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All Reporters → p2d → Volume 484

Opinions in p2d Volume 484

Appellant, Ralph Singleton Johnson, entered a plea of guilty to charges of child' molesting and lewd and lascivious acts. From the judgment of conviction and sentence he appeals. On February 17, 1969, appellant was charged by information and entered a plea of not guilty to three counts of child molesting ; four counts of lewd and lascivious acts; and two counts of sodomy. Shortly thereafter, a ...
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Defendant was charged with the following offenses: Count I assault with a deadly weapon on Brent Parker; Count II assault with a deadly weapon on Donna L. Parker; Count III kidnapping of Donna L. Parker and Brent Parker; Count IV rape of Donna L. Parker; and Count V assault with intent to murder Donna L. Parker. Defendant was tried by a jury and acquitted of Count IV but convicted of Counts I, II,...
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This; is an appeal from a judgment after a plea of guilty for the unlawful sale of marijuana (§ 36-1002.07 A.R.S.). We-are-called upon to determine: 1. whether the plea of guilty was knowingly, intelligently, and understándingly made; 2. whether the sentence was excessive and constituted cruel and unusual punishment, and 3. whether it was reversible error to refuse to grant defendant’s re...
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On this review of an Industrial Commission award we are asked to set aside the Commission’s findings that it lacked jurisdiction to consider the petitioner’s claim because of his failure to timely file an application for benefits. On February 26, 1968, the petitioner, Charles Richard Troska, filed with the Industrial Commission his “Workman’s Report of Injury and Application for Benefits” relating...
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Plaintiffs-appellants received a Sheriff’s Deed to property in Phoenix through foreclosure of a mortgage. Defendants’-appellees’ interest in this same property is in the form of a Treasurer’s Tax Deed procured when appellant failed to pay taxes on the property. The deed vests title in “L. Michaels or B. Michaels.” Publication of notice required by A.R.S. § 42-457 was accomplished through the “W...
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The petitioners, on June 23, 1970, filed suit in Pima County Superior Court for personal injuries sustained by Dr. Cohen when the vehicle he was driving on U.S. Highway 95 went off the road somewhere between San Luis and Yuma, Arizona. The complaint alleged that the plaintiffs were residents of Yuma County, Arizona, and that the defendants, Sahuaro Petroleum and Asphalt Company and Traffic Control...
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This review of an award of The Industrial Commission requires us to make a determination as to the material point in time for ascertaining relationships to a deceased workman for the purposes of awarding death benefits. Warren C. Coover, the deceased, was injured in an industrially-related accident on March 3, 1968, at which time he was a single man. On April 12, 1969, Mr. Coover married t...
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This appeal challenges the propriety of granting summary judgment in favor of appellee, defendant in a lawsuit instituted by appellants-plaintiffs, to recover for personal injuries sustained by Marvin Davis, in an automobile accident. Plaintiffs contend that factual issues were presented with respect to whether Vumore’s employee-was acting within the scope of his employment at the time of the a...
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This appeal primarily questions the propriety of the trial court’s granting the appellee’s summary judgment where there is alleged to be genuine issues as to material facts unsettled. Appellant raises three questions on appeal. They are as follows: 1. Should the summary judgment be set aside because there remained many genuine issues of material fact? 2. Did Interchange Resources...
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We granted our writ of certiorari to review the lawfulness of an award and findings of The Industrial Commission of Arizona denying the petitioner-widow and minor children death benefits requested pursuant to A.R.S. § 23-1041, subsec. A and § 23-1046, subsec. A. The petitioners’ decedent died on February 10, 1967 under circumstances characterized by the coroner as suicide. A.R.S. § 23-1021, subsec...
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This appeal is from a denial of a writ of habeas corpus. Petitioner was seeking to test the sufficiency of the evidence supporting a finding of probable cause and binding the petitioner over to superior court. Petitioner was free on bond at the time he sought the writ, and the sole question before the court in this appeal is whether a defendant in a criminal matter, who has been released on bond, ...
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The only issue on review of this award of The Industrial Commission is whether it is sustainable under the evidence presented. This is the second appellate review of this case. See Colasacco v. Industrial Commission, 8 Ariz.App. 230, 445 P.2d 178 (1968). The history and background of this case have been adequately covered in the prior opinion and need not be repeated here other than to mention tha...
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This case involves the question of whether a hernia suffered by the petitioner falls within the purview of Section 23-1043, subsec. 1 or Section 23-1043, subsec. 2 A.R.S.1956. On September 3, 1968, the petitioner slipped on some oil at his employer’s place of business causing his feet to go out from under him and occasioning pain in the area of his groin. On December 23, 1968, Dr. Patrick Phalen, ...
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*90 The opinion of the court was delivered by Defendant-appellant, Hahner-Forman-Cale, Inc., appeals from a judgment recovered by plaintiff, Newton Ballhorst, for personal injuries caused by the collapse of a haydite block wall being constructed by defendant. Plaintiff had been awarded workmen’s compensation. He brought this action for his benefit and for that of his employer, Whitesell Lumbe...
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The opinion of the court was delivered by This is a products liability case wherein the plaintiffs in the trial court won a verdict in the total sum of $118,401.54 for death and injuries caused by the operation of a 40-ton “Euclid” earth mover manufactured by General Motors Corporation. The issue tried in the lower court, material to the appeal, is whether General Motors was guilty of negligence ...
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Opinion Defendant appeals from a judgment convicting him of robbery in the first degree. He contends that the trial court committed prejudicial error in ruling admissible a written statement he made to another judge in the post-conviction proceedings of an earlier, related case; that the photographic identification procedure here used was unduly suggestive; and that the finding he was armed at ...
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Opinion We ordered these three cases transferred to this court on our own motion (rule 28(a), Cal. Rules of Court) so that we might consider whether the Courts of Appeal have the authority to waive the $50 fee required under Government Code section 68926 for filing the record on appeal in a civil case or a petition for a writ within their original jurisdiction. Upon a review of the appli...
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Opinion Defendant, Lawrence Earl Lavergne, was found guilty by a jury of two counts of first degree robbery of a men’s clothing store. (Pen. Code, § 211.) He was acquitted on two other counts involving robbery of a supermarket. He contends that the trial court improperly denied him the right to impeach the testimony of his accomplice in the clothing store robbery. 1 He also argues that the pr...
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Opinion When authorized by statute to remove from the highway and store a vehicle until the owner subsequently reclaims it, police officers routinely compile a complete inventory of the contents of the vehicle prior to storage, Petitioner, charged with possession of marijuana, seeks a writ of mandate to compel the respondent superior court to suppress evidence, seized when police inventoried the c...
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*688 Opinion Plaintiffs, recipients of Aid to Families With Dependent Children, and of Aid to the Blind (Welf. & Inst. Code, §§ 11200-11488; 42 U.S.C. § 601 et seq.; Welf. & Inst. Code, §§ 12500-12850), appeal from the judgment of the trial court, which sustained defendants’ general demurrer to their complaint without leave to amend on the ground that plaintiffs had not exhausted...
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delivered the opinion of the Court. This is an interlocutory appeal from an adverse ruling by the district court of Larimer County on Ware’s motion to suppress evidence. Ware was charged with the felony *421 offense of unlawful possession of a narcotic drug, cannabis sativa L. The charge arose out of the following events which took place at the Fort Collins Police Department on August 16, 1...
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Opinion by *395Vigil, hereinafter referred to as defendant, filed his motion in the trial court under Rule 35 (b) of the Colorado Rules of Criminal Procedure, seeking an order vacating judgment and sentence and discharging the defendant from illegal incarceration. As grounds for the motion, he alleged that he was sixteen years of age at the time of arraignment, was not represented by counsel, and ...
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Opinion by *395Vigil, hereinafter referred to as defendant, filed his motion in the trial court under Rule 35 (b) of the Colorado Rules of Criminal Procedure, seeking an order vacating judgment and sentence and discharging the defendant from illegal incarceration. As grounds for the motion, he alleged that he was sixteen years of age at the time of arraignment, was not represented by counsel, and ...
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delivered the opinion of the Court. The defendant (plaintiff in error) was charged with larceny of a watch from the person and conspiracy to commit such larceny. He was convicted of the larceny charge and acquitted of conspiracy. He has brought writ of error for review of the conviction. We affirm. The victim was head waiter at a Denver restaurant which closed on Sundays. On the particular Sunday ...
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delivered the opinion of the Court. The defendant (plaintiff in error) was charged with larceny of a watch from the person and conspiracy to commit such larceny. He was convicted of the larceny charge and acquitted of conspiracy. He has brought writ of error for review of the conviction. We affirm. The victim was head waiter at a Denver restaurant which closed on Sundays. On the particular Sunday ...
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delivered the opinion of the Court. Harold George Johnson, referred to as the defendant herein, brings this writ of error seeking a reversal of his convictions for assault with a deadly weapon and for kidnapping. Both charges arose out of related transactions, and concurrent sentences were imposed. The evidence which supported his conviction of both offenses is not disputed. The defendant’s v...
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delivered the opinion of the Court. On September 28, 1967, the District Attorney of Mesa County filed an Information charging the defendants, David Jerome Flesher and Peter John Gleichman, with unlawfully having in their possession a narcotic drug, cannabis, commonly known as marijuana, in violation of C.R.S. 1963, 48-5-2. On that same day, a search warrant was issued permitting the police to sear...
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delivered the opinion of the Court. On September 28, 1967, the District Attorney of Mesa County filed an Information charging the defendants, David Jerome Flesher and Peter John Gleichman, with unlawfully having in their possession a narcotic drug, cannabis, commonly known as marijuana, in violation of C.R.S. 1963, 48-5-2. On that same day, a search warrant was issued permitting the police to sear...
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484 P.2d 125 (1971) NATIONAL MOTORS, INC., and Western Surety Company, Plaintiffs in Error, v. Marvin E. NEWMAN and Carol A. Newman, Defendants in Error. No. 70-668. (Supreme Court No. 24180.) Colorado Court of Appeals, Div. II. April 20, 1971. Yegge, Hall & Evans, Robert S. Treece, William F. Dressel, Denver, for plaintiffs in error. *126 Ronald F. Flader, Denver, for defendants in error. Se...
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484 P.2d 131 (1971) INTER-STATE DETECTIVE BUREAU, INC., a Colorado corporation, Plaintiff in Error, v. The DENVER POST, INC., a Colorado corporation, Defendant in Error. No. 70-655. (Supreme Court No. 24053.) Colorado Court of Appeals, Div. I. March 23, 1971. Rehearing Denied April 13, 1971. *132 Litvak & Litvak, Alan Karsh, Denver, for plaintiff in error. Van Cise, Freeman, Tooley & McCl...
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484 P.2d 134 (1971) Robert M. MOORE, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. CITY OF BOULDER, Colorado, Robert W. Knecht, Dr. Richard E. Geesaman, Thomas D. Waugh, Charles A. Haertling, John C. Buechner, Dwayne C. Nuzum, Richard C. McLean, James M. Bowers, Howard C. Klemme, Defendants-Appellees, The Archdiocese of Denver, Intervenor-Appellee. No. 70-582. Colora...
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OPINION OP THE COURT BY The question in this case is whether Kaiser Hawaii-Kai Development Co. is liable for general excise tax under HRS c. 237 upon the payments made to it by the trustees of the Estate of Bernice P. Bishop, Deceased, pursuant to section F-8(c) of a land development agreement which it made with the latter on April 27, 1961.1 *624The payments involved here were made in 1966, 1967...
