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All Reporters → p2d → Volume 456

Opinions in p2d Volume 456

The opinion of the court was delivered by The defendant, Madison Stein, was charged with second degree burglary and grand larceny. He was convicted on both charges and has appealed. Two points, only, are raised on this appeal: (1) that the defendant’s motion to suppress evidence was erroneously overruled, and (2) that the evidence was insufficient for a conviction. A summary of certain evid...
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The opinion of the court was delivered by This was an action brought by a widow and children to recover damages for the wrongful death of a husband and father while traveling as a guest in an automobile which collided with another vehicle. The collision between the defendant Maxwell’s vehicle and one driven by a Phillip M. Ballantyne occurred at the intersection of Highway K-32 and Eudora Roa...
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The opinion of the court was delivered by This is a criminal action in which the defendant pleaded guilty to the chages of burglary in the second degree and grand larceny, in violation of K. S. A. 21-515 and 21-533, respectively. The trial court accepted the defendant’s plea and found him guilty as charged, sentencing him to the penitentiary under the habitual criminal act for one prior felony ...
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The opinion of the court was delivered by This is a direct appeal from a conviction of robbery in the first degree and a sentence of from twenty to 42 years pursuant to the provisions of K. S. A. 21-107a. The record discloses that on December 11, 1967, the Save-U-More Market in Wyandotte County, Kansas, was robbed at gun point by four men. None of the men were masked, and in committi...
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The opinion of the court was delivered by Carl Dennis Runnels was convicted of the unlawful possession and control of a pistol after conviction of a felony. (K. S. A. 21-2611.) He was sentenced to the Kansas State Penitentiary at Lansing, Kansas, for not more than five years. Two trial errors are specified on appeal. One of these concerns the court’s instructions. The second is directed at test...
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Fatzer, J.: This case arises out of a workmens compensation proceeding. The plaintiff has appealed from the order of the district court sustaining his motion for summary judgment in an amount less than the amount he sought to recover in an action commenced pursuant to K. S. A. 44-512a. On or about November 15, 1962, the claimant sustained personal injury by accident which arose out of and in the c...
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The opinion of the court was delivered by This was a workmens compensation case. The workman has appealed from a judgment of the district court reducing the amount of the examiner s award as approved by the Workmens Compensation Director from 70 per cent permanent partial general disability to 10 per cent. It is now made to appear that the respondent, appellee here, failed to make any payment...
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The opinion of the court was delivered by At issue is the construction and application of K. S. A. 8-135 (c), and particularly subsection (6), with respect to the sale and delivery of a 1962 three-ton used truck-tractor, hereafter re *502 ferred to as the truck, where no certificate of title, stating all Hens or encumbrances thereon, was assigned to the purchaser at the time ...
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The opinion of the court was delivered by The Wichita City Teachers Credit Union brought an action against John Rider to recover a balance of $909.73 on a promissory note, plus punitive damages. In defense to this claim the defendant John Rider set up his discharge in bankruptcy entered on March 16, 1965. In reply the plaintiff credit union alleged that the indebtedness fell within the st...
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(dissenting) I dissent. Accepting all the testimony about emotional disturbance leaves me unimpressed. The evidence reveals that plaintiff, in addition to being the county attorney, was a newspaper correspondent or writer and in his own article told about the incident so that the reading public throughout the area was informed. Clearly plaintiff publicly advertised the incident and if any embarras...
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delivered the Opinion of the Court. Third party liability has been asserted for a compensable injury to the plaintiff while engaged in the business of his employer, on his employer’s property, resulting from movement of his employer’s goods by his employer’s workmen. The plaintiff, Clinton Hagen, brought this action to recover damages for personal injuries sustained when he was pinned beneath s...
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delivered the Opinion of the Court. This is an appeal from a conviction for selling narcotics. On February 26, 1968, an information was filed in Yellowstone County, charging the appellant, Charlene White, with two counts of the sale of narcotics. On September 30, 1968, the appellant was tried and found guilty of both counts. She was subsequently sentenced to 18 months in the state prison at Dee...
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MEMO OPINION An inmate of the state prison seeks a writ of habeas corpus from this Court, alleging that his sentence of five years for burglary was void in that, in effect, he was not advised of his right to counsel nor provided counsel in district court. Subsequently the inmate received a one-year sentence for escape. *449 The petitioner does not attach the minutes of the district court to...
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456 P.2d 61 (1969) Albert ROSENSTEIL, Appellant, v. George A. LISDAS and Margaret I. Lisdas, Dba Somewhere Cafe, Respondents. Supreme Court of Oregon, Department 1. Argued and Submitted March 4, 1969. Decided July 16, 1969. David K. Mitchelson, Beaverton, argued the cause for appellant. With him on the brief were Wallace A. Leaf, Beaverton, and Leo Levenson, Portland. Carrell F. Bradley, Hillsbor...
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The sole issue is whether evidence introduced by the state was obtained by an illegal search and seizure. Officers Daggett and Lindholm were motor patrolling in northeast Portland in the early morning. The police radio broadcasted the following information: At 4:00 a.m. that morning a truck had been observed backed up to a garage at a residence on NE Going Street, Portland; it was reported that ti...
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This is a suit in which plaintiff prays for decree declaring ORS 260.350 unconstitutional. Defendant Clay Myers, Secretary of State, and Robert Y. Thornton, Attorney General at the time the notice of appeal was filed, appeal from a decree declaring the statute unconstitutional. Plaintiff is engaged in the business of broadcasting by radio. Plaintiff alleges that it was engaged in selling to certai...
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This is a class suit brought by plaintiffs on behalf of themselves and all other “needy blind people,” who are the beneficiaries of a trust created by the will of Ella Munro Burdin. The complaint prayed for the removal of the Commission for the Blind as trustee of the Burdin trust and for an accounting. The Commission appeals from a decree in favor of the plaintiffs. The findings entered by the le...
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The only issue is, did the affidavit which was the basis for a search warrant state probable cause for the issuance of the warrant? The affidavit stated as follows : “I, Robert Trummer, being first duly sworn, on oath, depose and say, that I am a Portland Police officer, assigned to the narcotics squad; “That on November 1,1967 I was in contact with a person who has furnished the Portland P...
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This is an action brought under the Employers’ Liability Law to recover damages for personal injuries sustained by plaintiff while in defendants’ employment. Plaintiff appeals from a judgment entered on a verdict for defendants. Plaintiff was injured when a sheet of galvanized metal blew off a stack and struck him. When plaintiff first began his work the sheets had been leaned against a buildin...
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This is an appeal from a judgment which affirmed the suspension of a motor vehicle operator’s license under ORS 482.540 because of the operator’s refusal to submit to a chemical breath test as required by the implied-consent law (ORS 483.634). The twenty assignments of error fall into four major groups. One group asserts that the procedural rules for criminal trials must be observed in a procee...
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The plaintiff wife appeals from an order modifying the divorce decree. The issue in dispute was the defendant husband’s obligation to pay an indebtedness. The trial court held that the husband’s obligation had been extinguished. Some exhibits received in evidence at the hearing may have assisted in deciding this matter; however the exhibits were not made part of the record. The husband testified t...
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Defendant appealed from a conviction of perjury. The claimed perjury arose out of defendant’s testimony while being tried for the crime of contributing to the *597 delinquency óf a minor. He was charged in the contributing case with removing the clothing, fondling the breasts, and having sexual intercourse on the 30th day of October, 1966, with a female under the age of 18 years. His testimony,...
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This appeal requires an interpretation of a statute giving preference to certain contractors in bids on public work. The lower court held that both competing contractors, B. L. Gustafson and Lester E. Jackson, met the preference requirements of this statute and that therefore the award of the bid to the lowest bidder, Jackson, was proper. The statutory language controlling this controversy is: ...
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This litigation arises, almost foreseeably, in a guardianship estate wherein there is an untrained and inexperienced parent-guardian dealing with her ward’s funds without regard to her fiduciary responsibility; incomplete, *119 irregular and inaccurate accountings; and family discord. In fact, just about everything that could be done wrong in a guardianship is in this record with o...
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456 P.2d 104 (1969) In the Matter of the ESTATE of James G. NEWKIRK, Deceased. Mary Lake NEWKIRK and Joan Jancik, Contestants, v. Pauline KNIGHT, Proponent. No. 41971. Supreme Court of Oklahoma. June 17, 1969. Ed Shipp, Idabel, for contestants. Ed R. LeForce, Idabel, Joe Stamper, Jerry Otis, Antlers, for proponent. *105 BERRY, Vice Chief Justice. This appeal from a judgment in a will contest pres...
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This appeal from a judgment in a will contest presents the issue whether an improper, illicit, or meretricious relationship existing between the principal beneficiary and testator is sufficient to require finding of undue influence in execution of the will ? May 14, 1952, James G. Newkirk executed a will, pertinent provisions of which stated: “SECOND: I give and devise to Miss Pauline Knight, all ...
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This appeal involves the construction of an agreement in writing between Guaranty National Insurance Company, a corporation, and E. Ray Price, doing business as E. Ray Price Insurance Agency, whereby the latter agreed to act as the agent for the former in the sale of insurance within the State of Oklahoma. The petition filed by Guaranty alleged that Price owed Guaranty $5,062.23, which amount repr...
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The parties occupy the same relative positions in this court as in the lower court and will be referred to by their trial court designation. Plaintiff wife sued her defendant husband for divorce, division of property and alimony. The defendant filed a cross-petition for divorce. On February 3, 1966, the trial court granted a divorce *114 to both parties, decreed division of property, and refuse...
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*117MEMORANDUM OPINION Edward Loyd Jones, hereinafter referred to as defendant, was charged in the Municipal Criminal Court of the City of Tulsa, with a violation of city ordinance 163(a) for operating his motor vehicle at a speed greater than was reasonable and prudent under the traffic and weather conditions then and there existing. The evidence adduced on the trial was in substance that the def...
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Plaintiff in Error, Billy Joe Hixon, hereinafter referred to as Defendant, was convicted in the District Court of Oklahoma County of the crime of possession of marijuana, after former conviction of a felony, and sentenced to twelve years imprisonment, Case No. 34586. From that judgment and sentence Defendant has attempted to appeal his conviction to this court. At the time that the petition in err...
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James Donald Gresham, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Cad-do County with the crime of Burglary in the Second Degree, and from the judgment and sentence fixing his punishment at two years imprisonment in the state penitentiary, he appeals. The burglary with which this prosecution was concerned occurred while a truck belonging to the...
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William Guy King, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Wagoner County, with the crime of Robbery With Firearms; was sentenced to serve fifty years in the state penitentiary at Mc-Alester, and from said judgment and sentence, a post conviction appeal has been granted by this Court. On appeal the defendant argues several assignments of erro...
