake City, had taken the whisky. Upon being so informed, defendant directed Kelly to drive to the Oaks Hotel, which he did. They arrived at the hotel about 4 o'clock. Mr. Scott was acquainted with Mr. Wood, who conducted the hotel. Because of that fact, defendant directed Mr. Scott to call to Mr. Wood when they reached the hotel. Upon arriving at the entrance of the hotel, the front door was locked. Mr. Wood, who slept near the entrance door, was awakened by their demand for admittance. Wood refused to open the door, and asked them to come to a window which was nearby. They refused, and insisted upon the door being opened. Wood secured a revolver and fired a shot through the door. Thereupon Mr. Scott went to the window, and for the first time Mr. Wood recognized Scott as one of those who demanded admittance to the hotel. Mr. Wood went to the window where Scott was standing and laid his revolver on a shelf near the window. Some one reached through the window and picked up the revolver. At about that time defendant aimed a revolver at Mr. Wood and demanded that Wood return the whisky. Thereupon the four men, defendant, Kelly, Scott, and Wood, left the hotel, entered the automobile, and took a ride around the city. While out riding defendant repeatedly demanded the return of the whisky. For a time Wood denied any knowledge of the whisky, but finally promised the defendant that he would return the whisky during the forenoon of that day. Thereupon Wood returned to the hotel and the defendant went to his room. Mr. Wood did not return any whisky, but, on the contrary, informed the officers of what had occurred. The defendant was arrested about 9 o'clock. The charge set out in the information heretofore quoted in this opinion was filed against him.

There is a conflict in the testimony in the following particulars Mr. Scott testified in substance that, while he was riding with the defendant and Kelly before they went to the Oaks Hotel, defendant repeatedly said that he (Scott) would not go home that night unless he told who took the whisky; that, when he (the defendant) and Kelly reached the door at the entrance of the Oaks Hotel, defendant poked him (Scott) in the back with something and demanded that he call Mr. Wood; that defendant attempted to break down the door at the entrance of the hotel when Mr. Wood refused them admittance; that, when Wood saw him (Scott) at the window, Mr. Wood said, "My God, Bud did I shoot you?"; that, when Wood laid his revolver on the shelf, defendant picked it up, pointed it at Wood, and commanded him to stick up his hands, come out of the hotel, and get into the automobile. On cross-examination Mr. Scott testified that he told the defendant that Wood had taken the whisky to escape further torture by the defendant. Mr. Wood's version of what occurred at the hotel and immediately thereafter was in substance as follows: That when the defendant, Kelly, and Scott demanded admittance to the hotel he believed they intended robbery; that the door at the entrance to the hotel was partly broken in before he fired the shot; that, when he saw Scott at the window, he thought it all a joke, and, because of the blood on Scott's face, he believed he was shot; that, when he laid his revolver on the shelf, defendant reached through the window and picked it up; that, when the defendant pulled the revolver on him, he told the defendant that all of the money was in the office and...