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OPINION OP THE COURT BY This appeal involves breach of an insurance contract and damages of $25,159.08 awarded assured-appellee, Lem-mon, Freeth, Haines & Jones, Architects, Ltd. (hereinafter *615“appellee”) against appellants, Underwriters at Lloyds of London, W. B. Brandt & Co., and Sayre & Toso, Inc. (hereinafter collectively referred to as “appellants”), in a jury-waived trial. For the purpos...
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OPINION OF THE COURT BY Plaintiff relator sought in the circuit court a writ of mandamus to have the defendants deliver to the persons *638whom it claims to be its proper officers the key to its office, its books and records, and other property belonging to it and which are in their possession. The court denied the requested writ upon a holding that plaintiff relator failed to prove the material a...
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The petition for rehearing is denied without argument....
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484 P.2d 147 (1971) Noboru MATSUMOTO and Claire Matsumoto, Plaintiffs-Appellees, v. Kenneth M. KAKU, Defendant-Appellant. No. 5002. Supreme Court of Hawaii. April 23, 1971. *148 Bert T. Kobayashi, Jr., Honolulu (Kobayashi, Toyofuku & Koshiba, Honolulu, of counsel), for defendant-appellant. Bert S. Tokairin, Honolulu, for plaintiffs-appellees. Before RICHARDSON, C.J., MARUMOTO, ABE and LEVINSO...
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Plaintiff Wayne Mason, who owns building lots in the southern portion of Tooele City, sues to recover $650 in charges which he paid the City under protest for sewer and water connection fees, and for an order requiring the defendant City to make additional connections for a lower rate which he contends is proper; and he also asks for $10,000 punitive damages. It is the plaintiff's contention that ...
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The plaintiffs commenced these proceedings in unlawful detainer in the court below seeking restitution of certain premises in Salt Lake County. After a trial upon the issues judgment was entered in favor of the plaintiffs and against the defendants, Roy J. Johnson and Janice L. Johnson, and in favor of the defendants, Percy Clark and Mrs. Percy Clark. The judgment was entered on July 1, 1970, and ...
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This is the second appeal in this matter. The facts were set out in our former opinion reported in 24 Utah 2d 277, 470 P.2d 261 (1970). In the former case the trial judge had granted a summary judgment in favor of the defendant upon the grounds that it could contest the policy because the insured had committed suicide. We there held that the period for contesting the contract on the basis of suici...
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Plaintiffs appeal from a summary judgment dismissing their claims for wages and services against a corporate surety, .the defendant, on the ground that they had not filed their action within the time required under the terms of the bond. *12On March. 6, 1961, J. H. Wardle Company entered into a subcontract with R. J. Daum Construction for certain construction work at Mercury, Nevada. In compliance...
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Appeal from a judgment dismissing a complaint alleging that defendant sheriffs 1) wilfully and wantonly failed to investigate a burglary of plaintiff’s store in Paradise, Utah, for which plaintiff claims compensatory and punitive damages, and 2) for removal of defendants from office. Affirmed, with costs to defendants. The dismissal was based on the allegations set forth in the complaint. No ev...
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The appellant herein held a note signed by the defendant corporation and secured by a chattel mortgage and also a mortgage on realty. The present action is to foreclose the mortgages and to recover the amount of the deficiency, if any there be, from the officers and directors of the corporation because of alleged negligent mismanagement of the corporate business. The question to be determined o...
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Plaintiffs commenced the initial phase of this case in March of 1969, when they filed an action against Richard Blake and Atlantic Richfield Company, alleging that Blake was the agent and operator of a. service station in Wendover, Utah, which was owned and leased by Atlantic. Plaintiffs then alleged that on three separate occasions, Blake, in the course of his employment, purchased merchandise...
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Plaintiff John Deere Company sued to recover as assignee of a note and security agreement by which the defendants Behl-ing had purchased farm machinery from the assignor Jensen Equipment Co. of *32 Cleveland, Utah. The defendants conceded the execution of the documents mentioned, hut attempted to assert as defenses a partial failure of delivery of the machinery and breach of warranties thereon....
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484 P.2d 173 (1971) 26 Utah 2d 35 UNIVERSAL INVESTMENT CORPORATION, Plaintiff and Appellant, v. Ronald L. KINGSBURY and Iiene Kingsbury, his wife, for herself and as Trustee, Defendants and Respondents. No. 12293. Supreme Court of Utah. April 19, 1971. Joseph J. Palmer of Worsley, Snow & Christensen, Salt Lake City, for plaintiff and appellant. E.L. Schoenhals, Salt Lake City, for defendants ...
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This is an original application for writ of habeas corpus asking that this court order that the care, custody, and control of the minor, Bradley Bach, be granted Richard and Eva Young, pending an appeal by the paternal grandparents, Clarence and Ada Bach, from the order of the trial court appointing the Youngs guardians of the person and estate of the said minor. We are called upon to determin...
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Appellant, Frank Lorenzo Lewis, appeals from his conviction of grand theft and the sentence imposed thereon. It is unnecessary to discuss the facts leading to appellant’s conviction in view of the fact that he has raised only one argument which concerns a legal point. Appellant charges that since all of the evidence against him was circumstantial, it was error for the trial court to fail to instru...
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This is an appeal from an order of the trial court denying the motion of the defendant, State Farm Fire and Casualty Company, for summary judgment and granting the motion of the plaintiffs, Robert and Martha Knapp, for summary judgment. We are called upon to determine whether the subrogation clause in the defendant insurance company’s medical pay provision is invalid as an attempted assignment ...
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This is a delayed appeal from two cases wherein the defendant pleaded guilty, was adjudged guilty and sentenced thereon. We are called upon to determine: 1. whether the court committed error in ordering the sentences to run consecutively instead of concurrently, 2. whether the defendant knowingly, intelligently, and voluntarily entered his plea of guilty as to the offenses and particularly ...
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This is an appeal from a judgment of guilt and imposition of sentence following defendant’s entry of a plea of guilty to second-degree murder. The facts of this case disclose that defendant was informed against on December 15, 1965, being charged with the May 31, 1964 murder of one Norma Alleen Rowe. After the jury had been empanelled and two prosecution witnesses, including defendant’s ac...
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The appellant seeks reversal of his conviction of unlawful possession of marijuana on the grounds that acceptance of his guilty plea on February 9, 1970, did not comport with the requirements laid down by the Supreme Court of the United States in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He contends that the Boykin deficiency consists of the fact that the court did not...
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The lawfulness of an award of The Industrial Commission of Arizona is before us for review. The award determined that the petitioner sustained no loss of earning capacity. The petitioner, Vernie H. Edwards, is the injured workman. At the age of 35 years, a man with little formal education, he was employed as a laborer in the Phoenix area and on 2 July 1963 he sustained an industrially related b...
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The question presented to the Court for ■determination is whether the award of The Industrial Commission for temporary disability only is reasonably supported by the evidence. This case involves an injury to the back, and as such, is one of those cases in which the Commission must rely upon the medical evidence available in reaching its determination. Enyart v. Industrial Commission, 10 Ariz.App. ...
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Appellant Welsh, an Internal Revenue Service (hereinafter referred to as IRS) Agent since 1959, expressed a desire in 1966 to obtain a Certified Public Accountant’s (hereinafter referred to as CPA) certificate. In a letter of March 18, 1966, to the Arizona State Board of Accountancy (hereinafter referred to as the Board), Welsh recounted his background as follows: 1) May, 1959, Bachelor of Scie...
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The petitioner questions the validity of the awards of the Commission issued in this case, which followed an award issued July 3, 1968, on which the names of the Commissioners were rubber-stamped. The petitioner alleges that this was an invalid award as there was nothing to indicate it was the action of the Commissioners. However, the file reveals that on July 2, 1968, the Commissioners considered...
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This appellate review is the result of denial by the Industrial Commission of Arizona of petitioner’s claim for compensation for injuries suffered as a result of *439an accident allegedly occurring while petitioner was working at El Zarape Tortilla Factory. The referee found that petitioner did not sustain her burden of proving that there was an accident and the Industrial Commission on appeal con...
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This is an appeal from the denial of appellants’ (defendants in the trial court) motions for judgment notwithstanding the verdict and for a new trial in regard to the count of assault and battery, and a cross-appeal from the denial of appellee’s (plaintiff in the trial court) motion for a new trial on the counts of false imprisonment, malicious prosecution, defamation and conversion. The partie...
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A superior court order denying the-State’s motion to dismiss an appeal from a. city court criminal conviction and dismissing the criminal complaint against the real party in interest is the subject of this special action instituted by the State. Since-we are of the opinion that the State’s position is correct, we assume jurisdiction. The pivotal question is whether the superior court lacked jurisd...
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Arthur William Stielow was tried and convicted in the Superior Court. He was adjudged guilty, sentenced to the Arizona State Prison, and this appeal was perfected. At the time of the filing of the complaint in the Justice Court the defendant was in federal custody in another state. During the period of his confinement in a federal penitentiary he prepared and forwarded demands for a speedy tria...
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This appeal is from conviction' of the appellant-defendant on six counts of forgery in a trial by jury. The parties will hereinafter be referred to as they appeared below. The trial court sentenced the defendant to not less than three years nor more than five years in the State penitentiary on each count and ordered the sentences to be served concurrently. The defendant has raised numerous questio...
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Appellees obtained two default judgments for money against appellant in justice court, Tucson Precinct No. 2, Pima County, Arizona, and subsequently filed transcripts thereof as provided in A.R.S. § 33-962. Several months later, the appellant filed a *452motion in superior court to vacate these judgments on the ground of excusable neglect. The motion was denied and this appeal followed. We do not ...
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Are Navajo Indians living and working within the confines of that portion of the Navajo Indian Reservation lying within the State of Arizona, subject to the Arizona State Individual Income Tax laws ? Plaintiff-appellant, Rosalind McClanahan, brought an action in Apache County, Arizona, on behalf of herself and all others similarly situated, 1 against the State Tax Commission of Arizona, seeki...
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This appeal relates to two of the requirements for the passage of an ordinance by the City of Phoenix, which ordinance changes the zoning of a parcel of land. The appellants will be referred to as the plaintiffs, they being the plaintiffs in the Superior Court. The appellees Scarla were defendants in the Superior Court and will be referred to as Scarla. The appellee Westcor, Inc., a corpor...
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This is an appeal by defendant James Martinez Garcia from a jury conviction of the crime of Grand Theft (auto) and from the judgment and sentence thereon of three to five years in the State Prison. Defendant in his brief assigns six areas wherein the court or the prosecutor has committed prejudicial error. We shall treat the one issue which we believe crucial and dispositive of this appeal, that i...
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The sole issue raised in this review of an Industrial Commission award is whether in establishing the petitioner’s post-injury earning capacity the Commission improperly failed to consider the petitioner’s work-connected travel expenses. Prior to his injuries, the petitioner lived in Mammoth, Arizona near the place of his mining employment. As a result of his injuries he was no longer physicall...
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This is an appeal pursuant to A.R.S. § 8-236 of the order of the Pima County Juvenile Court transferring a juvenile for prosecution and trial as an adult for arson and murder. On December 20, 1970, a tragic fire occurred at the Pioneer International Hotel in Tucson, Arizona. As a result of this fire 28 persons died either because of jumping from the windows to avoid the fire or from the fire itse...