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This is an original proceeding in which Petitioner, Harold Lee Pierce, seeks an appeal of his conviction “Out of Time”, as provided for in 22 O.S.Supp. § 1073. When petitioner filed his petition in this Court, an evidentiary hearing was directed to be held by the District Court of Garvin County, Oklahoma. Thereafter, such hearing was held, and the court entered its findings of fact and conclusions...
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I dissent. Seiterle contends that it was error under Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], to exclude for cause veniremen Cody and Prestwood. However, venireman Cody was properly excluded because her responses made it “unmistakably clear . . . that [she] would automatically vote against the imposition of capital punishment without regard to any evidence that might ...
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71 Cal.2d 683 (1969) 456 P.2d 136 78 Cal. Rptr. 864 THE PEOPLE, Plaintiff and Respondent, v. ALFREDO PACHECO ACOSTA, Defendant and Appellant. Docket No. Crim. 11587. Supreme Court of California. In Bank. July 8, 1969. *684 Alfredo Pacheco Acosta, in pro. per., and Don Edgar Burris, under appointment by the Supreme Court, for Defendant and Appellant. *685 Thomas C. Lynch, Attorney General, Daniel ...
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Petitioner seeks an order permitting him to file a late.notice of appeal pursuant to rule 31(a) of the California Rules of Court. , Rule 31(a) requires that notice of appeal in a criminal case be filed within 10 days after rendition of judgment but empowers appellate courts to grant relief from default in proper cases. This power is to be liberally exercised to protect the right to appeal. (People...
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Petitioner seeks an order permitting him to file a late notice of appeal pursuant to rule 31(a) of the California Rules of Court. Rule 31(a) requires that notice of appeal in a criminal case be filed within 10 days after rendition of judgment but empowers appellate courts to grant relief from default in proper cases. Petitioner has not presented such a case. Petitioner was charged with violatio...
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71 Cal.2d 709 (1969) THE PEOPLE, Plaintiff and Respondent, v. TINY H. ODOM, Defendant and Appellant. Crim. No. 12803. Supreme Court of California. In Bank. July 16, 1969. Goldberg & Fisher, Arthur F. Fisher and David F. Goldberg for Defendant and Appellant. Thomas C. Lynch, Attorney General, Daniel J. Kremer and Stephen Cooper, Deputy Attorneys General, for Plaintiff and Respondent. TOB...
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The opinion of the court was delivered by The appellee asks for rehearing and clarification of the decision of the court previously rendered reversing this appeal. (Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P. 2d 511.) We have examined the record, the former opinion, and the arguments and authorities cited in support of the motion for rehearing, and upon consideration by the cour...
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456 P.2d 154 (1969) 23 Utah 2d 14 STATE of Utah, Plaintiff and Respondent, v. Frederick B. ASH, Defendant and Appellant. No. 11411. Supreme Court of Utah. June 30, 1969. Frederick B. Ash, pro se. Vernon B. Romney, Atty. Gen., Salt Lake City, for plaintiff and respondent. ELLETT, Justice: The defendant was charged with the commission of the crimes of grand larceny and resisting or obstructing an o...
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Defendant Glen W. Mecham appeals from a conviction of the crime of indecent assault after a nonjury trial in the District Court. The gravamen of the defendant's appeal is that although the judge found him guilty, during his discussion at the conclusion of the evidence he made certain comments which indicate that he was mistaken as to the necessity of holding the State to its proof of the c...
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456 P.2d 159 (1969) 23 Utah 2d 22 Ethel RICE, Plaintiff and Appellant, v. GRANITE SCHOOL DISTRICT, a political subdivision of the State of Utah, Defendant and Respondent. No. 11443. Supreme Court of Utah. July 1, 1969. *160 Thomas, Armstrong, Rawlings, West & Schaerrer, David E. West, Salt Lake City, for appellant. Ray, Quinney & Nebeker, Stephen B. Nebeker, Salt Lake City, for respondent...
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Appeal from a jury’s verdict and judgment entered thereon, for uttering a forged, prescription under the Uniform Narcotic *35Drug Act,1 and from a judgment denying a petition for writ of habeas corpus filed pending the appeal, which had to do with the same problem, and which we ordered consolidated with the regular appeal. The judgment on petition for habeas corpus is affirmed (Case No. 11195, thi...
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Appeal from a burglary and larceny conviction. Reversed and remanded for a new trial. After voir dire it appeared that there was a question about Miranda at a confes*38sion session and particularly anent volun-tariness thereof. In front of the jury the trial court announced quite audibly, that the question of the confession, itself questionable, was a “question for the jury.” The propriety of this...
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This is a second appeal from a summary judgment for specific performance of a written contract for the sale and purchase of land and livestock in Daggett County, Utah, and Sweetwater County, Wyoming. For the first appeal see Amoss v. Bennion, 18 Utah 2d 251, 420 P.2d 47 (November 15, 1966). ,.,:On the prior appeal among other things l.h.is, court held the contract to be enforceable,., that...
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The former State Attorney General, Phil L. Hansen, in his official capacity, initiated a declaratory judgment action to determine the constitutionality of the 1967 -amend *48 ments to Sections 36-4-12 and 36-4-7, U.C.A.1953, insofar as they provided for payment of a per diem and expenses to the members of the Legislative Council and authorized the Council to employ a staff and fix ...
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Plaintiffs Mortenson, sellers, sued on the ground of breach of contract to obtain a ■declaration of termination of the rights of the defendant Financial Growth, Inc., buyer, in a contract of sale of a large ranch property, known as the Mortenson Ranch in Morgan County. Financial ■Growth denied breach, contended breach by the plaintiffs; and the other corporate defendant, Professional United Realt...
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456 P.2d 185 (1969) 80 N.M. 352 STATE of New Mexico, Plaintiff-Appellee, v. Lester Allen GARLICK, Defendant-Appellant. No. 8758. Supreme Court of New Mexico. June 2, 1969. Rehearing Denied July 21, 1969. Asa Kelly, Jr., Silver City, for appellant. James A. Maloney, Atty. Gen., Spencer T. King, Oliver H. Miles, Asst. Attys. Gen., Santa Fe, for appellee. OPINION MOISE, Justice. From a refusal of t...
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OPINION This proceeding was commenced by plaintiffs-appellants, as the owners of property in Cloudcroft or Place of Cloudcroft, as it is sometimes known, and as the “Official Board of Directors of the Cloudcroft Directory,” against the defendant-appellee as purchaser under contract of Lots 10 and 11, Block 4, of Cloudcroft, seeking to enjoin defendant from operating a store thereon, alleging the ...
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OPINION In this appeal from a judgment and sentence of death following conviction of murder in the first degree, appellant argues six points of claimed reversible error in the trial. Although presented by permission in a supplemental brief, we first consider point VI wherein it is argued that the procedure followed in qualifying the jury amounted to systematic exclusion of jurors who expresse...
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OPINION The appeal in these burglary convictions presents questions concerning: (1) circumstantial evidence, (2) competency to stand trial and (3) cross-examination. Circumstantial evidence. State v. Easterwood, 68 N.M. 464, 362 P.2d 997 (1961) states: "Where circumstantial evidence alone is relied upon for a conviction such evidence must be incompatible with the innocence of the accused ...
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OPINION Defendant appeals from a conviction of second degree murder. On August 20, 1966 defendant was arrested for the murder of Julia Collum. During the morning of August 22 the police were advised by the district attorney’s office that there was not sufficient evidence to justify holding defendant on the murder charge. Shortly thereafter defendant was taken to municipal court and sentenced ...
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OPINION Defendant appeals from a conviction of involuntary manslaughter. Defendant was participating in a “drag” race on a county road north of Artesia. When the race was considered over defendant-driver started to “let off” the accelerator, the car then went into a side-skid, left the road, struck a concrete ditch, liner and went out into a field. Passenger-owner was thrown from the car and ...
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OPINION Defendants were charged by information filed in the district court of Colfax County on March 29, 1967, with receiving stolen property of the value of more than $100.00 and not more than $2,500.00, contrary to the provisions of § 40A-16-11, N.M.S.A. 1953. This charged offense is a fourth degree felony. On April 12, 1967, defendants were charged by information filed in the district cour...
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OPINION Defendant was indicted for murder and attempted murder in the first degree. Upon trial by jury, he was convicted of murder in the second degree, in the killing of one Nick Candelaria, and of attempted murder in the second degree, in the shooting of Mrs. Candelaria. Defendant appeals from the judgment of conviction entered pursuant to the jury verdicts. One point is determinative of th...
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Ordered that petition for writ of certiorari be and the same is hereby denied. Further ordered that the record in Court of Appeals Case No. 270, 80 N.M. 418, 456 P.2d 892 be and the same is hereby returned to the Clerk of the Court of Appeals. ...
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Ordered that the alternative writs of prohibition heretofore issued herein on June 12, 1969, be and they are hereby quashed as having been improvidently issued....
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Ordered that petition for writ of prohibition and Exercise of Superintending Control be and the same is hereby denied....
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*243 OPINION OF THE COURT BY Shelton Engineering Contractors, Ltd., subcontractor, filed an assumpsit action against Mark Construction, Inc., the prime contractor, and Bank of Hawaii, garnishee, on November 4, 1966. Five months later, the subcontractor filed a notice of mechanic’s and materialman’s lien affecting forty-four lots in the Enchanted Hill Estates, Unit VII, and subseq...
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*254 OPINION OP THE COURT BY Plaintiffs 1 sued Max M. Broida, trustee for Broida Properties, Ltd., a dissolved corporation, to recover alleged overpayments of rent. Prior to dissolution, Broida Properties, Ltd., hereinafter called Broida, was the lessee by assignment from another Hawaii corporation of several parcels of land, two of which were subject to pre-existing s...
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*234 OPINION OB’ THE COURT BY Plaintiff sued the maker and guarantors of a promissory note dated October 6, 1964, in the principal amount of $18,486.94 for advertising services rendered. The court entered judgment by stipulation against Clark Enterprises and Charles G-. Clark and summary judgment against Edwin N. Tamura in the principal amount of $18,486.94 plus interest of $1,47...
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Appellee, Vernon Rice, on June 13, 1969, moved to dismiss the appeal of appellant, Robert Redland, because the record on appeal was not timely filed. The motion was accompanied by movant’s brief or memorandum of authorities as required by Rule 6, Wyoming Supreme Court Rules. Appellant has this day filed a purported motion for an order permitting the late filing of the record on appeal. He has not,...
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Fifi Belondon was convicted in municipal court of three separate offenses involving the violation of city ordinances of Cas-per. She appealed each conviction to the district court of Natrona County, where on trial de novo she was again found guilty in each case and sentenced to 30 days in the city jail for each offense. Each conviction has been appealed to our court. The first charge was for so...
