State v. Tellay
| Decision Date | 03 February 1941 |
| Docket Number | 6233 |
| Citation | 110 P.2d 342,100 Utah 25 |
| Court | Utah Supreme Court |
| Parties | STATE v. TELLAY |
Appeal from District Court, Third District, Salt Lake County Clarence E. Baker, Judge.
Angelo Tellay was convicted of carnal knowledge of a female under the age of 18 years, and he appeals.
JUDGMENT AFFIRMED.
Robert S. Spooner and George D. O. Connor, Jr., both of Salt Lake City, for appellant.
Grover A. Giles, Atty. Gen., for respondent.
An appeal from the District Court of Salt Lake County. Angelo Tellay was convicted of the crime of carnal knowledge of a female under the age of eighteen years, and appeals. The sixteen assignments of error present four questions: (1) Did the court err in ruling against appellant on his plea of former acquittal and once in jeopardy? (2) Was the admission in evidence of State's Exhibit "A" error? (3) Does the admission in evidence of the testimony of the mother of the complaining witness call for a reversal of the judgment? (4) Is the evidence sufficient to sustain the verdict? We consider them in order, and the facts will be stated only as they become essential to the discussion.
(1) The record discloses by minute entry that when defendant was arraigned he "entered a plea of not guilty, and further enters a plea of former acquittal and former jeopardy." No further reference to the plea or any facts upon which it was based, or any former trial, hearing or proceeding appears in the record or transcript until after the State's witnesses had all testified. The State's attorney then offered in evidence "State's Proposed Exhibit 'A'", in the following language:
The objection was overruled and the testimony offered read in evidence. Exhibit "A" is entitled in the District Court of Salt Lake County, "State of Utah, Plaintiff, v. Angelo Tellay, Defendant," and purports to be "evidence taken from the direct examination of the defendant in action, in the above entitled cause of action, in judge McConkie's division of the District Court on June 14, 1939." It is in the form of questions and answers by defendant narrating how he had the act of sexual intercourse involved in this action, with the complaining witness with her consent and without any objections on her part. At this point the State rested its case.
Counsel for the defendant then stated:
The offer was denied by the court and the defendant rested. The court directed the jury to disregard the plea of former acquittal and formed jeopardy. There is no other mention anywhere in the record of proceedings below nor in the transcript to the plea or the facts upon which it was based. The offer, "Defendant's proposed Exhibit '1,'" is not made a part of the record on appeal directly, by copy or by having been read into the record. There is no further statement as to what it was or what it contained or what the defendant sought to show by it. Since we are given no information as to the contents of purpose or effects of the exhibit, we cannot say the court erred in excluding it from evidence. There being no evidence at all of a former jeopardy or a former acquittal on this or any other charge, the court was correct in withdrawing such plea from the consideration of the jury.
(2) Did the court err in admitting in evidence "State's Exhibit 'A'"? As indicated above, State's Exhibit "A" was a transcript certified by the court reporter of some testimony given on direct examination by defendant at a former trial, concerning the same act of sexual intercourse involved in this trial. The objection urged by defendant was two-fold: (a) That it violated his constitutional rights by making him a witness against himself, and (b) that it was only a part of the former testimony of the defendant, without the cross-examination. Counsel made it clear he was not objecting that it was a transcript being read, rather than calling the reporter who took it to testify to...
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State v. Maestas
...Fifth Amendment argument was "without merit" because he had not invoked the right at the previous trial); State v. Tellay, 100 Utah 25, 28, 110 P.2d 342, 343 (1941) (holding that because the "defendant voluntarily, of his own violation, and under the guidance of his counsel, went upon the w......
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State Of Ohio v. King
...(4) that the introduction of a defendant's former testimony does not tend to compel him to incriminate himself (see State v. Tellay, 100 Utah 25, 110 P.2d 342 (1949)); (5) that the use of the defendant's prior testimony does not constitute a comment on his failure to testify at his current ......
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State v. Holm, 2461
...State, 61 Ga.App. 828, 7 S.E.2d 788; State v. Daugherty, 63 Kan. 473, 65 P. 695; State v. Griffin, 43 Wash. 591, 86 P. 951; State v. Tellay, 100 Utah 25, 110 P.2d 342; People v. Huston, 21 Cal.2d 690, 134 P.2d 758. If, accordingly, the testimony of the prosecutrix is equivalent to naming th......
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Smith v. Slayton, Civ. A. No. 73-C-44-D.
...(4) that the introduction of a defendant's former testimony does not tend to compel him to incriminate himself (see State v. Telley, 100 Utah 25, 110 P.2d 342 (1949); (5) that the use of the defendant's prior testimony does not constitute a comment on his failure to testify at his current t......