State v. Rowley
| Decision Date | 31 October 1963 |
| Docket Number | No. 9894,9894 |
| Citation | 15 Utah 2d 4,386 P.2d 126 |
| Parties | d 4 STATE of Utah, Plaintiff and Respondent, v. Hugh F. ROWLEY and Donald Spencer, Defendants and Appellants. |
| Court | Utah Supreme Court |
Louis H. Callister, Sr., and Louis H. Callister, Jr., Salt Lake City, for appellants.
A. Pratt Kesler, Atty. Gen., Ronald N. Boyce, Asst. Atty. Gen., Salt Lake City, for respondent.
Each of the defendants, Hugh F. Rowley and Donald Spencer, appeals from a conviction of the crimes of assault with a deadly weapon in violation of Section 76-7-6, U.C.A.1953, and attempted burglary, in violation of Sections 76-1-30 and 76-9-3, U.C.A.1953.
On Sunday, October 21, 1962, at approximately 8 p. m., Mr. Vere Lancaster, an employee of J. C. Penney Company, located in Tooele, Utah, and his 15-year-old son made a security check on said store. Upon entering the store, Vere Lancaster noticed a small pile of shavings on the floor and a hole in the ceiling directly above. Mr. Lancaster directed his son to notify the police and then proceeded into the alley behind the store, where he observed a man running on an adjacent roof. The man jumped from the roof approximately 25 feet from Mr. Lancaster, and upon reaching the ground, fired three shots, two of them finding their mark and injuring Mr. Lancaster in both legs. A Sidney Smith and Dennis Jensen hearing the shots, rushed to the scene and were injured when the bandit fired at them. Mr. Smith noticed that the burglar dropped his glasses as he fired in his direction. Dr. Bruce J. Parsons later testified at trial that the rim of the glasses found at the scene of the crime in unique and of the same type he had issued the defendant, Donald Spencer, a few weeks earlier. The prescription of the glasses duplicated that which was prescribed for Donald Spencer.
James T. Portwood, a soldier residing in a nearby hotel, heard the shots, looked out his window, and observed a man limping badly, with a revolver in his hand, get into a 1953 green and cream-colored Dodge. He also indicated the car had another man in it when it drove away. At approximately 9 p. m. on the same night, on the road from Tooele, Utah, to Lehi, Utah, police officers stopped a 1953 four-door, two-toned white and green automobile, later identified by Portwood as the car that had left the scene of the crime in question. The defendants Hugh F. Rowley and Donal Spencer were occupants of the car and were arrested on the spot. A pistol was taken from the belts of both Rowley and Spencer at the time of the arrest. The one taken from Spencer was identified as a .357 Magnum, and the arresting officer testified that it had recently been fired. Police officers retrieved a .357 Magnum spent slug from the vicinity of the J. C. Penney Store. The arresting officer also testified that Spencer was limping badly at the time of his arrest, which coincided with Portwood's description of the man that left the scene of the crime. Footprints were taken from the J. C. Penney store area and matched the shoes of defendant Rowley in depth, width, name and design.
The defendant Spencer took the stand, admitted passing through Tooele on the night in question, but denied participation in the crime. A stipulation was made that Hugh Rowley had taken a polygraph test, and that it was believed by the examiner that Rowley was not telling the truth when he denied he had anything to do with the particular offense charged against him. The jury convicted the defendants as charged, based upon the foregoing evidence, and from this verdict defendants appeal.
Defendants have found basic objections in their appeal. They are: (1) There is no indication in the transcript that the information was read just prior to trial as required by Section 77-31-1(1), U.C.A.1953. (2) The court failed to give an instruction on the effect of a polygraph test. (3) The court failed...
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