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delivered the opinion of the court. James C. Kennedy brought action for divorce against Corinne Kennedy, alleging a marriage of twenty years, two children of the marriage, Sandra, nineteen, Terry, thirteen; charging intolerable indignities; and requesting an equitable division of the property belonging to the parties. Defendant answered, denying generally, asserting some property additional to ...
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June 5, 1967, plaintiff (appellant) Ruth Marie Lepel brought this action for divorce against her husband, defendant (respondent), Gilbert Earl Lepel on the grounds of extreme cruelty. Mr. Lepel “cross-complained” on similar grounds. The parties were married August 5, 1965 and trial was held in January, 1968. The district court entered findings of fact, conclusions of law and judgment granting a...
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This was a habeas corpus proceeding in which the evidence tended to show the following facts. On July 16, 1964, the petitioner, Edward Albert King, was arrested. *89in connection with an attempted burglary-in which a law officer was killed. On July 17, 1964, a criminal complaint charging petitioner and five others with first degree murder was signed. Records of the justice court and the testimony ...
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Plaintiffs (appellants) brought an action against the defendants (respondents) City of Nampa, Members of the Nampa City Council, Nampa Mayor, Chief of Police and the Nampa City Clerk to have declared void Nampa City Ordinance No. 1045, dated the 21st day of February, 1966. By the *97 terms of the ordinance, properties belonging to plaintiffs and to others not parties to the action were annexed ...
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The issue presented by this case is whether a certain lease agreement, to which the appellant is a signatory, gives the appellant control of the lessee’s activities so as to constitute the lessee an employee within the terms of I.C. § 72-1316. 1 The undisputed evidence in this case indicates that sometime prior to August 1, 1965, the appellant, Samuel F. Swayne, entered into an agr...
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456 P.2d 274 (1969) Jo Ann HEIKES and Fern I. Wolaver, Public Trustee In and For the County of Larimer and State of Colorado, Plaintiff in Error, v. FORT COLLINS PRODUCTION CREDIT ASSOCIATION, Defendant in Error. No. 23912. Supreme Court of Colorado, In Department. April 14, 1969. Fischer & Beatty, William H. C. Brown, Fort Collins, for plaintiff in error. Ralph H. Coyte, Sonja E. Warberg, Fo...
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Opinion by This case involves a foreclosure proceeding in which the mortgagor appeared pro se. The parties will be referred to here as they appeared in the trial court, where defendant in error was plaintiff and plaintiff in error was defendant. On April 2, 1968, plaintiff sued defendant for a delinquent principal balance of $126,338.21, together with accrued interest, on certain promissory notes,...
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Opinion by This case involves a foreclosure proceeding in which the mortgagor appeared pro se. The parties will be referred to here as they appeared in the trial court, where defendant in error was plaintiff and plaintiff in error was defendant. On April 2, 1968, plaintiff sued defendant for a delinquent principal balance of $126,338.21, together with accrued interest, on certain promissory notes,...
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Opinion by On the charge of narcotics possession (C.R.S. 1963, 48-5-2), defendant Michael Martinez was found guilty by a jury and sentenced to the State Reformatory. From this judgment, the defendant brings this writ of error urging reversal on several grounds; however, only one of these grounds has sufficient merit to justify consideration. This one assignment of error questions the propriety ...
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délivered the Opinion of the Court. Whether it is necessary for the State to award the contract to provide janitorial and maintenance services and supplies for the Capitol complex by competitive bidding is the issue. We accepted original jurisdiction. ■ Relator, Great Falls Mr. Klean, brought the proceeding to compel the respondent state board of examiners to rescind its action authorizing the sta...
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delivered the Opinion of the Court. A tenant secured a jury verdict of $28,118.30 against a motel owner based upon injuries sustained in a fall while stepping out of a bathtub. The motel owner appeals from the judgment *210entered on this verdict and from denial of his motion for judgment notwithstanding the verdict or for a new trial. On August 16, 1966 plaintiff Letha P. Gunderson (hereafter cal...
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delivered the Opinion of the Court. The plaintiff, Gallatin Trust & Savings Bank, hereinafter referred to as the appellant, filed a motion in the district court of Gallatin County for the purpose of making certain changes in the court’s judgment on remittitur. The motion was denied and the appellant appealed. The judgment on remittitur as rendered by the district court directs in para...
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delivered the Opinion of the Court. Involved is an attack on a jury verdict and the resulting judgment for defendant Earl J. Green, on the basis of the absence of the presiding judge and an affidavit of all twelve jurors certifying that “If the Presiding Judge had been available to answer our questions we certify that the verdict would have been different * * Plaintiffs, Charl...
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Clyde Lewis, an inmate of the Montana State Prison, appearing pro se, has filed with this Court a petition seeking a writ of habeas corpus, wherein he alleges that he was sentenced to a term of 10 years in the District Court of Cascade County, Montana, on June 3, 1965, following his plea of *422guilty of the crime of uttering and delivering a fraudulent cheek, together with two prior convictions, ...
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MEMO OPINION Joseph Bert Richardson, an inmate of the Montana State Prison, appearing pro se, filed with this Court a petition for a writ of habeaus corpus. Petitioner asserts that his plea of guilty to the crime of first degree burglary in the district court of Hill County, Montana, on July 29, 1968, was secured by coercion and duress. To support this contention petitioner states that when he and...
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delivered the Opinion of the Court. This is an appeal from a judgment entered in the district court of the eighteenth judicial district in favor of the defendants Gallatin County and the State Board of Equalization, hereinafter referred to as “respondent”, and against the plaintiff, Cherry Lane Farms of Montana, Inc., hereinafter referred to as “appellant”. The facts of this case can ...
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delivered the Opinion of the Court. This is an appeal from a summary judgment granted in favor of the Milk Control Board against Hartford Accident & Indemnity Company in the district court of Lewis and Clark County. The Montana Milk Control Board, hereinafter referred to as the respondent, brought this action against the bonding company, hereinafter referred to as the appellant, pursuant to sectio...
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MEMO OPINION AND ORDER Joseph Hunsinger, an inmate in the Montana state prison, appearing pro se, has filed a petition with this Court entitled “Petition for a Writ of Habeas Corpus or Writ of Certiorari”. *446Petitioner states that an information was filed and a warrant issued for his arrest in Broadwater County on February 25,. 1965. The information charged petitioner with attempted rape and se...
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Original proceeding. In this matter counsel for relator was heard ex parte on March 21, 1969, and on the same date an alternative order to show cause was issued returnable on April 7, 1969. On the return day respondents filed their answer and return to the order to show cause and all parties were heard on oral argument and the matter was taken under advisement by the Court. ' Upon full considerati...
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MEMO OPINION Original proceeding. Petition for writ of habeas corpus filed by Jerry Gallagher, an inmate of the Montana State Prison, appearing pro se. From the petition and accompanying exhibits it appears that an information was filed against Gallagher in the district court of Fergus County on July 21, 1959, charging him with the crime *441of burglary in the first degree. The minutes of the dist...
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Petitioner seeks a writ of habeas corpus. His grounds simply stated are that on January 14, 1966 he was sentenced to a term of five years at the state prison. After serving nineteen months he was released on parole. While on parole he was arrested on a misdemeanor charge. The disposition of the misdemeanor charge is not revealed; but two months later he was notified that his parole was being revok...
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This is an original proceeding in which the applicants seek a supervisory writ under the provisions of Rule 17, M.R.App. Civ.P. From the application it appears that an action is pending in the respondent district court wherein the applicants are defendants and they have individually pleaded counterclaims, and cross-claims and they state that the questions here presented are of law only, that bein...
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This is an original proceeding wherein plaintiff-appellant seeks a stay of execution, temporary restraining order, order to show cause, attorney’s fees, other costs on appeal, and other relief. The relief sought is denied and the petition is dismissed....
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Petitioner Paul Dyer has transmitted a letter dated June '20, 1969, to this Court in respect to his petition for writ of habeas corpus. Since, the petition has been referred to the Montana Defender Project for attention it is ordered that copy of Dyer’s letter be likewise referred so as to enable them to take such action as appears appropriate....
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Defendant, Robert W. Sarber, appeals from the judgment and sentence entered on his conviction by jury of the crime of grand larceny. He was sentenced to a maximum of 15 years in a state penal institution. On the morning of November 10, 1967, Detective Joe Duty and Detective Anchors were at the Fort Lawton pharmacy investigating a safe burglary. About that time, Detective Owen C. McKenna of the Sea...
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This is an original proceeding to obtain a writ of mandamus addressed to the respondent, William R. Conte, Director of the Washington State Department of Institutions, directing him to cease and desist from taking any further action in the administration and enforcement of any of the provisions of Laws of 1967, ch. 141, on the grounds of their alleged contravention of our state and federal consti...
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(dissenting) — My disagreement with the majority opinion is not so much in result as it is in a philosophy of the proper role of the judiciary in review of administrative procedures. I can and do subscribe to much that the majority states as to separation of the function of prosecutor and adjudicator, but should courts prejudge a bias or prejudice of an administrative tribunal? This case presents ...
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This case presents a question of first impression in this state. When two companies issue insurance policies covering the same occurrence that gives rise to a possible liability and both policies describe the coverage as being excess insurance over any other valid and collectible insurance, which insurance company shall bear the loss, if any? *250 Wendy J. Bundt, while driving an automobi...
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Plaintiff rented a truck from Truck Rentals, Inc. As part of the rental charge, plaintiff paid an insurance premium to defendant, Colonial Insurance Company of California. Insofar as material, the policy provided: The insurance under this policy shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under another policy or other...
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The sole question on appeal is whether the state is liable for interest upon a judgment entered against it pursuant to the state “Tort Claims Act,” which provides: The state of Washington, whether acting' in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. (RCW 4.92.090) June ...
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Defendant appeals from a judgment of the court finding him guilty of violating the Uniform Narcotic Drug Act (RCW 69.33) and from the sentence which ordered him committed to the State Department of Institutions for a maximum term of not more than 20 years. *235 June 28, 1967, John R. Parish, an agent of the Federal Bureau of Narcotics, executed an affidavit for purposes of obtaining a warra...
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Some individuals cannot stand sudden prosperity. Defendant made a conspicuous but unlikely display of affluence, and it caused his undoing when a jury found him guilty of burglary. Mark Drobney’s All American Service Station at 9th and Birch Streets in Walla Walla was burglarized during the late hours of December 27 or early morning hours of December 28, 1967. At defendant’s trial, Mr. Drobney ...
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November 29, 1966, defendant pleaded guilty to illegal possession of a pistol. An order for a deferred sentence was entered and defendant placed on probation for 2 years. September 30, 1968, upon motion and after hearing, an order was entered revoking the order for deferred sentence. *248 Defendant appeals from entry of judgment and sentence upon his 1966 plea of guilty. At all times, .incl...