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Appellant was hired by the governing board of Pima Junior College in early 1968 on the recommendation of Dr. Oliver Lane, the president of Pima Junior College at that time, for the fiscal year of 1968 through 1969, in the position of dean of administration of Pima Junior College. He was re-hired by the board for the fiscal year 1969 through 1970. The board also gave its tentative commitment for t...
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This appeal involves an award of The Industrial Commission of Arizona denying a Petition To Reopen. On 10 November 1961, petitioner, while employed by ASRCO, sustained an injury to his right shoulder. He filed a claim with the Commission which resulted in a Findings And Award For Temporary Disability entered 6 February 1962. On 24 June 1969, petitioner filed a Petition To Reopen indicating that he...
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484 P.2d 250 (1971) Joan M. FERRELL et al., Appellants, v. Opal V. BAXTER et al., Appellees. No. 1041. Supreme Court of Alaska. April 21, 1971. *252 Lloyd I. Hoppner, Fairbanks, for appellants. Charles J. Clasby, Fairbanks, for appellees Melvin S. Graves and Sea-Land, Inc. Before BONEY, C.J., and DIMOND, RABINOWITZ, and CONNOR, JJ. OPINION CONNOR, Justice. Among other things, this case presents ...
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delivered the Opinion of the Court. This is an original proceeding wherein the relators are seeking a writ directed to several issues, the writ sought being a combination of prohibition, review and supervisory control. The problem arises mainly because the same parties and essentially the same issues are in two separate district courts. Relators are husband and wife. The husband is a half brother ...
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MEMO OPINION This is a petition for a writ of habeas corpus filed by August R. Newman, Jr., an inmate of the Montana state prison. Prior to this petition and on or about the 4th day of June, 1970, petitioner appeared before the Honorable R. J. Nelson, with counsel, in response to a petition to revoke a previously imposed deferred sentence. Petitioner had been charged one year prior on June 16, 196...
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This is an appeal from a judgment of the district court, which declaratory judgment found for the plaintiffs and against the State of Montana. The plaintiffs are representative county officials, bringing the suit on their own behalf and on behalf of all other county officials and employees similarily situated. Plaintiffs brought the action in district court for a declaratory judgment to determine ...
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On March 30, 1969, the respondent received a personal injury arising out of and in the course of her employment with Bogus Basin Recreational Association. Miss Nelson was employed as a part-time ski instructor, giving lessons of two hours each for which she was paid at a rate per student which decreased as the number of students in her classes increased, resulting in an irregular hourly rate of pa...
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This is an action for personal injuries resulting from an automobile accident in which plaintiff’s car was “rear-ended” by defendant’s car. The trial court set aside a jury verdict for $1 in general damages and $350 in special damages and granted plaintiff’s motion for a new trial. Defendant appeals, contending that under the evidence this was a proper verdict and that this court should re-examine...
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This is an action in strict liability for personal injuries sustained by the driver of an automobile which was “rear-ended” by an automobile with defective brakes and which had been sold by defendant as a used car on the very morning of the day of the accident.① Defendant appeals from an order granting plaintiff’s motion for a new trial after entry of a judgment based upon a jury verdict for defen...
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The plaintiff suffered injuries when her car collided with a ear owned by the defendant but operated by a 15-year-old boy who was driving the car without the defendant’s permission. Plaintiff sought to impose liability upon the ground that the defendant made the car accessible to the boy whom the defendant should have known was apt to take the car without permission and to drive the car negligentl...
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This is an action on a policy of fire insurance. The trial court sustained a demurrer to the complaint and, when plaintiff failed to plead further, entered judgment for defendant. Plaintiff appeals. The only issue is whether the complaint adequately alleged that plaintiff had an insurable interest in the insured property on the date of the fire. The following facts were alleged in the complaint...
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specially concurring. I would expand upon the reasoning of the majority opinion to explain more fully the basis upon which a defendant may be convicted where he is *240prosecuted both for burglary and the crime which was committed after the entry. Where burglary is defined as a breaking and entering with the intent to commit a theft it seems apparent that the penalty for burglary is intended as an...
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This is an action by an injured workman, whose employer was covered by the Workmen’s Compensation Act, against an alleged third party tort feasor. Defendant is alleged to have inflicted personal injuries upon plaintiff by the negligent operation of its bus. Defendant was also covered by the Act and it interposed a plea in bar of joint supervision and control based upon OBS 656.154 of the Act. The...
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The plaintiff, Clarence W. Fry, sole beneficiary under a will of Clarence P. Edwards, deceased, petitioned the circuit court to admit to probate a conformed copy of the will, the original of which had disappeared. The circuit court refused to admit the conformed copy of the will to probate and plaintiff appeals. Clarence P. Edwards, a retired rancher who lived in Condon, Oregon, died in a nursing ...
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State v. Gann, 254 Or 549, 463 P2d 570 (1969)....
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OPINION This is an appeal of an order entered by the District Court of Los Alamos County, New Mexico. After hearing on an order to show cause, the defendant Pacheco was found in contempt of court for failure to pay child support. Judgment was entered against Pacheco for $16,000 for arrearage of child support. The sentence on contempt was held in abeyance for a period of thirty days to all...
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OPINION Appellant was found guilty of murder in the first degree and was sentenced to life imprisonment. He appealed and the judgment was affirmed. State v. Ramirez, 79 N.M. 475, 444 P.2d 986. Subsequently, on November 7, 1969, he filed a motion for post-conviction relief pursuant to Rule 93 [§ 21-1-1(93) N.M.S.A. 1953] which was denied. Thereafter, on July 16, 1970, a second motion for relief was...
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OPINION Defendant was convicted of robbery, kidnapping, and an attempt to commit murder. He was sentenced for each offense, and he appealed. We reverse the judgment of conviction and sentence for kidnapping, but otherwise affirm. Defendant first claims he was deprived of his constitutional right to a speedy trial. This right is guaranteed by both the United States Constitution and th...
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OPINION Plaintiff appeals from a final decree in favor of defendants. Defendants were adjudged to have a fifteen foot ditch easement across plaintiff’s property, and plaintiff was permanently enjoined from interfering with defendants in the removal of the present lining of the ditch, in enlarging and relining the ditch within the said fifteen foot easement, and in keeping the ditch clear and cl...
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OPINION Defendants appeal from the reversal of their administrative action denying approval of transfer of ownership and location of plaintiff Rigales’ liquor license to Safeway Stores, Inc. The Alcoholic Beverages - Act, §§ 46-1-1 to 46-12-13, N.M.S.A.- (1953 Comp.), establishes certain prerequisites to the granting of a liquor license application or for its transfer to another location; These re...
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OPINION Defendant pled guilty to an attempt to* commit aggravated battery. Subsequently, he moved for post-conviction relief. Section 21-1-1(93), N.M.S.A.1953 (Repl.VoL 4). After an evidentiary hearing, the motion was denied. • Defendant’s appeal asserts error in denying his motion because: (1) defendant’s actions did not constitute an attempt to commit aggravated battery and (2) the State fail...
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OPINION Defendant pleaded guilty to the charge of burglary. Judgment and Sentence was entered on September 14, 1970 which stated that defendant was sentenced to “ * * * serve a term of not less than one (1) year nor more than five (5) years.” It further ordered that the sentence imposed was “ * * * suspended conditioned upon the Defendant serving six (6) months in the Dona Ana County Jail.” On ...
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OPINION This is an appeal by Torres from an adverse judgment in a workmen’s compensation case. The appeal is primarily based on alleged errors in the trial court’s findings of fact and its failure to adopt Torres’ requested findings of fact. We affirm. Torres states : The issue is : Was plaintiff disabled to any extent after seven weeks of compensation having been paid to him ? We have reviewed th...
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OPINION Defendant appeals his conviction of unlawfully possessing LSD. Section 54-5-18, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp. 1969). The trial court submitted the issue of entrapment to the jury. Defendant claims this was error, asserting he was entrapped as a matter of law. Concerning the defense of entrapment, State v. Roybal, 65 N.M. 342, 337 P.2d 406 (1959) states: " * * * it is not p...
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OPINION Defendant was convicted of armed robbery (§ 40A-16-2, N.M.S.A. 1953 (Repl. Vol. 1964)). His sole point on appeal is: “Accused was Denied His Constitutional Rights- Under the Sixth Amendment of the United States Constitution, as Made Applicable to the States by the Fourteenth Amendment to the United States Constitution, when the Prosecuting Witness Made a Court Room Identification of t...
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OPINION Defendant’s motion for post-conviction relief under Rule 93 [§ 21-1-1(93), N.M. S.A. 1953, (Repl.Vol. 4, 1970)] was denied after a hearing on the motion. Defendant asserts the trial court erred in finding that at the original trial he (1) was adequately advised of his rights, (2) was adequately represented by counsel, (3) knowingly and intelligently waived his right to counsel, and (4) vol...
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OPINION The plaintiff, Williamson, a journeyman plumber, was employed in laying a sewer line along the bottom of a trench which had been cut to and partially through a street in the City of Albuquerque. The particular work was being performed in connection with a construction project of Warren Properties. It appears that defendant, E. J. Smith, a master plumber, was employed by Warren Pro...
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OPINION Cruz pleaded guilty to two counts of an indictment charging him with burglary and larceny. He was sentenced for a period of not less than one nor more than five years on each count, and the sentences were to run concurrently from May 15, 1969. Cruz filed a motion to vacate the sentences under § 21-1-1(93) N.M.S.A.1953. A hearing was granted and the motion denied. The trial court found...
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OPINION Defendant was convicted and sentenced for the unlawful possession of marijuana under § 54-7-13, N.M.S.A.1953 (Rpl. Vol. 8, Pt. 2). This Act is known as the Uniform Narcotics Drug Act. Defendant has appealed challenging the constitutionality of the Uniform Narcotics Drug Act. We do not consider the constitutional question raised..because, in our opinion, the trial court proceeded without ju...
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OPINION Lunn was convicted of murder in the second degree, § 40A-2-1, N.M.S.A.1953(Repl.Vol. 6), and of an attempt to commit murder in the second degree, § 40A-28-1, N.M.S.A.1953 (Repl.Vol. 6). We reverse the convictions because hearsay testimony was admitted which deprived the defendant of his constitutional right to confront the witnesses against him. Sixth Amendment to the U. S. Constitution...
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OPINION Convicted of the theft of automobile tires from an automobile, Sec. 64 — 9-4, N.M. S.A.1953 (Rpl. Vol. 9, pt. 2), defendant, Anaya, has appealed. Anaya’s contention is that the tires were obtained through an unreasonable search and seizure in violation of constitutional guarantees and their admission in evidence was prejudicial error. We affirm the judgment and conviction. The undispu...
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OPINION Defendant was convicted in Magistrate Court of the crime of injury to animals. Section 40A-18-2, N.M.S.A. 1953 (Repl. Vol. 1964). The conviction was appealed de novo to the District Court and affirmed. Defendant’s appeal presents four points for reversal. The issue of jurisdiction is dis-positive of the appeal. We reverse. Magistrate Court Jurisdiction. The jurisdic...
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Defendant corporation prosecutes this appeal from a judgment ordering it to deliver to plaintiffs certain certificates of stock standing in the name of defendant. The underlying facts are described in Hall v. American Friends Serv. Comm., 74 Wn.2d 467, 445 P.2d 616 (1968), the first appeal involving this cause of action. In that decision we described the facts, in part, as follows, at page 468: Th...