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Nor val Houston Gilmore, an osteopathic physician, was convicted by a jury of 12 counts of obtaining a narcotic drug by fraud, deceit, misrepresentation, or subterfuge in violation of the Uniform Narcotic Drug Act. (RCW 69.33) From entry of the judgment and sentence he has appealed. The facts, as established from the trial record, are that during the period from August, 1966 to January, 1967, s...
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The appellant was charged with an unlawful sale of a narcotic drug (marijuana), in violation of RCW 69.33.230, which provides: It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter. *369 He was found guilty upon evidence which showed that the sale was mad...
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The appellant was charged with the crime of willfully omitting to furnish necessary food, clothing, shelter, or medical attendance for his two children under the age of 16 years (RCW 26.20.030). The matter was tried to the court, which found the appellant guilty and imposed a suspended sentence, conditioned on the appellant’s payment of $90 per month in the future for the support of his children....
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This is an appeal from a summary judgment of dismissal entered upon the motion of the defendants to a complaint for medical malpractice. Defendants stated their motion for summary judgment as follows: [Defendants . . . move the Court for an order of dismissal . . . on the grounds that the claim is barred by the statute of limitations and on the ground that no damage occurred to plaintiffs as th...
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Defendant appeals from a judgment and sentence entered after a jury had returned a verdict, finding him guilty of robbery. The information filed against defendant is definite. 1 It described date, place of occurrence, from whom the money was stolen, and details of the alleged robbery defendant was accused of perpetrating. 2 It is beyond dispute that defendant was informed of and knew of tha...
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Plaintiff, for her benefit and for the benefit of four surviving children of her deceased husband, brings *266 this action for damages for the alleged wrongful death of her husband. Plaintiff appeals from an order dismissing her 'action with prejudice entered after the trial court had sustained a challenge to the sufficiency of plaintiff’s evidence. At the outset, we are aware...
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It had snowed in Seattle the night before, partly obscuring the white lane lines on North Greenwood Avenue near 140th, and it was snowing when the accident happened. By 7:45 that morning of December 23, 1965, traffic had formed tracks in the snow substantially defining the two southbound lanes. Greenwood Avenue is a 4-lane arterial street running north and south. Plaintiff, Trudy McCain, testif...
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Wesley E. Stambach was convicted of grand larceny as a result of his participation in the robbery of a hobby shop in Auburn, Washington on August 28, 1967. From his conviction and sentence based on the jury’s verdict, he has appealed. Defendant’s defense was alibi. He and another witness testified that he was in Kellogg, Idaho on August 28,1967 when the robbery occurred. By way of rebuttal...
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Petitioner, Brent Ian McDonald, who became 18 years of age April 22, 1969, seeks appellate review by a writ of certiorari of two orders entered by the Juvenile Court of Clallam County. No useful purpose would be served by delineating petitioner’s transgressions, which led to his commitment. A short chronology will suffice. After a hearing December 27, 1967, an order was entered January 11, 1968, d...
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Appellants were convicted of the crimes of robbery and burglary by mechanical means on October 1, 1965. From the conviction and sentence they appeal. During the early morning hours of June 12, 1965, two men held Rupert M. Paty, purchasing agent for the Western Janitor Supply, Inc., at gun point while they robbed its premises. At approximately 1:30 a.m. of that morning, two liquor enforcement ag...
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This is an action by Gail S. Carver as plaintiff for damages resulting from injuries which she sustained when a cottonwood tree fell upon a public highway upon which she was driving. At the conclusion of plaintiff’s evidence the trial court directed a verdict in favor of the defendants Salt River Valley Water Users’ Association and Maricopa County. From the judgment entered thereon plaintiff appe...
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County of Yuma, State of Arizona; Travis Yancey, Sheriff of Yuma County; and Earl W. Keenum, petitioners in this case—hereinafter referred to as defendants ■—petitioned for and have been granted a review from a decision of the Court of Appeals, Division One, which reversed an order and judgment of the Yuma County Superior Court granting the defendants1' motion to dismiss the complaint on the gr...
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The defendant, Johnny Delgado Parra, was found guilty by jury of a charge of illegal possession of marihuana with a prior. He was sentenced to not less than ten years nor more than ten years and one day at the state prison. Prior to the trial the defendant’s motion to suppress all evidence seized under a search warrant was denied. The pertinent facts indicate that initially the defendant was ar...
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This petition for an injunction filed December 12, 1968, invokes the original jurisdiction of this court, Constitution of Arizona, Art. VI, Sec. V, A.R.S. It is by W. W. Jarvis on behalf of himself and others who irrigate 33,000 acres of land in the Avra and Altar Valleys by means of wells pumping percolating waters. The action is directed principally against the City of Tucson, a municipal corpor...
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Carlos Billy Hughes, hereinafter referred to as defendant, was tried and convicted of the crime of rape, first degree, in violation of A.R.S. § 13-611. Defendant was sentenced to serve not less than ten nor more than twelve years at the Arizona State Prison. Defense counsel filed a memorandum with this Court indicating that he had searched the record and had found no error in the proceedings in...
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This is an appeal by defendants from a judgment in the sum of $30,000 entered against them, and from a denial of their motion for a new trial. In May 1962 appellee Harris was working for defendants Foley-Jelco who were engaged in the construction of a transmission line from the Four Corners area to Phoenix. He was injured when a crane collapsed and fell against a tower on which he and othe...
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Plaintiff-appellant, Ellen Moore, filed suit for divorce against defendant-appellee, Robert Lester Moore, in June,. 1966. On March 24, 1967, an absolute decree of divorce was entered. On May 8, 1967, a petition for “modification” of the decree as to the community property division was filed to settle a dispute over the actual amounts owed monthly. The husband had been allowed to pay his wife in i...
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This is an appeal from a judgment declaring a mortgage lien on real property to-be superior to a seller’s equitable interest reserved in an agreement relating to the. same property and foreclosing the mortgage lien. The following persons and organizations-were involved in the events which led up to the judgment of foreclosure and appeal therefrom: Winston F. Wright and his wife Lela R. Wri...
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Defendant-appellant, Guy Martin Walls, was informed against for the crime of burglary. The jury returned a verdict of guilty of second degree burglary, and judgment was entered thereon. Defendant was sentenced to not less than three nor more than four years. Prior to the close of the presentation of ■the State’s case, a conference was held in chambers with defense counsel and the County Attorney p...
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This case involves an accident in which a small boy was run over after he had placed himself immediately in front of the front grille of a temporarily stopped but idling truck which was being used for garbage collection. There was a jury verdict for the driver of the truck and his municipality employer, and appellants seek to persuade us that “* * * an accumulation of errors during the course of ...
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10 Ariz. App. 95 (1969) 456 P.2d 415 Johnnie Lee WASHINGTON, Appellant, v. The STATE of Arizona, Appellee. No. 2 CA-CIV 621. Court of Appeals of Arizona. July 9, 1969. Rehearing Denied September 5, 1969. *96 Johnnie Lee Washington, in pro. per. Gary K. Nelson, Atty. Gen., Phoenix, Thomas M. Tuggle, Asst. Atty. Gen., Phoenix, for appellee. KRUCKER, Judge. This is an appeal from an order of the Sup...
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This is an appeal from an order of the Superior Court of Pinal County denying an application for a writ of habeas corpus to appellant, Johnnie Lee Washington. The sole question for determination before this court is the starting date of appellant’s sentence to the Arizona State Prison. He was sentencéd from the Maricopa County Superior Court in two different actions involving two separate informat...
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OPINION By the Court, A jury found Michael Martin Boone and Paul Harvey Baldwin guilty of attempted robbery. They seek a reversal on four *451 grounds: (1) the trial judge erred in permitting two witnesses to the crime to make in-court identifications of Boone and Baldwin; (2) Boone’s sweater, State’s Exhibit “F”, was improperly received in evidence; (3) the victim’s reference to her assail...
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OPINION By the Court, This appeal is from the granting of a motion for summary judgment resulting in a final judgment of the district court wherein the ownership of a structure erected on leased premises by a state bank is recognized; the county assessor is required to assess the taxes against the structure as the real *397 property of the bank; and, the bank is authoriz...
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*391 OPINION By the Court, This is an original application for habeas corpus in this court. Petitioner was convicted of grand larceny and sentenced on November 30, 1966, to a 2 to 14 year term in the penitentiary. On February 12, 1968, the State Parole Board granted petitioner parole pending the furnishing of a plan for rehabilitation. Before his release was effected, information was rece...
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OPINION By the Court, This is an appeal from conviction of the infamous crime against nature contending that the statute upon which the charge was brought is unconstitutional. We disagree, and affirm the conviction. Appellant was convicted of the infamous crime against nature against a 12 year old victim. Evidence showed he forced the victim to accept appellant’s penis into his mouth. Appel...
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*420 OPINION By the Court, This appeal is from a conviction for possession of narcotics and denial of a motion for new trial. We affirm both the conviction and the order. On May 21, 1966, at approximately 11:30 p.m., appellant, Hosie Oliver, and Johnny Benson were observed by Officers Patrick Stevens and Walter Allen standing at an intersection in Las Vegas, Nevada. Officer Stevens observ...
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*475 OPINION By the Court, This is an adoption proceeding. Deborah, age ten at the time of the filing of the petition, was born to Gerald and Shelvie Casper. Shortly after her birth Gerald left Deborah and her mother who was compelled to seek welfare assistance for support. Thereafter for a few months he paid $12.00 per week. In 1960 he was convicted of first degree murder and sentenced to ...
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*472 OPINION By the Court, This case concerns two option agreements for the purchase of parcels of real property at Lake Tahoe. The optionee, Maloff, brought suit against the optionor, B-Neva, Inc., to recover $20,000 paid as consideration for the options. The district court held that the optionee had not exercised his options and had forfeited the consideration paid for them. From the judg...
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OPINION By the Court, Appellant, Ned Williams, was arrested in Las Vegas on the charge of carrying a dangerous weapon in his automobile, which offense is a misdemeanor and a violation of Las Vegas, Nev., Code § 6-3-7 (1960). The police officer who signed the complaint against Williams did so in the presence of a notary public rather than before a magistrate, as prescribed in NRS 171.102.1 Williams...
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*446 OPINION By the Court, The petitioner, P. Michael Marfisi, seeks a writ of prohibition to prevent the respondent court and judge from proceeding with a criminal action on the ground that 1969 Statutes of Nevada, Chapter 251, precludes the petitioner, who is the assistant city attorney of the city of Elko, Nevada, from continuing to defend Leon Harley Anderson, an indigent, charged with ...
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*416OPINION By the Court, Appellant was convicted of felony drunk driving and sentenced to two years imprisonment in the penitentiary. Respondent confesses error on the principal issue of the appeal. We reverse the conviction and remand for a new trial. Appellant, after having consumed some intoxicating beverages, was driving south on South Virginia Street in Reno. He ran into the rear end of a st...
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OPINION By the Court, This is an appeal from a conviction of grand larceny. We affirm the conviction. Appellant and Reianne Melody Boley were charged with taking checks of the face value of $781.00 and currency in the amount of $39.00 from the open safe in the office of Dr. William Mason, Fallon, Nevada, on July 27, 1967. *468 During the joint trial of both defendants, Reianne changed h...
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OPINION This is an appeal from an order of the district court denying Prescott’s pre-trial petition for a writ of habeas corpus. His petition did not challenge the jurisdiction of the court, the sufficiency of the evidence to hold him for trial, nor does it assert that a public offense was not charged. He does attack the legality of his arrest, and the admissibility of evidence which he claims ...
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OPINION By the Court, This action was originally commenced on March 23, 1965, when the respondent filed a complaint against the appellant seeking the restoration of certain premises, together with rental *443 due and owing, penalties and costs. Thereafter followed a series of motions, dismissals, refilings, filings of amended complaints, et cetera, all immaterial to this appeal, until Febru...
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Appellants have appealed from an adverse jury verdict rendered in a personal injury suit. Plaintiff, Mrs. Bennett, went to defendant Anchorage Hotel Beauty Salon at 5 p. m., on May 17, 1966, to have her hair dyed. She requested that a Lady Clairol product “Loving Care,” be used; and defendant Janet Maddocks, a beauty operator, applied the dye to Mrs. Bennett. A patch test, a means of deter...
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After a trial without a jury in the district court, appellants, Jack Martin and Antoinette Genis, were each convicted of violating Fairbanks City Ordinance § 4.408(c) 1 by allowing minors to remain on premises licensed to sell intoxicating beverages. Appellant Genis was also convicted on another count under the same ordinance: serving liquor to minors. On appeal to the superior court appellants...
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OPINION Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ- In the district court a jury found appellant guilty of driving while under the influence of intoxicating liquor. The conviction was affirmed by the superior court. An appeal has been taken to this court where appellant contends that the state failed to prove his guilt beyond a reasonable doubt. Appellant did not mo...
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In a trial by the district court without a jur,y, appellant was convicted of the offense of assignation,1 a misdemeanor. The judgment of conviction was affirmed by the superior court. An appeal was then taken to this court. Appellant’s first point is that she was not adequately advised of her right to counsel under the requirements of Miranda v. Arizona,2 and therefore her signed statement in whic...
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In a condemnation action brought by the state a master’s report was filed on August 21, 1967, valuing appellants’ land at $8,610. On September 28, 1967 appellants Ruth Coffin and D. W. Collart filed a notice of appeal from the master’s report. On the appeal a jury trial was held and a verdict returned valuing appellants’ land at $14,976.1 *481Approximately two weeks after the jury’s verdict was re...
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Plaintiff brought an action under both the Employer’s Liability Act and common law negligence for damages resulting from a fall from a roof while she was employed by defendant. The jury returned a verdict for defendant and plaintiff filed a motion for a new trial. Defendant appealed from an order granting the new trial. At the time of the accident plaintiff was repairing the roof on a building by ...
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Plaintiff, a truck driver injured in a crossing collision with a railroad car during a switching operation, appeals from an order granting the railroad a new trial after a jury had awarded the plaintiff $3,200 damages. The new trial was ordered because the trial court became convinced after the verdict that it had erroneously given a requested instruction on “future” damages. As the eviden...
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In this post-conviction proceeding Jensen alleged that his original conviction of first degree murder should he set aside because confessions admitted in evidence were not voluntary; a change of venue should have been allowed; that he was prejudiced by pre-trial publicity and his defense counsel had not properly represented him. The charges against defense counsel concern remarks made to the jury...
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Defendant appeals a conviction of the possession of narcotics claiming there was insufficient evidence to connect him with possession of the narcotics and that his motion for a directed verdict should have been allowed. His prime reliance is upon some similarity in the evidence of this case to that of State v. Oare, 1968, 249 Or 597, 439 P2d 885. There is evidence in the instant record to compe...
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Petitioner appeals from an order dismissing his petition for post-conviction relief, which order was entered after a demurrer to such petition had been sustained and petitioner declined to plead further. Petitioner was convicted of the crime of burglary *568 not in a dwelling and sentenced to the penitentiary on December 9, 1963. From such conviction he appealed to this court (State v. Hayne...
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This is an action to recover damages for personal injuries received by plaintiff when her automobile collided with a truck owned by defendant county. The jury returned a verdict for defendants. Plaintiff moved for a new trial on the ground that one of the jurors had made an unauthorized visit to the scene of the accident when the case was in progress. The motion was denied and plaintiff appeals. ...
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Defendant Michael Murray Stevens was convicted in Lane County in September, 1966, for obtaining money and property under false pretenses. He was thereupon sentenced for a term not to exceed 18 months in the Oregon Correctional Institution. The trial court suspended execution of the sentence and placed defendant on probation for a period of three years. During the probationary period, defendant wa...
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The defendant Karl Nathan Rush entered a plea of not guilty in the District Court for Lane County for the crime of driving while under the influence of intoxicating liquor. The district court found him guilty and he appealed his conviction to the Circuit Court of Lane County. Before trial in the circuit court, defendant filed a motion in the circuit court to set aside the complaint for the reason...
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The defendant George Williams was convicted of illegal possession of marijuana and Heroin. From the judgment entered, he appeals. The defendant assigns as error the trial court’s failure to sustain his motion to suppress the evidence of marijuana and Heroin found upon his person. The facts disclose that two Portland police officers of the narcotics detail were informed by an unidentified pers...
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In this appeal, an injured workman asks us to overrule Dimitroff v. State Ind. Acc. Com., 209 Or 316, 306 P2d 398 (1957), and reinstate Hinkle v. State Ind. Acc. Com., 163 Or 395, 97 P2d 725 (1940), which in turn had been overruled by Dimitroff. The workman alleged that he had sustained a permanent partial disability, and the State Compensation Department denied that his injury had left permanent ...
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On February 18, 1965, the decedent, Nell Kathryn McCue executed a will. The parties have stipulated that the will was valid when executed. In May 1967, following Miss McCue’s death, the will was found in a drawer in her office desk. The name of the principal beneficiary of the will, and the person named as executor, (the will used the word “administrator”) had been excised from the typewritten pag...
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This is an action by a real estate broker to recover a sales commission under a non-exclusive listing agreement. Defendants appeal from a judgment awarding plaintiff a commission of $6,500 plus interest. Plaintiff is a real estate broker licensed under the laws of both Oregon and Washington. On June 22, 1965 plaintiff’s agents, Cecil Emert and Ollie Seder-dale, who were licensed real estat...
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456 P.2d 507 (1969) ARKANSAS-LOUISIANA GAS COMPANY and U.S. Fidelity & Guaranty Company, Petitioners, v. Virgil BLACKWOOD and the State Industrial Court of the State of Oklahoma, Respondents. No. 42956. Supreme Court of Oklahoma. July 1, 1969. H.R. Palmer, Sr., Harry R. Palmer, Jr., Oklahoma City, for petitioners. J. Clark Russell, Oklahoma City, G.T. Blankenship, Atty. Gen., for respondents....
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This is an appeal by Carl Harrison and Vernon Harrison, copartners, d/b/a The Quality Packing Company (defendants below) from a judgment in favor of Ben Perry, et al (plaintiffs below), whereby the defendants were enjoined from the keeping or slaughtering of livestock of any kind upon Lots 1 to 8, Block 6, Morriston Addition to Oklahoma City, Oklahoma, until such time as such use of said property...
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Leroy Hull and Doris June Hull (defendants below) appeal from a judgment in favor of C. F. Bullard, et al. (plaintiffs below) whereby the Hulls were enjoined from using Lot 1, Block 8, Sec. 2, Bush Hills Sixth Addition to Oklahoma City, Oklahoma, for any purpose other than for residential, use, and more especially from *518conducting a beauty parlor or salon upon the property. The parties will be ...
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Plaintiff filed suit for personal injuries arising out of an accident that occurred on U.S. Hwy. 77 about 5.6 miles north of Ardmore at approximately 4:45 P.M. during daylight hours. Plaintiff alleged that defendant was negligent in stopping her vehicle on the paved portion of the highway when she could have pulled off on the shoulder in violation of 47 O.S.1961, Section 11-1001 (a), abandoning t...
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Plaintiff in the trial court, Walter Nash-ert and Sons, Inc., a building contractor, was the successful bidder on a contract for the construction of a dormitory on the campus of southwestern State College at Weatherford, Oklahoma. In the course of preparing its bid as the general contractor, plaintiff called for bids on various items from sub-contractors. It accepted a bid of $4800 from Mr. H for...
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Mamie Reed (defendant below) appeals from a divorce decree rendered in the trial court, complaining that the lower court erred in its determination of the length of her marriage with Harry C. Reed (plaintiff below) and erred in the division made of the jointly acquired property between the parties. She also complains there was error in not awarding her alimony, and in not allowing sufficient atto...
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The sole issue presented in this appeal is whether a written contract relating to the sale of real property and thus within the statute of frauds, 15 O.S.1961, § 136, may be amended by a subsequent executed oral agreement. Plaintiff below, defendant in error herein, and defendants executed a written contract in October, 1960, by which plaintiff agreed to sell and defendants agreed to buy certain d...
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This is an original action for mandamus by the plaintiff, State of Oklahoma on relation of the Attorney General, against the Boards of County Commissioners and the Excise Boards, and the individual members thereof, of Atoka and Coal Counties. Briefly stated the facts are that appropriations were made in Atoka and Coal Counties to pay one-half of the salary of one assistant district attorne...
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This proceeding to review an award of the State Industrial Court presents the question of whether that court is authorized by law to enter an award in favor of a claimant, who happens to be a deaf mute, for compensation based upon a reduction in claimant’s ability to use his left hand to form “hand signals” or to converse with others using the “sign language”, which was the incidental effect of...
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MEMORANDUM DECISION This appeal is taken from a judgment of the district court in favor of the State of Oklahoma, ex rel. William H. Mattingly, District Attorney of Osage County, in an action against the plaintiff in error, a corporation, hereinafter referred to as defendant corporation, for owning rural land as an agricultural corporation in violation of Art. 22, § 2, of the Constitution. The ...
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456 P.2d 545 (1969) CHOCTAW COUNTY EXCISE BOARD, Plaintiff in Error, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Defendant in Error. No. 41922. Supreme Court of Oklahoma. July 15, 1969. Phil McColgin, County Atty. of Choctaw County, Lon Kile, Hugo, for plaintiff in error. E.D. Grinnell, Jr., St. Louis, Mo., Franklin, Harmon & Satterfield, Oklahoma City, for defendant in error. ...