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Plaintiff bought a new Pontiac station wagon automobile but claimed that it had so many things wrong with it he felt justified in rescinding the deal. When he tried to return the car and get a refund, the dealer refused, saying not only that the sale carried no warranty of quality but that plaintiff had in writing waived all warranties of fitness, express or implied, and had acknowledged that he w...
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79 Wn.2d 202 (1971) 484 P.2d 387 KING COUNTY REPUBLICAN CENTRAL COMMITTEE, Respondent, v. REPUBLICAN STATE COMMITTEE et al., Appellants. No. 41569. The Supreme Court of Washington, En Banc. April 22, 1971. Edward N. Lange, for appellants. Russell A. Austin, Jr., for respondent King County Republican Central Committee. James S. Munn, for respondents Green and Davies. HAMILTON, C.J. This appeal is ...
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79 Wn.2d 237 (1971) 484 P.2d 393 THE STATE OF WASHINGTON, on the Relation of John J. O'Connell, Petitioner, v. PUBLIC UTILITY DISTRICT NO. 1 OF KLICKITAT COUNTY et al., Respondents. No. 41592. The Supreme Court of Washington, En Banc. April 29, 1971. WRIGHT, J. This is an action for a declaratory judgment brought by the then attorney general to enforce the provisions of the Washington Constitutio...
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In response to an advertisement for bids, published by the Municipality of Metropolitan Seattle, called Metro herein, Dravo Corporation submitted the low bid for the construction of the Enatai interceptor, a sewer pipeline near the East Channel Bridge on the edge of Lake Washington in the city of Bellevue. According to the con *215 tract documents, the sewer was to be laid on hardpan where such...
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On July 7, 1967, the plaintiff, Robert Baker, went to the Jackson Municipal Golf Course to play golf. The golf course is owned by the City of Seattle. Plaintiff signed a printed form denominated a “Golf Cart Rental Agreement” and took possession of an electric golf cart manufactured by the Ford Motor Company. The cart was owned and leased by the defendants Billingsley who do *199 b...
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This action was brought by plaintiff, Kingston Village Corporation, against defendant, King County, to quiet title to a 15-foot strip of land. From a judgment entered upon findings of the trial court awarding a portion of the strip to defendant, plaintiff appeals. Although there are a total of 44 assignments of error, the only issue in the case is a factual one as to whether or not respondent had ...
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This case involves the obligation of a father to furnish support to an adult son as long as he attends college as a full-time student. The rights and obligations in question arise from a property settlement agreement incorporated into a divorce decree. That portion of the settlement agreement which is disputed reads as follows: The plaintiff [husband] agrees to pay to the defendant [wife], as T...
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In this action the plaintiff seeks to recover *568 damages for the personal injuries he sustained while employed by the defendant as a furniture salesman. The jury returned a verdict in favor of the plaintiff for $6,000. The trial court granted defendant’s motion for a judgment notwithstanding the verdict of the jury. The defendant concedes that the sole ground upon which this motion could have...
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4 Wn. App. 856 (1971) 484 P.2d 415 THE STATE OF WASHINGTON, Respondent, v. FRANK JAMES WASHINGTON, Appellant. No. 112-41243-3. The Court of Appeals of Washington, Division Three. April 26, 1971. Jack E. Tanner, for appellant. C.J. Rabideau, Prosecuting Attorney, for respondent. EVANS, J. Defendant Washington was charged with the crimes of robbery, first-degree assault and grand larceny. By separa...
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Defendant Washington was charged with the crimes of robbery, first-degree assault and grand larceny. By separate information, Lonnie Ray Searcy was charged with the same offenses and the two cases were consolidated for trial by jury. Both were convicted of the offenses charged and appeal separately. See State v. Searcy, 4 Wn. *857App. 860, 484 P.2d 417 (1971). The primary issue on the appeal of de...
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Defendant Searcy, who was tried jointly with Frank James Washington, appeals separately from a conviction of robbery, first-degree assault and larceny. The facts concerning the offenses charged are set forth in State v. Washington, 4 Wn. App. 856, 484 P.2d 415 (1971), and need not be set forth herein. The prime issue on this appeal is whether the in-court identification of defendant Searcy wa...
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This is an appeal from a judgment of the superior court voiding the action of the Spokane Plan Commission and the Spokane City Council granting a rezoning classification from Rl, 1-family residence, to R3-L, multifamily residence limited. The trial court found: (1) the change constituted spot zoning, and (2) the ordinance adopting the change failed to establish proper guidelines for review of the...
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The defendant, Food, Chemical & Research Laboratories, Inc. (Food Chemical), a consulting chemical laboratory, uses highly caustic acids of varying degrees of strength in its normal day-to-day activities. Food Chemical was required to move to a new location. It acquired a leasehold interest in a new building and, among other things, desired to obtain a type of flooring which would meet its needs. ...
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Claudell Edwards and Jimmy Otis Lane were charged with two counts of robbery and one count of rape and convicted on each of the three counts. Both defendants appeal their convictions. They had been previously charged with robbery, assault, and rape but .that jury was unable to agree upon a verdict. Lane and Edwards challenge the court’s failure to give the jury certain instructions relatin...
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This appeal poses a single question which may be stated as follows: In a tort action for personal injuries to both the husband and the wife, after it has been unequivocally demonstrated that the husband is incompetent and no guardian ad litem has been appointed for him, is it necessary to dismiss the husband’s cause of action upon defendant’s motion therefor? Our answer to this question is in the...
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Respondent, John Grace, was injured when the car in which he was riding as a guest and which was being driven by appellant, James Hill, struck the last of a line of automobiles which had halted on Interstate Highway 5 near the Nisqually Bridge in Pierce County. Respondent’s action for the injury was dismissed at the conclusion of his case because the trial court believed that there was insufficien...
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This is a will contest between the sole heir at law and the sole beneficiary under the purported will of Mary T. Hastings. The basis of the action was that the will was properly executed in September, 1940 but the first *650 page thereof, containing all the dispositive provisions, was typed on paper not manufactured until 1966. Mary Hastings died in July, 1967 at the age of 69...
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The appellant, Jacqueline’s Washington, Inc., brought this action for smoke damage to its stock-in-trade, high-fashion women’s wearing apparel, allegedly resulting from a fire which had been caused by respondents’ negligence. The trial court, acting as trier of fact, found that the fire which had caused the smoke damage was due to the negligence of the respondents. However, the case was dismissed ...
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This was an “alienation of affection” action brought by the plaintiff, Dorothy Roach, against Madeline (McLeod) Roach, the new wife of her former husband (Wightman. Roach). The case was tried to the court, sitting without a jury. From a judgment of dismissal, plaintiff appeals. The plaintiff and Wightman Roach met while he was serving in the United States Air Force in England. In 1946 the parties'...
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Defendant, William Eugene Guffin, appeals from a conviction for having sold a television set knowing it to be stolen property. The issue determinative of this appeal is whether the court, in the following colloquy between itself and the foreman after the case had been submitted to the jury, committed reversible error by commenting upon certain evidence: The Court: You had an inquiry to make of the...
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This is a defamation action. The jury awarded $8,750 each to plaintiffs, Frank Romano and John B. Mc-Mackin against defendant, United Buckingham Freight Lines. A motion for new trial or judgment n.o.v. was denied; judgment was entered on the verdict. Defendant appeals. Plaintiffs had been truck drivers for defendant and its predecessor, United Truck Lines, for 15 years. They worked as a sl...
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The defendant, Richard M. Klein, was brought into the state of Washington from his home in Montana under an extradition warrant served upon him in *737 the latter state. The warrant charged him with violation of Washington’s criminal nonsupport statute (RCW 26.20.030(1) (b)). He stood trial and was convicted of that crime in the Cowlitz County Superior Court. As part of the conditions of probat...
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This case presents one primary issue: When a writ of execution is issued upon a judgment under RCW 6.04.010, must all steps in the execution process through confirmation of sale be completed within 8 years from the rendition of the judgment? The trial court said “yes.” We agree. Defendant, Fogle’s Garage, Inc., obtained a judgment in Stevens County against one Kenneth Weeks and w...
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The case comes before us on appeal from the denial to a surviving spouse of an award in lieu of homestead. The deceased, Olga E. Buhakka, and her surviving spouse, Henry Buhakka, were married late in life, and they accumulated essentially no community property *602 during the course of the marriage. The deceased had, however, inherited approximately $14,800 in property from her first husband, a...
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This is a suit on an oral employment contract. The parties disagree over the compensation due to the plaintiff. It is undisputed that for 5% months the plaintiff, Forrest Archer, worked as a carpenter for the defendant building contractor, E. C. Willoughby. During this time plaintiff, it is agreed, received $100 per week for his services. The dispute centers around whether or not in addition to th...
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Even though she does not remember August 25, 1967, 1 Carol Stevens, on that day, was involved in three separate automobile-truck collisions occurring successively within moments of each other. It all happened on a bright sunny morning at about 8 a.m. on state Highway 18 as it approaches the westerly outskirts of the city of Auburn. Carol Stevens entered the eastbound lane of Highway 18 from the...
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On the evening of November 6, 1969, David Nelson, the attendant, and Michael Masella, his friend, were in the process of closing Harold’s Service Station in Tacoma. As Masella was removing his car from the garage and parking it, two young men entered the station office and forced Nelson to empty the cash register. Masella reentered to find the robbery in progress. Nelson was then forced to open a...
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Joseph Eberle died testate in 1964, leaving a large estate in Clallam County, the principal asset of which is a dairy farm. He left surviving him as his heirs a wife, Anna Eberle, and five adult children, namely, three daughters, Mary Nelson, Margaret Lotzgesell, and Clara Carr, and two sons, Edwin Eberle and Frank Eberle. His will named Frank Eberle and Margaret Lotzgesell as co-executors, who...
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This case presents a conflict between the strong public policies favoring free use of land and legitimate private land use control. Cape George Colony is a real estate development on the shores of Puget Sound in Jefferson County. The plat of Cape George Colony contains cer *664 tain restrictive covenants. Among these are two that are crucial to this dispute: All purchasers or owners of real p...
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This action was brought for the purpose of recovering money for damages alleged to have been sustained in a real estate transaction. The trial was to the court without a jury and resulted in findings of fact from which the court concluded that plaintiffs (Andersens) were entitled to recover $10,700 from defendants Northwest Bonded Escrows, Inc. (Northwest) and its manager, Richard B. Wall (Mr. ...
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This is an appeal from a summary judgment dismissing an action to recover judgment on a creditor’s claim rejected by the respondent as administrator de bonis non of the estate of John Stanley Koski, deceased. Plaintiff creditor appeals. The facts are not disputed. On December 10, 1964, Joel A. C. Rindal was appointed administrator cum testamento annexo of a purported last will and testament execut...
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The defendant appeals from the judgment and sentence entered on his plea of guilty to the charge of grand larceny. His court-appointed attorney has filed a motion to withdraw as counsel and an Anders brief in accordance with Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). The state has moved to dismiss the appeal as frivolous. One of the requirements in Anders is that ...
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Petitioner has filed an application for a writ of habeas corpus. The writ is solely concerned with his conviction for unlawful possession of marijuana in violation of RCW 69.33, the Uniform Narcotic Drug Act. In State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970), it was held that RCW 69.33 became inapplicable to criminal offenses involving marijuana, whether the proceeding was at the prosecution sta...
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In the trial proceedings below the respondent judge entered an order granting a decree of divorce to William James Cochran, who appears as plaintiff or relator herein, and Bonnie Doris Cochran, and awarded custody of their two minor children to the father, subject to visitation rights. Mrs. Cochran has appealed to this court in a separate case that part of the divorce judgment which awards custod...
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This is an original action involving competing annexation elections wherein one school district votes to annex itself to a. second school district, with the second school district voting to annex itself to a third school district. On November 24, 1970, the Board of Independent School District No. 3 of Creek County (Mannford) adopted a resolution to annex itself to Dependent School District No. 5. ...
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Under authority of 82 O.S.1961 § 861 et seq., Grand River Dam Authority, a state agency, has applied to this Court for declaratory judgment determining validity, and action to be taken, under contract executed between petitioner and the City of Wagoner, and upon which depends validity of a contract between petitioner and R. S. Goodman Company of Oklahoma, Inc. Petitioner seeks further relief ag...
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This is an appeal from an action in damages for personal injury from the District Court of Creek County by the plaintiff in error, plaintiff below, from an order sustaining a demurrer by the trial court at the conclusion of plaintiff’s evidence. Reversed. Plaintiff filed her petition alleging defendant was negligent in parking her automobile on her driveway on a slope without blocking the wheels, ...
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The parties to this action are four children who took, as co-tenants, equal one-fourth undivided interests in lands owned by their father when he died many years ago. The lands in question here embrace a continuous tract within Section 15, Township 17 North, Range 4 East (of the Indian Meridian), Payne County, Oklahoma, comprising more particularly the following portions: The Southeast Quarter ...
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Plaintiff in error, plaintiff below, brings this appeal from a judgment of the district court in an action wherein plaintiff sought to establish that a manufacturers’ and contractors’ liability insurance policy issued by defendant Mid-Continent Casualty Company included within its coverage a certain automobile accident, or, in the alternative, to reform the policy to provide coverage of the acc...
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This is an appeal by the City of Oklahoma City (plaintiff below) from an adverse judgment rendered in favor of W. H. Lockert and Irene M. Lockert (defendants) whereby the trial court denied the City’s application to amend its petition and the commissioners’ report in an eminent domain proceeding, and further sustained the above defendants’ motion for summary judgment by rendering judgment for t...
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This appeal involves a materialmens lien foreclosure case tried without a jury. It was held that defendant CAP Interiors had a valid lien upon the carpet and carpet pads in the six homes foreclosed; that the defendant Norman Lumber Company had a valid lien upon materials furnished; and that plaintiff in error, United Benefit Life Insurance Co.’s mortgage was inferior to said liens. Judgment affir...
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484 P.2d 532 (1971) Naomi June PRICE, Plaintiff in Error, v. L. Keith PRICE, Oklahoma Tank Lines, Inc., a corporation, Defendants in Error. No. 44204. Supreme Court of Oklahoma. April 20, 1971. Miskovsky, Sullivan, Embry & Miskovsky, Oklahoma City, for plaintiff in error. Miller, Wilson, Adams & Spencer, Oklahoma City, for defendants in error. *533 BLACKBIRD, Justice: This appeal involves...
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Roy D. Chatman, hereinafter referred to as defendant, was convicted in the District Court of Oklahoma County on July 15, 1967, and received a five year sentence, three years to be served in the state penitentiary, and the last two years suspended. The Defendant plead guilty on February 17, 1970, to automobile theft and received a two year sentence, which he is presently serving. The defendant has...
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Leon Daniel West, hereinafter referred to as “defendant,” was charged, tried and convicted in the District Court of Oklahoma County of the offense of Burglary in the Second Degree After Former Conviction of a Felony; his punishment was fixed at ten (10) years imprisonment, and from said Judgment and Sentence a timely appeal has been perfected to this Court. Briefly stated the evidence at the tr...
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Gayland Dean Taua, hereinafter referred to as “defendant,” was charged, tried and convicted in the District Court of Tulsa County of the offense of First Degree Burglary After Former Conviction of a Felony, his punishment fixed at a term of ten to thirty years and from said Judgment and Sentence a timely appeal has been perfected to this Court. Briefly stated the evidence at the trial revealed tha...
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MEMORANDUM OPINION Plaintiff in error, Reford Wayne Davi-son, hereinafter referred to as defendant, was convicted by jury verdict of Robbery in the First Degree, After Former Conviction of a Felony, and sentenced to Twenty (20) Years imprisonment in the District Court of Oklahoma County Case No. CRF-69-1436. Judgment and sentence in accordance with the jury verdict was imposed on September 19, 196...
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CONSOLIDATED OPINION Plaintiff in Error, Juliett Webb, hereinafter referred to as defendant, was tried and convicted in two cases in the District Court of Oklahoma County; and in each case she was sentenced to serve four (4) years in the State Penitentiary and pay a Three Hundred Dollar ($300.00) fine. In case No. 35586, defendant was convicted for the offense of Possession of Marihuana; and in ca...
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Jerry Wayne Loggin, a/k/a Jerry Wayne Smith, hereinafter referred to as “defendant,” was charged, tried and convicted in the District Court of Oklahoma County of the crime of Robbery With Firearms; the Information alleging that he was acting together and in concert with Wayne Fortune, his punishment was fixed at five (5) years imprisonment and from said Judgment and Sentence, a timely appeal has b...
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OPINION Plaintiff in Error, Robert A. Swarer, hereinafter referred to as Defendant, was charged with co-defendant, Robert A. Thomas, on January IS, 1968, with the crime of Conjoint Burglary, In The Second Degree, After Former Conviction of a Felony, in case No. 23124. On the 23rd day of January, 1968, after a preliminary examination on January 23, 1968, Defendant was bound over to stand trial in t...
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' Plaintiff in error, Frank Still, hereinafter referred to as defendant, was convicted by a jury verdict in the District Court of Adair County, Case No. 2155, of Lewd Molestation of a Child Under Age 14, with punishment fixed at five years imprisonment. Judgment and sentence was imposed on December 11, 1968, and this appeal perfected therefrom. The conviction concerns the event on April 4,...
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ORDER This Court’s decision in case No. A-15,-806 pertaining to the above named plaintiff in error, was rendered on March 28, 1971, Okl.Cr., 484 P.2d 548, affirming the judgment and sentence and the subsequent revocation of the' suspended sentence of a conviction in District Court of Tulsa County, Oklahoma, case No. 23,124. That decision applies to plaintiff in error’s appeal from a plea of guilty...
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Norma Ruth Pelts Ayers, hereinafter re-ferrred to as “defendant,” plead guilty in the District Court of Oklahoma County to the offense of Grand Larceny; her punishment was fixed at five (5) years imprisonment and from said Judgment and Sentence a timely writ of certiorari has been filed in this Court. The defendant was charged jointly with her husband and during the course of a jury trial the d...
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Donald Earl Brumley, hereinafter referred to as “defendant,” was charged, tried and convicted in the District Court of Oklahoma County for the offense of Burglary in the Second Degree, After Former Conviction of a Felony; his punishment fixed at thirteen (13) years imprisonment, and from said Judgment and Sentence a timely appeal has been perfected to this Court. Briefly stated the evidence at ...
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Fred Peterson, hereinafter referred to as “defendant,” entered a plea of guilty in the District Court of Oklahoma County to the offense of Unauthorized Use Of A Motor Vehicle and received a five (5) year suspended sentence on July 20, 1966. The said suspended sentence was ordered revoked on July 15, 1969, and from said order of revocation an application for post conviction relief has been perfecte...
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Herbert Claud Fields, hereinafter referred to as “defendant,” entered a plea of guilty in the District Court of Oklahoma County and received a five (5) year suspended sentence on June 11, 1970. The said suspended sentence was ordered revoked on October 2, 1970, and from said order of revocation a timely appeal has been perfected to this Court. The sole matter before this Court concerns whether the...
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Bailey F. Gallahar, hereinafter referred to as “defendant,” was charged, tried and convicted in the District Court of Tulsa County of the offense of Driving While Intoxicated; his punishment was fixed at ten (10) days in the county jail and a fine of One Hundred ($100) Dollars, and from said Judgment and Sentence a timely appeal was perfected to this Court. The parties stipulated to the statement ...
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Edward Lee Joyner, hereinafter referred to as “defendant,” was charged, tried and convicted in the District Court of Comanche County of the offense of Murder, his punishment was fixed at life imprisonment and from said Judgment and Sentence, a timely appeal has been perfected to this Court. Because of the propositions raised by the defendant it is not necessary to recite a detailed statement of...
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*180 OPINION By the Court, Shepp was indicted in three counts for the crimes of burglary committed on May 30, 1969 (Count 1); burglary committed on May 28, 1969 (Count 2); and receiving stolen property committed on May 30, 1969 (Count 3). He was convicted by a jury on all three counts, but the court granted his motion for *181 a new trial on the charge of receiving stolen property. He was...
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OPINION By this action Kenneth W. Corbin seeks to recover $20,000 on a winning bet of $100 at 200-to-l odds that the Boston Red Sox would win the American Baseball League pennant in 1967. Corbin placed the bet at the Jockey Turf Club in March 1967. When he attempted to collect on the bet in the fall of 1967 the club’s proprietors rebuffed his attempts on the basis that the bet had been taken by...
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OPINION By the Court, This appeal is from a summary judgment for Hughes Tool Company and against Betty Wiggins as an individual and as guardian of her two children, Joni Jean Wiggins and Mark Albert Wiggins. Betty commenced this action in the district court to recover damages for the alleged wrongful death of her husband, Rommie Gene Wiggins, who was killed while flying as a passenger in an...
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*196 OPINION By the Court, The appellate question concerns the appropriate period of limitations in an action for damages that arose under the following circumstances. Hartford, as subrogee of the Wiedenbecks, alleged in two counts that the defendants, Statewide Appliances, Inc., and Joseph Lee Burchett, breached express and implied warranties that a water heater had been co...
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OPINION By the Court, Betty Heitman was killed by a bank robber while she was on duty as a teller for the Bank of Las Vegas. The Bank had accepted the provisions of the Nevada Industrial Insurance Act, and Betty had not rejected coverage. Consequently, the Nevada Industrial Commission paid all death benefits due under NRS 616.615. lack Heitman, the surviving husband and sole heir of Betty, commenc...
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*205 OPINION By the Court, In Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966), this court applied the doctrine of strict liability to the field of foodstuffs and bottled beverages. In Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970), the doctrine was applied to the design and manufacture of all types of products, in that case a revolving door. T...
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Opinion Petitioner Edward Camara, in an original proceeding before this court, seeks a writ of mandate to compel respondent Angele Mellon, City Clerk of the City of Santa Cruz, to file his nomination papers and place his name on the ballot as a candidate for the Santa Cruz City Council in the election to take place on April 13, 1971. Petitioner has been a state resident since September 1962, an...
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Opinion In this proceeding to determine the constitutionality of durational residency requirements imposed by the Butte County Charter for candidates for the county board of supervisors, plaintiffs (hereafter referred to for convenience as petitioners) appealed from a judgment of the trial court upholding the constitutionality of the charter provision and denying the relief requested. After d...
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4 Cal.3d 747 (1971) 484 P.2d 583 94 Cal. Rptr. 607 THE PEOPLE, Plaintiff and Respondent, v. ALLAN FEIN, Defendant and Appellant. Docket No. Crim. 15213. Supreme Court of California. In Bank. May 5, 1971. *750 COUNSEL Harvey A. Schneider, under appointment by the Supreme Court, for Defendant and Appellant. Thomas C. Lynch and Evelle J. Younger, Attorneys General, William E. James, Assistant Attorn...