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This is an appeal from the District Court of Lincoln County, State of Oklahoma, wherein the plaintiff in error, Ronald Thomas Koonce, hereinafter referred to as defendant, was tried and convicted of the crime of Murder and sentenced by the jury to suffer the penalty of death. Judgment and sentence was pronounced in accordance with the verdict of the jury on De *552 cember 28, 1967, from which d...
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MEMORANDUM OPINION AND ORDER In an original proceeding Gary Wendell Fryar, an inmate of the federal penitentiary at Leavenworth, Kansas, had petitioned this Court for a writ of mandamus to direct the District Court of Pontotoc County, Oklahoma, to grant him a speedy trial or dismiss the charges pending against him in that county. In consideration of petitioner’s request, this Court by opinion date...
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This is an appeal from a citation for direct contempt of Court imposed upon Mr. J. B. Champion, Jr., an attorney in Ard- *572 more, Oklahoma, by District Judge Kenneth Shilling, of the Twentieth Judicial District of Oklahoma. The citation is essentially premised upon the attorney’s actions and comments made in the presence of the trial court during the proceedings which preceded the trial of E....
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Felix Fesmire, Jr., defendant below, was sentenced on the 17th day of November, 1967, on his plea of guilty, in the District Court of Roger Mills County, Case No. *575 1144 (our number A-14606 on appeal), to life imprisonment for the crime of murdering Felix Fesmire, Sr.; on the same day Felix Fesmire, Jr. was sentenced, on his plea of guilty, in the District Court of Roger Mills County, Case N...
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456 P.2d 587 (1969) James Franklin BEAIRD, Jr., Petitioner, v. Honorable Fenton RAMEY, District Judge, Oklahoma County, Oklahoma, Respondent. No. A-15370. Court of Criminal Appeals of Oklahoma. June 18, 1969. Herbert K. Hyde, Jr., Oklahoma City, for petitioner. Curtis Harris, Dist. Atty., Oklahoma County, for respondent. *588 MEMORANDUM OPINION NIX, Judge. A preliminary was held in the above st...
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This is an original proceeding in which petitioner, James M. Chase, seeks a writ of habeas corpus to release him from his present incarceration in the state penitentiary resulting from a revoked parole. The primary issues raised in this proceeding are: (1) did the petitioner, while on parole, voluntarily return to imprisonment and is *592 he thus entitled to credit for the time spent on parole ...
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This is an appeal by Jackie Eugene Roberson, hereinafter referred to as defendant, from a conviction in the district court of Tulsa County, on a charge of assault with a deadly weapon, after former conviction of a felony. Defendant was tried to a jury, found guilty, and his punishment fixed at 50 years in the state penitentiary. Defendant’s motion for a new trial sets out 13 errors. He lists 14 er...
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MEMORANDUM OPINION Donald Gene Lay, hereinafter referred to as defendant, was charged by Information in the District Court of Garfield County with the crime of Kidnapping. He entered a plea of not guilty by and through his court-appointed attorney; withdrew said plea of not guilty for the purpose of filing a Motion to Make the Information More Definite and Certain; and thereafter reentered his ple...
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MEMORANDUM OPINION Plaintiff in error, Benny Brown, hereafter called defendant, was tried by a jury *605 in the district court of Seminole County, Oklahoma, for the crime of Carrying a Weapon, After Former Conviction of a Felony. The jury returned a verdict of guilty and assessed defendant’s punishment at three years confinement in the state penitentiary, after which this app...
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Plaintiff in Error, William J. Penn, hereinafter referred to as defendant was charged by Information in the District Court of Creek County, Oklahoma, with the crime of murder. The matter came on for jury trial before the judge of said District Court on October 5, 1966. On October 6, 1966, the jury returned a verdict finding the defendant guilty of the included offense of Manslaughter of the Fir...
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456 P.2d 610 (1969) Riley Mitchell JONES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. No. A-14341. Court of Criminal Appeals of Oklahoma. April 9, 1969. Rehearing Denied April 23, 1969. Jay D. Dalton, Tulsa, for plaintiff in error. G.T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error. *611 BRETT, Presiding Judge. Plaintiff in error, Riley Mi...
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Plaintiff in Error hereinafter referred to as defendant, was convicted on the 17th day of March, 1967, for' the crime of unauthorized use of a Motor Vehicle after former conviction of a felony and his punishment was fixed at six years in the State Penitentiary. The defendant’s Motion for New Trial alleges 19 assignments of error. The defendant’s Petition in Error alleges 19 assignments of error...
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Herbert Hill, hereinafter referred to as defendant was charged, tried, and convicted in the District Court of Oklahoma County with the crime of Grand Larceny After Former Conviction of a Felony; his punishment fixed at ten years imprisonment in the State Penitentiary, and he appeals. The facts adduced on the trial reveal that one Eldon Roberts, the Assistant Manager of Safeway Store No. 114, testi...
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MEMORANDUM OPINION Plaintiff in Error, Albert Robert Snaw-der, was tried and convicted in the Municipal Criminal Court of Tulsa for the offense of “Actual Physical Control of a Motor Vehicle While Under the Influence of Intoxicating Liquor”. His punishment was fixed at Ten Days in jail and a Three Hundred Dollar fine, from which he has perfected his appeal. The Court, after having considered the e...
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MEMORANDUM OPINION The plaintiff in error, hereinafter referred to as the defendant, was charged with the crime of Robbery with Firearms in the District Court of Oklahoma County. He was tried before a jury, found guilty, and sentenced to life imprisonment. He appeals as an indigent represented by the Legal Aid Society of Oklahoma County, Inc., and was furnished a casemade at public expense. H...
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MEMORANDUM OPINION Daynne Dunlap Klinekole, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Harmon County with the crime of burglary in the Second Degree and his punishment fixed at two years imprisonment in the state penitentiary. From said judgment and sentence, he appeals. During the trial of this cause Ed Sargo testified that at 11:00 p. m....
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MEMORANDUM OPINION Phillip Wayne Smith, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County for the crime of Burglary in the Second Degree; his punishment was assessed at four years imprisonment in the State Penitentiary, and he appeals. On the trial, Police Officer Paul Reed of the Oklahoma City Police Department, testified that he was ...
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Plaintiff in Error, Ivan Ellis Pearce, hereafter referred to as defendant, was charged by amended information in the District Court of Cleveland County with the crime of Robbery with firearms, after former conviction of a felony. On February 20, 1968, defendant’s trial was conducted in a two-stage proceeding, and the jury’s verdict was returned the same day. At the conclusion of the first stage o...
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Defendant appeals from a judgment of the Superior Court of Los Angeles County convicting him upon a jury verdict of first degree murder. (Pen. Code, § 187.) The jury returned the death penalty. As a result, this appeal is automatic. (Pen. Code, § 1239, subd. (b).) On April 22, 1965, we reversed a similar judgment against defendant and his then codefendant because a. confession was admitted into ev...
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71 Cal. 2d 566 (1969) 456 P.2d 645 79 Cal. Rptr. 77 PURDY & FITZPATRICK, Plaintiff and Respondent, v. STATE OF CALIFORNIA et al., Defendants and Appellants. PETER J. MOTSHAGEN, Plaintiff and Respondent, v. STATE OF CALIFORNIA et al., Defendants and Appellants. Docket Nos. L.A. 29602, 29603. Supreme Court of California. In Bank. July 1, 1969. *568 Thomas C. Lynch, Attorney General, and Edward ...
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Donald Floyd Ketchel and Thomas Edward Sears were found guilty of first degree murder and first degree robbery. The jury imposed the death penalty for the murder.' On appeal, we reversed the judgments insofar as they related to the death penalty. (People v. Ketchel (1963) 59 Cal.2d 503 [30 Cal.Rptr. 538, 381 P.2d 394],)1 Upon retrial, the jury again imposed the death penalty. We reversed these jud...
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71 Cal.2d 659 (1969) 456 P.2d 674 79 Cal. Rptr. 106 EVA BARRERA, Plaintiff, Cross-defendant and Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant, Cross-complainant and Respondent. Docket No. S.F. 22313. Supreme Court of California. In Bank. July 8, 1969. *662 Boccardo, Blum, Lull, Niland, Teerlink & Bell and Edward J. Niland for Plaintiff, Cross-defendant and Appellant....
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Jack Y. Warren, Sr., and his wife, and J. W. Sessums, and his wife, were the operators and ostensible owners of J & J Food Centers, Inc., a Washington corporation. The corporation became a lessee of space for a grocery-store in Martin Selig’s shopping center. The relevant provisions of the lease were as follows: The term of this lease shall be for twenty years and no months, and -shall com...
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(dissenting) — The majority of this court has determined that a young man, charged with an offense *166for which the punishment may mean deprivation of liberty for a year of his life, is not entitled to be represented by counsel unless he can afford to pay the lawyer’s fee. In doing so, it has recognized that, if the defendant were a year or so younger and had been brought before the juvenile cour...
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delivered the opinion of the Court. James Edward Holmes, hereinafter designated as the petitioner, pleaded guilty to a charge of armed robbery in Mississippi in March of 1961 and was sentenced to life imprisonment. Thereafter, he escaped from confinement. On November 21, 1967, the Governor of Mississippi issued his request to the Governor of the State of Colorado that petitioner be extradited t...
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Opinion by The husband of defendant in error lost his life in an airplane accident. She brought action against the plaintiff in error insurance company to recover under a $5,000 accident policy. The case was presented to the district court under a stipulated set of facts, and the plaintiff prevailed. The pivotal question involved, as we view the matter, is whether the decedent was serving ás a ...
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Opinion by This case involves a workmen’s compensation coverage controversy among three insurers. This writ of error stems from a workmen’s compensation proceeding, but the parties have stipulated that the claimant suffered a *339 compensable injury, resulting in his death, and that dependency benefits are payable. The sole question at issue is: Which of the insurers are liab...
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delivered the opinion of the Court. An interpretation of several related sections of the Workmen’s Compensation Act relative to death benefits is involved in this writ of error. Claimants, a widow and minor child, are admittedly entitled to the statutory máximums under the pertinent sections of the statute relating to them. The question posed herein for our determination is: What disp...
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Opinion by Plaintiffs in error will be referred to as the Kunzmans and defendant in error will be referred to as Union Pacific. The action was commenced by the Kunzmans who alleged in their complaint that they were the owners of eighty acres of land in Weld county which was subject to a 400-foot right-of-way claimed by Union Pacific for railroad purposes. They alleged that from 1902 until 195...
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The parties herein have filed with this court confession *420of error to the errors and cross errors assigned by them respectively in this case. Accordingly, the court being fully advised by the briefs and record herein, orders that the trial court’s findings of fact and conclusions of law be vacated and the judgment entered herein be reversed. The cause is remanded to the trial court for further ...