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Opinion Defendant, having waived trial by jury, was convicted of possession of marijuana (Health & Saf. Code, § 11530), and possession of restricted dangerous drugs (Health & Saf. Code, § 11910). Prior to trial defendant moved pursuant to Penal Code section 1538.5 to suppress certain evidence found subsequent to his arrest, which motion was denied. Defendant now appeals from the judgment of convi...
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Opinion (1) The principal issue considered in this opinion is when the specific intent to rob must be formed in relation to the seizing of the victim in order to constitute a violation of Penal Code section 209 (kidnaping for the purpose of robbery) in those offenses which took place after the 1951 amendment to said code section. We have concluded that the intention to commit robbery must be pr...
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Opinion In this case we are called upon to determine under what circumstances a minor is entitled to a free transcript for use on appeal from an order of the juvenile court finding him to be a person coming within the provisions of Welfare and Institutions Code section 602. 1 We have con- *838 eluded that under Welfare and Institutions Code section 800, petitioner ...
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Opinion Plaintiff appeals from a judgment rendered on a verdict in his favor in the amount of $6,100 in an action for personal injuries against defendants. We consider under what circumstances a defendant in a tort action may introduce evidence of plaintiff’s receipt of collateral source *727 benefits for the purpose of establishing that plaintiff had a motive for feigning in...
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Opinion Section 11546 of the Business and Professions Code authorizes the governing body of a city or county to require that a subdivider must, as a condition to the approval of a subdivision map, dedicate land or pay fees in lieu thereof for park or recreational purposes. In this class action for declaratory and injunctive relief, Associated Home Builders of the Greater East Bay, Incorpo...
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This is a special action, filed by the State of Arizona ex rel Moise Berger, Maricopa County Attorney, on December 10, 1970, seeking relief from a ruling by a Superior Court judge requiring that the State prove criminal intent as a pre-requisite to a conviction for violation of this state’s Air Pollution Act, A.R.S. §§ 36-771 to 36-790. On December 15, 1970, we accepted jurisdiction of the stat...
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This is a special action brought in the Supreme Court by Guy Stillman (the petitioner) against each of the County Recorders of the fourteen counties in Arizona. Petitioner asks that this court: 1. prohibit the destruction of records of those who voted at the last election, and 2. declare § 16-150, subsec. D A.R.S. to be unconstitutional. The petitioner, on 23 November 1970, filed with the S...
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The defendant, Harry Ortega Felix, was tried by a jury on an information charging *212 him with assault with intent to commit murder. The facts show that the defendant and his uncle entered a bar in Phoenix, Arizona. After the defendant sat down at a bar stool, he noticed a scuffle going on between his uncle and another man. Upon trying to break up the scuffle, the defendant was pushed by one R...
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The defendant, Manuel N. Betancourt, was charged and found guilty of the crime of armed robbery. The testimony elicited in the court below showed that Betancourt and three other men drove an automobile to Larry’s Hideout, a bar in Tucson, Arizona, for the purpose of robbing it. One of the men, Antonio Soza Moreno, walked into the bar before the others to check it out. After he returned outside, Be...
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We are asked to determine whether a hearing officer abused his discretion in granting an additional hearing which produced evidence which is in support of the Commission’s award finding the petitioner’s claim to be non-compensable. In February, 1968, the petitioner, Dr. Daniel J. Condon, was employed by the County of Maricopa as medical examiner. In connection with that employment, Dr. Condon was ...
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This case requires a determination as to whether a dealer in mobile homes is entitled to a “participation” in an agreement between a bank and its mobile home contract servicing agent. Plaintiff-appellee, Western Coach Corporation, an Arizona corporation, brought an action against defendant-appellant, Delta Corporation of America, a Florida corporation, seeking to enforce an agreement to pay Wester...
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The appellant, Arizona Title Insurance and Trust Co. (“Arizona Title”), appeals from a judgment holding it liable for negligent misrepresentations made by it to each of seven contractors (including material-men) to the effect that it either had in its capacity as “Builder’s Control” escrow agent sufficient funds or that there would be sufficient funds available to pay the contractors...
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The sole question presented to the Court for determination is whether there was reasonable evidence to support the finding of the Industrial Commission that petitioner’s neuropathic condition was not causally related to, nor aggravated by, his industrial accident. Petitioner sustained injuries to his right ankle, ribs and hand when he fell from the top of a fourteen foot cyclone fence while pursui...
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The case before us is a petition for a writ of certiorari from an award of the Industrial Commission of Arizona. The award here is the second award in the petitioner’s case, the first award having been set aside in Ronquillo v. Industrial Commission, 5 Ariz.App. 233, 425 P.2d 135 (1967). The Industrial Commission has undertaken to determine the questions raised in Ronquillo v. Industrial Commissio...
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The issue involved in this case is whether or not an affidavit of bias and prejudice filed pursuant to A.R.S. § 12-409 can work as an automatic disqualification of the juvenile court judge. The juvenile in this case has been charged in the juvenile court with a homicide. Prior to the time set for an adjudicatory hearing the minor filed an affidavit alleging that he believed that a fair and impa...
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The only question presented by this appeal is whether the petitioner successfully carried his burden of proof in hearings, conducted by the Hearing Officer of The Industrial Commission, based upon his petition to reopen his claim filed pursuant to A.R.S. § 23-1061. The Commission affirmed the decision of the Hearing Officer denying the petition to reopen and the petitioner is before us by virtue o...
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Shirley Hlavaty, while attempting to seat herself at a table in appellees’ restaurant, fell and sustained personal injuries. This lawsuit was filed to collect damages for those injuries. The case proceeded to trial before a jury and at the close of the plaintiffs’ case the court directed a verdict in favor of defendants, owners and operators of the restaurant. Appeal is from the judgment entered f...
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This case, involving a superior court order directing payment of $10,000 to the appellee from the real estate recovery fund pursuant to A.R.S. § 32-2188, was previously considered by us in Arizona Real Estate Department v. Arizona Land Title and Trust Co., 9 Ariz.App. 54, 449 P.2d 71 (1968). There, we reversed the order directing payment and remanded for a new hearing on the issue of whether this ...
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The petitioner questions the lawfulness of an award and findings of The Industrial Commission issued on 28 July 1970, upholding an award for non-compensable claim issued by the hearing officer on 17 June 1970. The petitioner alleged that he suffered a back injury arising out of and in the course of his employment on 2 May 1969. The petitioner had been employed by the defendant employer for approxi...
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This case is before the court by writ of certiorari to review the validity of an award and findings of the Industrial Commission of Arizona which denied any benefits to the petitioner. Petitioner claimed he suffered a hernia when a 48 pound cooler motor fell from a cooler he was cleaning and struck him in the abdomen. The issue in the case is whether or not the cooler motor did in fact fall on the...
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Louis J. Adams and John V. Cowgur, hereinafter referred to as the plaintiffs or Adams and Cowgur, brought this action in Maricopa County Superior Court against Marion A. Turley and Fern Turley, his wife, hereinafter referred to as the defendants or the Turleys. The plaintiffs sought a declaration of a constructive trust in their favor on property owned by the defendants and an order to show cau...
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OPINION Appellant, Alador Alex, was convicted following a jury trial of the crime of felony escape. The facts involved have been stipulated by counsel. On May 11, 1969, Alex was confined at the Adult Conservation Camp in Palmer where he was serving a sentence imposed after conviction of a felony. Alex failed to appear for the 4:30 p. m. meal on Sunday, May 11, 1969. He was subsequently locate...
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OPINION In this appeal appellant George Ronald Robinson claims that the sentence imposed by the superior court was excessive. 1 In the superior court Robinson was indicted for the crime of robbery 2 and using or carrying a firearm during the commission of a robbery. 3 After jury trial, he was found guilty of both charges and sentenced to 15 years imprisonment upon the robbery conviction...
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OPINION The Alaska Bar Association refused to certify petitioner for admission to practice law in Alaska. He has petitioned this court for admission, over opposition by the bar association. Petitioner passed the Alaska bar examination in March 1970. He has complied with all other requirements for admission except one — he is not a citizen of the United States, which is a prerequisite...
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OPINION Being land poor and pressed by numerous creditors, appellees Jim and Pearl Theus entered into a somewhat unusual contract with Earl Bell and appellants Vern L. Padgett and Investment Enterprises, Inc. Basically, the Theuses promised to convey 12 parcels of land to Investment Enterprises. Vern Padgett promised to lend Investment Enterprises $10,000. The corporation in turn promised...
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delivered the opinion of the court. The county placed upon its tax assessment roll for the years 1964 to 1969, inclusive, five buildings owned by the City of Cheyenne, Wyoming, and located upon its municipally owned and operated airport. The buildings in question were leased by the city to profit-making private corporations or individuals on fairly short-term leases, and according to the c...
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delivered the opinion of the court. The petitioner filed an application for post-conviction relief in which he alleged he was denied his constitutional right to a speedy trial because of prearrest delay. This is an appeal from an order of the district court granting the respondent’s motion to dismiss the petitioner’s amended application for post-conviction relief. Petitioner had been ...
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OPINION By the Court, This case involves the long-debated “Sunnyside Cutoff” which the Nevada Department of Highways decided to construct as State Highway 38. The appellants are residents, *185taxpayers and businessmen of Lincoln County who object to the Department of Highways’ location of this highway. The general route of Highway 38 was first established by the legislature in 1937 and has since ...
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*200 OPINION The appellate issue is whether there was an abuse of discretion when the district court dismissed an indictment against Raymond Kenneth Craig for failure to bring the accused to trial within 60 days after the finding of an indictment. The relevant facts bearing upon this issue are these: An indictment was returned February 19, 1970 charging Craig with the illegal sale of narc...
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OPINION This appeal challenges the sufficiency of the evidence to support the verdict of guilty of robbery returned by a jury against the appellant. We have reviewed the evidence contained in the record and find that it supports the verdict. Here the appellant contends that because he was wearing a stocking mask that his identity was so concealed that it was impossible for any witness to have accu...
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*215OPINION The appellant was convicted by a jury of the crime of attempted robbery. On appeal he contends that his constitutional right to counsel was denied when the victim of the attempted robbery was permitted to view the appellant from a photographic display prior to the trial without the presence of counsel for the appellant. From that photographic display, the victim identified the appellan...
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The three cases here on- appeal were consolidated in the district court for trial. The plaintiffs filed separate suits in the court below seeking to restrain the defendants in each case from violating Chapter 25, Laws of Utah, 1970. The legislature during its budget session of January, 1970, passed the Act we are here concerned with entitled “Sunday Closing.” After the effective date of th...
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The plaintiffs were the owners of certain shares of stock of Westland Minerals Corp. Murray First Thrift is the authorized transfer agent of the defendant West-land Minerals Corp. The stock certificates owned by the plaintiffs were investment shares and had not been registered for sale under the provisions of the Security Act of 1933. The plaintiffs filed their petition in the court below for a w...
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Appeal from a judgment modifying a judgment with respect to a will contest. Remanded for a new hearing. On controverted evidence, a signed and witnessed will was admitted to probate by a district judge who succeeded another district judge who had resigned, which latter had entered a judgment declaring the will to have been revoked. All this on exactly the same evidence and record. One of the subsc...
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This is an appeal from a summary judgment granted by the district court. There were several claims made by Skaggs (plaintiff s-appellants) against the Jensens and Sears Roebuck & Co. (defendants-respondents). Each claim and the disposition made by the trial court will be discussed separately in order to facilitate an understanding of this controversy. In 1961 a written leasing agreement wa...
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This is an appeal from a judgment of divorce rendered by the district court. The principal issues raised by the appeal are: (1) whether the trial court had jurisdiction of the subject matter or res, viz., the divorce (a significant factor in determining this question is whether or not Mr. Smestad, plaintiff-respondent, was an Idaho resident for six weeks prior to the commencement of the suit) ; ...
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This appeal is taken from a decision of the district court denying appellant relief under the Idaho Uniform Post-Conviction Procedure Act. I.C. § 19-4901 et seq. Appellant submitted his petition for post-conviction relief, and hearing was held, subsequent to the following events: A criminal complaint was filed on January 29, 1969 charging appellant with the unlawful importation, sale or furnish...
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This is an appeal by the wife (defendant-appellant) from a judgment awarding the husband (plaintiff-respondent) a divorce. The wife principally objects to the property settlement made by the trial court. The pertinent facts involved in this controversy are as follows. Orland and Elizabeth Peterson were married in Wyoming in 1948. Two children were born of the marriage. The record discloses that...
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This case was brought against the mayor and councilmen of the City of Hailey in their individual capacities as a result of the plaintiff tripping and falling over a ridge in a sidewalk. Plaintiff-appellant, Claire B. Carter (hereinafter plaintiff), tripped and fell over a ridge in a sidewalk in Hailey, Idaho, immediately following her departure from the office of Ensign, Davies and Ensign. Plai...
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delivered the Opinion of the Court. This is an appeal from a summary judgment entered on orders dated July 17, 1970 and October 2, 1970, which orders included findings, conclusions and a judgment in six parts. Plaintiff is a corporation formed in April 1958 by a group of electric distribution cooperatives, including the defendant McCone Electric Co-op., Inc. In 1958, McCone joine...
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sitting for MR. JUSTICE CASTLES, delivered the Opinion of the Court. This is an appeal from a decree which granted plaintiff a divorce, but which favored defendant in its provision for custody of the minor children of the parties and required the conveyance to defendant of plaintiff’s interest in jointly owned property. Neither party contests the decree insofar as it grants the divorce. By th...
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484 P.2d 754 (1971) 82 N.M. 534 STATE of New Mexico, Plaintiff-Appellee, v. Luis P. ANDRADA, Defendant-Appellant. No. 9245. Supreme Court of New Mexico. April 21, 1971. Ordered that petition for writ of certiorari be and the same is hereby denied. Further ordered that the record in Court of Appeals Cause No. 555, 82 N.M. 543, 484 P.2d 763 be and the same is hereby returned to the Clerk of the Cou...
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Original Proceeding in Certiorari Ordered that petition for writ of certiorari be and the same is hereby denied. Further ordered that the record in Court of Appeals Cause No. 555, 82 N.M. 543, 484 P.2d 763 be and the same is hereby returned to the Clerk of the Court of Appeals....
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Original Proceeding in Certiorari Ordered that petition for writ of certiorari be and the same is hereby denied. Further ordered that the record in Court of Appeals Cause No. 533, 82 N.M. 537, 484 P.2d 757 be and the same is hereby returned to the Clerk of the Court of Appeals....
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This matter coming on for consideration by the Court upon Report of the Board of Commissioners of the State Bar of New Mexico, charging Respondent, Edward J. Apodaca, with unethical and unprofessional conduct in the handling of his office trust account, and including Findings of Fact and Conclusions and Recommendations, and the Court being sufficiently advised in the premises, and the Respondent a...
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OPINION Defendant was convicted on two counts •of unlawful sale of marijuana under § 54-7-14, N.M.S.A.1953 (Rpl.Vol. 8, pt. 2), the Uniform Narcotics Drug Act. Defendant has appealed and contends here, as he did before the trial court, that the prosecution was improperly conducted under [§ 54-7-14] the general Act, but should have been prosecuted under the special Act, which applies specifically t...
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OPINION Defendant was prosecuted under § 54-7-14, N.M.S.A. 1953 (Repl. Vol. 8, pt. 2, Supp. 1969) for the unlawful sale or delivery of marijuana. This is the general narcotics statute. Defendant contended before the trial court, and asserts here, that the prosecution should have been under § 54-5-14, N.M.S.A. 1953 (Repl. Vol. 8, pt. 2), which is the special statute. We agree. This issue was decide...
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OPINION The defendant was convicted of violating § 40A-16-11, N.M.S.A.1953 (Rpl. Vol. 6), RECEIVING STOLEN PROPERTY. This statute reads: “Receiving stolen property consists of buying, procuring, receiving or concealing anything of value, knowing the same to have been stolen or acquired by fraud or embezzlement.” % % ‡ ‡ ‡ “Whoever commits receiving stolen property when the ...
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OPINION Convicted of aggravated burglary, § 40A-16-4, N.M.S.A.1953 (Repl.Vol. 6), defendants appeal. The issues concern: (1) severance; (2) lesser included offenses; (3) evidence of intent; (4) the instruction on intent; and (5) the failure to strike an allegedly unresponsive and prejudicial answer of a witness. Motion for severance. Both defendants moved for a severance. Baca’s motion clai...
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OPINION Defendant was convicted of aggravated battery (§ 40A-3-5(A) (C), N.M.S.A.1953 (1969 Supp.) ), and has appealed contending that the trial court erred in denying his motion for a continuance based upon the ground that a particular witness could not be located for service of a subpoena, and, further, in refusing to give certain tendered instructions relating to lesser included offenses. We af...
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OPINION This action presents a novel question concerning the “completed operations” hazard of the new form of comprehensive general liability insurance policy. Plaintiffs brought this action in the District Court of Santa Fe County against the State Highway Commission and others for wrongful death and other damages incurred as a result of an automobile collision caused by the presence on a fe...
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OPINION Faulkenberry was convicted of unlawfully selling or disposing of marijuana under § 54-5-14, N.M.S.A.1953 (Repl. Vol. 8, pt. 2), and unlawful possession of a dangerous drug, Pentobarbital Sodium, pursuant to § 54-6-38(B), N.M.S.A.1953 (Repl. Vol. 8, pt. 2, Supp.1969). Faulkenberry appeals. We affirm. Faulkenberry claims that (1) marijuana is not a dangerous drug; (2) he is entitled to two s...
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delivered the opinion of the Court. This is an original proceeding. The petitioner seeks relief in the nature of prohibition to enjoin a second trial after a previously declared mistrial. C.A.R. 21. We issued a rule to show cause why the relief sought should not be granted to which the respondents have answered. The issue raised by the proceeding is whether, under the circumstances hereina...
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delivered the opinion of the Court. *342 This is an interlocutory appeal brought by the defendants, who stand charged with possession of marijuana with intent to induce and aid another to unlawfully use and possess it. The marijuana was seized under a search warrant, which the defendants contend was defective and invalid. The trial court denied their motion to suppress the evidenc...
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Opinion by This case is here on writ of error to review the conviction of plaintiff in error of conspiracy to possess a narcotic drug, heroin. Horacio Angelo Macias, plaintiff in error, will hereinafter be referred to as defendant. The conviction of defendant was based on circumstantial evidence and the record shows the following factual situation. On October 20, 1967, four detectives of the Intel...
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Opinion by This case is here on writ of error to review the conviction of plaintiff in error of conspiracy to possess a narcotic drug, heroin. Horacio Angelo Macias, plaintiff in error, will hereinafter be referred to as defendant. The conviction of defendant was based on circumstantial evidence and the record shows the following factual situation. On October 20, 1967, four detectives of the Intel...
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delivered the opinion of the Court. The trial court, after a hearing, granted defendants’ motion to suppress evidence obtained by the police pursuant to a warrantless search of a van in which defendants Snelling and White were occupants. On behalf of the People, it is contended that probable cause existed for the warrantless arrests of the defendants, and that the search of the van was therefor...
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Opinion by The defendant, John M. Black, Jr., plaintiff in error and defendant below, will be referred to herein as defendant. On trial in the District Court for the County of Boulder on September 14, 1965, the defendant was convicted of the crime of burglary and sentenced to the State Penitentiary. Subsequent proceedings are reviewed in Black v. People, 166 Colo. 358, 443 P.2d 732 (1969). On rema...
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Opinion by The defendant, John M. Black, Jr., plaintiff in error and defendant below, will be referred to herein as defendant. On trial in the District Court for the County of Boulder on September 14, 1965, the defendant was convicted of the crime of burglary and sentenced to the State Penitentiary. Subsequent proceedings are reviewed in Black v. People, 166 Colo. 358, 443 P.2d 732 (1969). On rema...
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Opinion by *436 Plaintiff in error, George M. Moya, was convicted of second degree murder in the Denver District Court. He brings error to reverse the judgement of conviction. The only ground asserted for reversal concerns the giving of instruction No. 11, which was as follows: “The Court instructs the jury that when a killing is done unlawfully with a deadly weapon, or weapon calculated ...
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delivered the opinion of the Court. Plaintiffs in error are the parents of John K. McGill IV and were plaintiffs below in a wrongful death action against General Motors, Inc., defendant in error and defendant below. At the time of his death, the decedent was 23 years of age, married and childless. He was survived by his parents and his wife. He had been killed when his car went out of...
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delivered the opinion of the Court. Defendant-Petitioner, Mary Jane Martinez, was charged with a series of violations of municipal ordinaces and state laws in connection with an automobile accident which occurred on June 22, 1969. Pertinent to this appeal were a charge, and subsequent conviction, in Aurora municipal court of a violation of Aurora Municipal Ordinance § 11-18-4, careless driving;...
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delivered the opinion of the Court. *432 This writ of error is brought by Jaggers, hereinafter referred to as defendant, from a conviction for aggravated robbery. Defendant in error will be referred to as the People. On the evening of July 30, 1968, a 7-Eleven grocery store was held up in Denver. The prosecution called three witnesses; all of whom were in the store at the time of the robber...
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Opinion by By writ of error, defendant Lamb alleges the trial court erroneously denied his motion under Crim. P. 35(b) for post-conviction relief. We do not agree and therefore affirm the judgment of the trial court. Defendant’s 35(b) motion essentially claims a constitutional violation by the trial court when it permitted him to withdraw his previously entered pleas of not guilty and not gui...
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*458Opinion by Eugene Edward Arellano, the defendant below, was convicted of assault with a deadly weapon and sentenced to the penitentiary. He claims on this writ of error that manifest prejudicial error occurred during his trial which requires a reversal of the conviction. Briefly, his assertions of error may be classified as follows: (1) that the verdict of the jury was contrary to law and the ...
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*458Opinion by Eugene Edward Arellano, the defendant below, was convicted of assault with a deadly weapon and sentenced to the penitentiary. He claims on this writ of error that manifest prejudicial error occurred during his trial which requires a reversal of the conviction. Briefly, his assertions of error may be classified as follows: (1) that the verdict of the jury was contrary to law and the ...
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484 P.2d 805 (1971) Lillian DETER, Plaintiff in Error, v. Cloid DETER, Defendant in Error. No. 71-059. (Supreme Court No. 24215.) Colorado Court of Appeals, Div. I. April 20, 1971. *806 Sidney H. Tellis, Denver, for plaintiff in error. John Iacoponelli, Denver, for defendant in error. Not Selected for Official Publication. PIERCE, Judge. This case was transferred from the Supreme Court pursuant t...