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The parties herein have filed with this court confession *420of error to the errors and cross errors assigned by them respectively in this case. Accordingly, the court being fully advised by the briefs and record herein, orders that the trial court’s findings of fact and conclusions of law be vacated and the judgment entered herein be reversed. The cause is remanded to the trial court for further ...
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delivered the opinion of the Court. Mrs. Bynon, the plaintiff below, brought action against the defendants in error to recover damages for personal injuries sustained in a fall. The fall took place on premises devoted to multifamily dwellings owned by the individual defendants and managed by the corporate defendant. The jury returned a verdict for the defendants. The plaintiffs son occupied one of...
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On August 18, 1964, respondent was employed by Boise Cascade Corporation, one of the appellants herein, at Emmett, Idaho. While stacking lumber, the respondent twisted his back, experiencing immediate pain. The next day respondent visited Wm. B. Jewell, M.D., of Emmett, who prescribed conservative treatment and referred respondent to Jerome K. Burton, M. D., an orthopedic surgeon practicing in ...
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456 P.2d 757 (1969) 93 Idaho 113 Vicky L. ADAMS, Plaintiff-Respondent, v. Donald L. ADAMS, Defendant-Appellant. No. 10275. Supreme Court of Idaho. July 3, 1969. *758 Donald L. Adams, pro se. Daniel A. Quinlan, Lewiston, for appellee. McQUADE, Justice. Vicky L. Adams and Donald L. Adams were married at Lewiston, Idaho, on August 29, 1959. One child, Michele, was born of this marriage, and she is n...
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This opinion treats together two actions, which were consolidated for trial, since-they arose out of the same transactions. The real plaintiff in this action (respondent on appeal) is the Hunt Process Company (Hunt), a California co-partnership. *119 authorized to do business in Idaho. Hunt has long specialized in doing certain work on highway construction projects: “membrane curin...
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This is an appeal from a jury verdict in favor of Carol Jorstad as guardian ad litem for the children of Morris Koph, deceased. A judgment was obtained against the City of Lewiston on a cause of action arising out of an intersection accident, as a result of which plaintiff’s decedent was killed. In the early morning hours of January 20, 1966, Morris Kopf, driving alone in a 1961 Rambler convert...
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R. D. Eldred, Jr., (Eldred) is a Nebraska construction contractor specializing in the construction of grain storage and handling facilities. C. L. Folkman Company (Folk-man) is a grain company based in Terreton, Idaho. On May 15, 1963, these two parties entered into a contract for the purposes of constructing certain grain storage and handling facilities on the Folkman property. This dispute invo...
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Mr. and Mrs. Henry Rosenberg, the respondents herein, instituted this action against Mr. Carl Toetly, the appellant, to recover damages they sustained in an an *136 tomobile accident allegedly caused by Mr. Toetly’s negligent operation of his automobile. Following a jury trial which resulted in a verdict for Mr. Toetly, the Rosenbergs moved for a new trial, which motion was granted. Mr. Toetly ...
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Appellant, Telesforo Jiminez, was charged with the crime of second degree murder *141 in the death of Andres Gonzales. The case was tried before Hon. Robert B. Dunlap and a twelve-man jury. The jury found the appellant guilty for the crime of voluntary manslaughter. A judgment of conviction was entered on the 24th day of May, 1968. Appellant was sentenced to serve an indeterminate ...
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This opinion treats together two actions which were consolidated for disposition, since they both arose out of the same accident. During the late afternoon of July 23, 1965, plaintiff-respondent David Vincen (Vincen) accompanied by his wife, was driving his employer’s 1955 GMC truck northerly on Highway 28, a two-lane highway, in Lemhi County, Idaho, and near the old mining town of Gilmore. The tr...
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On the afternoon of Feburary 18, 1967, Janet White, defendant below, was changing her second child, a three month old infant. As she afterwards told the doctor at the hospital emergency room where the baby was taken, the baby was screaming, “my mind snapped, and I threw her on the floor.” Mrs. White then picked the baby up and put it in the crib. An hour later, the baby died from what was later...
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*196OPINION OP THE COURT BY Defendants in the two cases were charged with the crime of lewdness for having masturbated in public restrooms in violation of HRS § 768-52(2). In No. 4714, defendant Fuller was first tried in the District Court of Honolulu and was found guilty and sentenced to pay a fine of ¡§25.00. Defendant perfected an appeal to the Circuit Court of the First Circuit demanding a tr...
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delivered the Opinion of the Court. This is an appeal by defendant, John Ray Bouldin, from conviction of the crime of forcible rape and from denial of his motion for a new trial. The case was tried by jury in the district court of Park county before the Hon. Jack D. Shanstrom, district judge, who sentenced defendant to a term of 12years in the state prison. Broadly speaking, defendant was cha...
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Original proceeding. Petition seeks the issuance of appropriate orders or writs to be directed to the defendants. Petitioner was heard ex parte and the request taken under advisement. The Court now being fully advised, it is ordered that the relief requested is denied and the proceeding is dismissed....
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delivered the Opinion of the Court. Plaintiff recovered judgment entered upon a jury verdict for $15,000 as a result of personal injuries sustained in an *288 automobile accident. From an order of the district court granting defendant a new trial, plaintiff appeals. The accident in question occurred about 4:30 p.m. on August 3, 1966 on a county road west of Missoula leadi...
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delivered the Opinion of the Court. An appeal from a conviction from the district court of the thirteenth judicial district, county of Yellowstone. Appellant, Wray Merle Evans, was found guilty on four of seven counts, three being dismissed, of obtaining money and property by false pretenses and sentenced to four years at the Montana state prison on each count, the sentences to run concurrently...
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Appeal by the Board of Pardons from an order entered in the district court of Powell county requiring the board to release from custody Roy George Crosby, Jr., then and now an inmate of the state prison. This action was instituted by Crosby, appearing pro se, upon a petition to the district court. An alternative writ of mandate issued, show cause hearing was held, and the order from which the appe...
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The above-named applies to this Court for an Order setting the amount of appeal bond. Petitioner is represented by counsel and this Court declines to accept pro se applications in such circumstances. However, even if this were not so we would not be inclined to grant the request....
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*438 OPINION By the Court, On January 13, 1966, the appellants filed their complaint charging the respondents, along with some thirty-five other defendants, with the tort of conspiracy. The other thirty-five defendants are not involved in this particular appeal. Following the filing of the complaint there were many motions to take depositions, motions to quash, et cetera, made on behalf of ...
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*432 OPINION By the Court, This is an appeal from an order of the district court granting the respondents’ motion to dismiss for failure to prosecute. The appellant (plaintiff below) filed his complaint with the district court on June 16, 1961, and filed the summons on May 9, 1962. The respondents (defendants below), Peggy Poor Allen answered on April 29, 1964; and, Don...
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*457 OPINION By the Court, This appeal is from a final judgment and an order denying appellant a new trial in a personal injury action arising out of *458 a two-car collision. The jury found for respondent (defendant below),.driver of one vehicle, and against appellant (plaintiff below), a passenger in the other vehicle. We think prejudicial error was committed ...
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OPINION Defendant’s appeal attacks the damage award in this personal injury litigation. The issues are (1) aggravation of a preexisting condition, (2) permanent injury and (3), medical bills. Aggravation of a pre-existing condition. The litigation resulted from an accident involving two pick-up trucks. Prior to the accident plaintiff had experienced five cervical injuries. Four ...
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Upon consideration of Motion for Rehearing, the opinion heretofore filed is withdrawn and the following substituted therefor: OPINION MOISE, Justice. This is the sequel to State ex rel. State Highway Commission v. Chavez, 77 N.M. 104, 419 P.2d 759 (1966), wherein we decided that the trial court had erred in dismissing proceedings to determine damages, if any, resulting to a lesse...
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OPINION This case was filed in the District Court of Santa Fe County, New Mexico, to condemn property in Santa Fe for street purposes. The appeal deals with the property known as Tract 2-7 owned by Joe O. Gonzales and Vangie Gonzales, his wife, defendants-appellees. The case was tried to a jury; however, the trial court, after refusing to allow the City’s expert witness to testify as to marke...
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OPINION Defendant was sentenced to life imprisonment as a habitual criminal. Subsequently, he applied to the district court for post-conviction relief under Rule 93 (§ 21-1-1(93), N.M.S.A.1953). Based solely on the record, a hearing on the Rule 93 motion was denied. We reversed that ruling in State v. Moser, 78 N.M. 212, 430 P.2d 106 (1967) and remanded for a hearing. The hearing has now been h...
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OPINION Defendant was convicted on two charges of aggravated battery. His appeal asserts the trial court erred in: (1) failing to submit a form of verdict covering the defense of insanity at the time the offenses were committed and (2) failing to instruct on lesser included offenses. Section 41-13-3, N.M.S.A.1953 (Repl.Vol. 6, Supp.1967) states in part: “When the defense of 'not guilty by r...
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OPINION The trial court determined that Defendant Sanchez maliciously prosecuted the plaintiff. Sanchez does not attack this ruling. His appeal is concerned with the ■compensatory and exemplary damages awarded to the plaintiff. Sanchez contends these damages are excessive and should be set aside. Compensatory damages. The trial court awarded special damages of $235.74. This is t...
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OPINION This is an appeal by plaintiff from a summary judgment entered in favor of all defendants. We affirm. Plaintiff brought suit to recover damages for the alleged wrongful issuance and service of a search warrant. Defendant Love was at all times material hereto an Assistant District Attorney of Bernalillo County. On July 12, 1966, Mrs. Victoria Gonzales made a complaint to ...
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OPINION Sears, Roebuck & Company appeals from a judgment awarding workmen’s compensation benefits to the plaintiff, H. C. Corzine. Plaintiff asserts that he sustained compensable injuries as a result of engaging in a fight with a fellow employee. The occurrence of the fight, its relation to employment, together with injuries claimed to have been sustained by plaintiff as a result of the fight, we...
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Chester Claudine Richmond, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County with the crime of Burglary in the Second Degree, and from the judgment and sentence assessing his punishment at two years imprisonment in the penitentiary, he appeals. The facts of this case are relatively simple. It was established in the State’s case in chief...
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Terry Womack, hereinafter referred to as defendant, was charged by information in the District Court of Carter County, Oklahoma, with the crime of Shooting With Intent to Kill. He was tried by a jury who found him guilty of the included offense of Assault and Battery With a Dangerous Weapon, and set his punishment at three years imprisonment in the state penitentiary at McAlester. From said judgme...
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Robert J. Muller, Sr. and Frank Muller, hereinafter referred to as defendants, were jointly charged with the offense of Embezzlement by Trustee. They were tried by a jury who found them guilty and left the punishment to be fixed by the court. The trial court fixed the punishment at five years imprisonment in the State Penitentiary and a timely appeal has been perfected to this Court. On appeal ...
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MEMORANDUM OPINION Robert Helms, hereinafter referred to as defendant, was charged in the District Court of Tulsa County with the crime of Murder. Prior to the trial he was twice committed to the Eastern State Hospital for observation and was reported to be capable of distinguishing right from wrong and assisting in the preparation of his defense. The case was called for trial on the 13th day of M...
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This case is before us on a petition to' review a decision of the Court of Appeals which affirmed a judgment for defendant granted by the Superior Court of Pima County. The opinion of the Court of Appeals reported in 9 Ariz.App. 167, 450 P.2d *541 133, is vacated, and the case is remanded for hearing on one issue. Plaintiff-appellant, Rosa Cavazos owned a 1963 Chevrolet and, o...
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104 Ariz. 544 (1969) 456 P.2d 914 NEW YORK UNDERWRITERS INSURANCE COMPANY, a corporation; the Hartford Insurance Group; and Citizens Insurance Company of New Jersey, Petitioners, v. The SUPERIOR COURT of Arizona IN AND FOR the COUNTY OF MARICOPA; and the Honorable William Gooding, a judge thereof; and CIVIL SERVICE EMPLOYEES INSURANCE COMPANY, real party in interest, Respondents. No. 9613. Suprem...
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The New York Underwriters Insurance Company, the Hartford Insurance Group and the Citizens Insurance Company of New Jersey, hereinafter referred to as the petitioners, have petitioned this court for a Writ of Prohibition to prevent the respondents, Superior Court of Arizona and Civil Service Employees Insurance Co., real party in interest therein, from proceeding further in cause No. 194178 in the...
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Frank Moore, hereinafter referred to as the defendant, was adjudged guilty of the crime of First Degree Burglary with a prior conviction, and sentenced to a term of not less than ten nor more than fourteen years in the Arizona State Prison; from his conviction and sentence the defendant appeals. On March 21, 1968, at approximately 3:00 a. m., the defendant burglarized a motor vehicle of the Alfred...
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This case is before us on a petition for review of a decision of the Court of Appeals, Russell v. Industrial Commission, 8 Ariz.App. 563, 448 P.2d 407 (1968), which set aside an award of the Industrial Commission as contrary to the evidence before the Commission. We vacate the decision of the Court of Appeals and affirm the award of the Industrial Commission. On February 3, 1964, petitione...
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This case is before us on a petition for review of a decision of the Court of Appeals affirming an order of the superior court setting aside a judgment and a default. The opinion of the Court of Appeals is reported in 6 Ariz.App. 590, 435 P.2d 719, as modified by a supplemental opinion in 7 Ariz.App. 483, 441 P.2d 249. Plaintiff, Jerry Camacho, was a passenger in an automobile driven by Ra...
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Petitioners filed in this Court for a Writ of Prohibition, Mandamus, or Certiorari in the alternative. On June 3, 1969, after hearing extensive oral arguments, this Court issued an Alternative Writ of Mandamus, and continued in full force and effect the Stay Order of this Court which prevented the Respondents from terminating the employment of the Petitioners, or removing them from the payroll ...
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Appellee Flood Control District of Maricopa County, a municipal corporation— hereinafter referred to as the District— petitioned this Court for and has been granted a review from a decision of the Court of Appeals, Division One, which reversed a summary judgment in favor of the District, and granted judgment in favor of appellants, E. A. and Morris Weintraub—hereinafter referred to as the Weint...
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Defendant Lawrence Jack Williamson was convicted of robbery and sentenced to not less than five nor more than ten years. From his conviction and sentence defendant appeals. Viewing the facts in a light most favorable to the verdict the following events occurred. On the evening of January 28, 1968, defendant pulled into a service station in Phoenix and asked the attendant, one Lautzenheiser, if he ...
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These extraordinary writ proceedings challenge the trial court’s jurisdiction in ordering that a case be replaced on the active calendar. Being of the opinion that the jurisdictional attack was meritorious, we granted certiorari. Although an order vacating an order of dismissal is *99 appealable, Young Mines Co., Ltd. v. Blackburn, 22 Ariz. 199, 196 P. 167 (1921), see also ...
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In this appeal we consider problems raised in two consolidated lawsuits; one for wrongful death of appellee’s husband, Rafael Vasquez, and the other for personal injuries suffered by appellees Arzate. Both suits grew out of a multi-vehicle accident in a severe dust storm on the Phoenix-Tucson Freeway, July 12, 1964. We have recently decided a related case, Arnold v. Frigid Food Express Company,...
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This is an appeal from an order denying Maryland National Insurance Company’s motion to set aside a judgment of forfeiture of an appearance bond posted when Kenneth Mack Hervey was arrested on a fugitive complaint. On May 23, 1967 a fugitive from justice complaint was filed in the Northwest Phoenix Precinct Justice Court charging Kenneth Mack Hervey (defendant) with being a fugitive from T...
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Plaintiff-appellant, Robert E. Fonda, by his next friend, his father, sued the de *112 fendants-appellees, the City of Mesa and Russell Eugene Dorsett, and his employer, for negligence. His claim against the City of Mesa for alleged negligent installation of a stop sign and “stop line” was determined in favor of the City on a motion for summary judgment. Plaintiff appeals from that...
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This is an appeal by John Michael Esta-brook, a minor, through his guardian ad litem, plaintiff, and by the defendant Otis Elevator Company from the order of the trial court granting the motion of the defendant, J. C. Penney Company, for a new trial. We are called upon to determine: 1. Whether the order granting a new trial sets forth the reasons with sufficient particularity to satisfy the r...
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The defendant Roy Lee Spicer was convicted of the crime of illegal possession of narcotics and appeals. On the 17th day of November, 1966, the following-affidavit to procure a search warrant was filed before a magistrate: “I, Matt I. Bisenius, Being first duly sworn, on oath, depose and say, “That on November 9, 1966, an informant advised me that he had made several purchases of Marihuana f...
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The question in this appeal is whether, by proceeding under ORS ch 368 instead of chapter 281, a county can avoid liability for attorney fees when it loses a contest over just compensation for land taken for highway purposes. In 1967, the Board of Commissioners of Lane County appointed a board of viewers to locate a hew road and to assess the compensation to be paid landowners whose property wo...
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Defendant was charged by information with the murder of Los Angeles Police Officer David Seibert and with six prior felony convictions. 1 Motions for change of venue an,d for suppression of evidence were' denied. A jury found defendant guilty of first degree murder and fixed the penalty at death. Motions for new trial and reduction of sentence were denied. This appeal is automatic. (Pen. Code, ...
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Plaintiff appeals from a judgment of dismissal entered after a demurrer to its second amended complaint was sustained without leave to amend. Plaintiff alleged that it is a licensed specialty subcontractor. On November 24, 1965, it submitted by telephone to defendant C. V. Holder, Inc., a general contractor, a subcontract' bid in the amount of $83,400 for the furnishing and installation of acousti...
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Plaintiff was injured in an automobile accident on March 20, 1962, while riding as a guest in the car of Michael James Giesler, who was defendant’s insured. She filed an action alleging that Giesler was guilty of wilful misconduct and intoxication, and defendant filed an answer on Giesler’s behalf, asserting plaintiff’s contributory negligence and assumption of risk as defenses. Giesler failed ...
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This was an appeal to the circuit court of an order of the Appeals Board of the Department of Employment which denied plaintiff corporations the experience rating enjoyed by the enterprise prior to incorporation. The trial court reversed and the commissioner appeals. Prior to January 1, 1966, Mr. Andrew West was the sole proprietor of two business ventures. One was Andrew West doing buisness as We...
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Defendant appealed from a conviction of a violation of ORS 483.443(1), which prohibits the operation of a motorcycle without wearing protective headgear. Defendant’s sole ground of appeal is that such a statute is an improper exercise of the police power of the state in that the restraint of the statute upon his personal liberty bears no relation to a legitimate public purpose and, therefore, c...
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In July 1966, Mr. Gooding and Mr. Ricker defended one Chet Aschenbrenner in a foreclosure proceeding in the circuit court for Wallowa county. On October 3, 1966, the court filed an opinion ruling against Aschenbrenner. The court’s decision would have permitted a ruinous deficiency judgment against Aschenbrenner. On October 7, 1966, and before a decree was entered in the foreclosure case, Gooding a...
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Defendant was convicted, in a trial without a jury, as an accomplice to the first degree murder of her husband. The killing was committed by her 17-year-old paramour, James Mclntire. The state charged that defendant conspired with Mclntire to commit the murder. On appeal defendant claims that there is insufficient evidence to establish a conspiracy and that her motion for a judgment of acquittal ...
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This is a suit to enjoin defendants from using *43an easement. The .easement was created by deed in 1954 for the purpose of permitting ingress and egress to property now owned by defendants. Plaintiffs’ property is the servient estate. Plaintiffs’ claim title to the property by adverse possession. The trial court agreed. Defendants Mason appeal. There is no issue of law involved in the case. Decis...
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The trial court, after hearing the opening statements of counsel and examining two depositions which the parties stipulated should be received as evidence, dismissed the complaint with prejudice. Prom this decree, which on its face appears to bar all future litigation by persons represented by the plaintiff as well as by the plaintiff itself, the plaintiff appeals. The plaintiff is a cooperative a...
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This is an action brought against a State Police officer for the conversion of plaintiff’s automobile alleged to have occurred after plaintiff was arrested for intoxication on a public highway. The jury returned a verdict against defendant in the amount of $700 representing the value of the automobile and $250 punitive damages. Defendant appeals from the judgment entered on the verdict. Pl...
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Plaintiff holds an unpaid judgment for money against defendant. Defendant is a nonwithdrawn member of the Klamath Tribe of American Indians and is entitled to quarterly payments from the proceeds of the operation of a management trust of the assets of the tribe which was established by the United States government. Plaintiff brought this proceeding under ORS 28.720 ① to secure an order of court...
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76 Wn.2d 407 (1969) 456 P.2d 1011 TOM E. DAY et al., Respondents, v. INLAND EMPIRE OPTICAL, INC., et al., Appellants.[*] No. 39910. The Supreme Court of Washington, En Banc. July 17, 1969. MacGillivray, Jones, Clarke & Schiffner, by John D. MacGillivray, for appellants. Malott & Southwell and Thomas Malott, for respondents. Williams, Lanza, Kastner & Gibbs, Henry E. Kastner, Quackenbu...
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Respondent, Jesse Hernandez, brought this action against appellants, Western Farmers Association and Merlin D. Whittle and his wife, to recover for damages suffered to his hop crops as the result of alleged negligence on the part of appellants. Appellants cross-complained, alleging that respondent owed them approximately $3,100.93 for various materials furnished to respondent by the association...
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