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484 P.2d 811 (1971) Sally BENNETT and Brian R. Comstock, individually and as next friends of David Keith Comstock, Plaintiffs in Error, v. Susan Ann GITZEN and Burns Memorial Methodist Church, a nonprofit Colorado corporation, Defendants in Error. No. 70-646. (Supreme Court No. 24029.) Colorado Court of Appeals, Div. II. March 9, 1971. Rehearing Denied March 30, 1971. Certiorari Denied May 24, 19...
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484 P.2d 813 (1971) Glen Arthur ALCORN, Plaintiff in Error, v. John ERASMUS, a minor, by his next friend, Joan Woody, and Joan Woody, Defendants in Error. No. 71-044. (Supreme Court No. 24372.) Colorado Court of Appeals, Div. II. April 27, 1971. *815 Zarlengo, Mott & Carlin, Albert E. Zarlengo, Jr., Denver, for plaintiff in error. George J. Duckworth, Robert D. Bradley, Denver, for defendants...
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Plaintiffs filed a suit to enjoin the defendants from using a private road across plaintiffs’ property. The defendants filed a cross complaint seeking to enjoin the plaintiffs from interfering or obstructing defendants’ use of the road. The trial court entered a decree in favor of defendants, and plaintiffs appeal. The facts have been stipulated. Prior to May, 1962, the land in question was o...
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484 P.2d 824 (1971) Robert E. CHANEY, Appellant, v. FIELDS CHEVROLET CO., an Oregon Corporation, Respondent. Supreme Court of Oregon. Argued and Submitted June 3, 1970. Decided May 12, 1971. Reargued January 5, 1971. John J. Haugh, Portland, argued the cause and Garry Kahn, Portland, reargued the cause for appellant. With them on the briefs were Pozzi, Wilson & Atchison, Portland. R. Alan Wig...
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This is an action on a policy of automobile liability insurance brought by plaintiff through her guardian as an assignee of the named insured. From á judgment for plaintiff entered pursuant to a jury verdict, defendant appeals. The principal issues are an interpretation of a driver limitation endorsement upon the coverage afforded by the policy and whether there was sufficient evidence to susta...
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The plaintiff was injured when the frame of a *586 truck he had purchased and was operating broke and caused the truck to go off the road. Plaintiff brought this action for damages against the manufacturer of the truck, White Motor, the seller, Haupert Tractor, and Concrete-Steel, who made some repairs on the frame before the accident. Concrete-Steel “bought out” on a covenant not ...
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484 P.2d 844 (1971) In the matter of Corey Dean Weidner, a Child. STATE of Oregon, Respondent, v. Corey Dean WEIDNER, Appellant. Court of Appeals of Oregon, Department 1. Argued and Submitted March 15, 1971. Decided May 6, 1971. *845 James L. Carney, Asst. Atty. Gen., Salem, for the motion. William C. Snouffer, Portland, contra. Before SCHWAB, C.J., and FOLEY and THORNTON, JJ. Argued and Submitte...
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This matter is now before the court on the state’s motion to dismiss the defendant’s appeal from an order of the Washington County Circuit Court, Juvenile Department, remanding him to adult court. The defendant was remanded verbally on June 8,1970, and by written “Amended Order and Disposition” on June 23, 1970. The validity of his remand is the subject of the appeal, notice of which was filed on ...
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This is an appeal by the defendant-warden in a post-conviction relief proceeding from an order vacating petitioner’s second-degree murder conviction and granting a new trial. The issue presented is whether or not evidence in the hands of the prosecution, but not disclosed by it to the defense was of such a character that failure to turn it over to the defense was a violation of due process. ① ...
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Defendant upon trial by jury was convicted of first degree murder. On appeal he makes two assignments of error: (1) the court erred in denying defendant’s request to inspect notes made by the members of the district attorney’s office relating to conversations with two state’s witnesses; (2) the court erred in denying defendant’s motion for a new trial and in denying motion for issuance of subpoena...
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In 1960 defendant was convicted by a jury of second degree murder of an 11-month-old infant. In November 1969 this court authorized defendant to file a belated notice of appeal. On appeal, defendant contends that the trial *466 court erred (1) in allowing into evidence statements made by Mm to police when he had not been warned of his right to remain silent and his right to counsel; (2) in no...
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dissenting. As in State ex rel Gilmore v. Cupp, 1 Or App 22, 458 P2d 711 (1969), I again respectfully note my dissent. This court recently pointed out in Hanson v. Cupp, 5 Or App 312, 484 P2d 847 (1971), though in a different context, that there is clearly detectable “* * * a shift from concern with misconduct of prosecuting authorities as a fraud on the courts * * * [Mooney v. Holohan, 294 US 103...
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Defendant appeals from conviction of lewdly fondling and manipulating the private parts of a nine-year-old female child. ORS 167.227. Defendant claims error in (1) allowing the child victim to testify; (2) overruling a demurrer on the ground of unconstitutional vagueness of the statute; and (3) denial of motion for a directed verdict of acquittal on the ground of insufficient competent evidence...
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Upon trial by jury, during the course of which her written pretrial confession was introduced into evidence over objection, defendant was convicted of second-degree murder. On appeal she asserts that the confession should not have been admitted because she was so intoxicated at the time she made the statement she could not freely and voluntarily waive her right to counsel and right to remain silen...
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Defendant was indicted for unlawful possession of marihuana in violation of ORS 474.020. Prior to trial he successfully moved to suppress the evidence, marihuana, seized by the arresting policeman. The state appeals under the provisions of ORS 138.060 (4),① contending that the order of suppression was not supported by the evidence. The arresting officer testified that he stopped the defendant as a...
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Defendant was convicted by a jury of unarmed robbery in violation of CBS 163.290. He appeals contending that the lower court erred in admitting into evidence over objection of defense counsel testimony by police of defendant’s incriminating statements and acts, because defendant had initially indicated his wish to remain silent. The escapade began in Lane County on the night of March 9, 1970, a...
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This is a suit brought in the name of the People of the State of Oregon through the Attorney General “on behalf of John E. Black, Real Estate Commissioner,” pursuant to alleged authority in ORS 180.060 (1) (d) and (6), and ORS ch 697. The Real Estate Commissioner verified the complaint, but is not named a party in the title of the ease. In this regard it should be noted that ORS 16.070 requires...
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Defendant was convicted of assault and robbery while armed with a dangerous weapon. He appeals on the ground that his pretrial motion to suppress evidence taken from the automobile in which he was traveling at the time of arrest should have been allowed. The defendant does not contend that the police did not have probable cause to arrest him for the crime for which he was convicted, nor does he co...
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The first question is whether the Corporation Commission of Oklahoma has power and authority in nunc pro tunc proceedings to correct inadvertent, ministerial and clerical errors which erroneously reflects a decision not rendered by the Commission. We hold that it does. Central Oklahoma Freight Lines, Inc., applied to the Commission for authority to operate Class “A” Motor Carrier Service o...
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Pursuant to a pleading entitled “PETITION AND RELINQUISHMENT OF CHILD FOR ADOPTION”, which Nina Richmond filed in the trial court during August, 1969, alleging that an illegitimate female child born to her, nine days previously, came under this State’s Juvenile Code as a delinquent child, and that for the reason that petitioner had no home of her own and was financially unable to care for the chil...
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The ultimate question here is whether a county, through the creation of a public trust, is authorized to construct a toll urban expressway, which is a turnpike. We hold that the Oklahoma Turnpike Authority is the sole body corporate and politic authorized by law to construct a turnpike. The judgment of the District Court, as modified, is affirmed. The Board of Commissioners of Oklahoma County crea...
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MEMORANDUM OPINION Plaintiff in error, George Allen Jennings, hereinafter referred to as defendant, was convicted by jury verdict and sentenced to ten years imprisonment for Robbery with Firearms, After Former Conviction of a Felony in the District Court of Oklahoma County, Case No. CRF-69-1152. Judgment and sentence in accordance with the verdict was imposed on December 8, 1969, and this appeal p...
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This is an original proceeding in which Donald J. Curry, hereinafter referred to as Petitioner, alleges that he is being unlawfully confined in the state penitentiary where he is currently being held by virtue of a judgment and sentence rendered against him in the District Court of Oklahoma County, Case No. CRF-69-2160, on his plea of guilty. The judgment and sentence assessed a term of five year...
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OPINION John Jeff Underwood, hereinafter called the defendant, was charged in the District Court of Oklahoma County in case No. CRF-69-112, with the crime of Robbery with Firearms. Defendant entered a plea of Guilty before the Honorable William S. Myers, District Judge of Oklahoma County, who fully and competently advised *890him of his right to trial by jury, the consequences of the entry of a pl...
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This is an original proceeding wherein petitioners are seeking an alternative writ to prohibit the interruption of their preliminary examination; and the reassignment of that examination to another magistrate. This raises the question: “Can a District Judge interfere in a preliminary examination, already commenced; and by an ex parte order, on the motion of the prose *894 cutor, dismiss the inf...
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MEMORANDUM OPINION Plaintiff in error, Naoum Noun Shaba-rekh', hereinafter referred to as defendant, was charged by information with the crime of Child Beating, after Former Conviction of a Felony in the District Court of Oklahoma County, Case No. CRF-70-255. Defendant was tried by a jury, which re*899turned a verdict finding defendant guilty as charged and fixing punishment at eight years impriso...
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OPINION Proscriptions inherent in the laws of this State regarding prosecution of, and punishment for, criminal acts or omissions are designated in Oklahoma’s Penal Code as in Title 21 O.S.1961, § 23, in effect when this trial was had, as follows: “An act or omission which is made punishable in different ways by different *901 provisions of this Code, or other penal statutes, may be punishe...
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The plaintiffs appealed from a summary judgment entered against them by the trial court in a personal injury action. The Court of Appeals, by less than a unanimous decision, affirmed the trial court with respect to the defendant Boswell and his employer, Gray Line Tours, Inc., but reversed the judgment as to the defendant Reeser and his employer, Metropolitan Transit Corporation. The defendant Ree...
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Petitioner Robert J. Riddell was charged with the crime of second-degree assault. Convicted by a jury, he was given a suspended sentence and released on probation. In State v. Riddell, 75 Wn.2d 85, 449 P.2d 97 (1968) we affirmed the subsequent revocation of his probationary status. By petition for writ of habeas corpus, he now asks for a new trial, claiming error at the time of his conviction. ...
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79 Wn.2d 279 (1971) 484 P.2d 910 THE STATE OF WASHINGTON, Petitioner, v. JOSEPH MELLO, Respondent. No. 41806. The Supreme Court of Washington, En Banc. May 6, 1971. WRIGHT, J. Defendant was convicted of assault in the second degree in the superior court. Upon appeal to the Court of Appeals, the conviction was reversed. The matter is before this court following a petition for review by the state, ...
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In 1968, the State Department of Natural Resources authorized a sale of timber from state-owned normal school lands. See RCW 79.01.004. The published notice of sale listed approximate quantities of Douglas fir, hemlock and cedar which were to be sold at the public auction. This notice expressly indicated that the recited timber quantities were not based on a tim...
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(concurring in the result) — I concur with the result of the majority, but would go further and hold the film “Carmen Baby” to be obscene under the definitions of Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. *271Ct. 1304 (1957). That an exhibition of the film, even to consenting adults, would be in violation of RCW 9.68.010. We defined obscenity in Roth in the following terms: “[WJ...
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Defendants, Washington Toll Bridge Authority (“Toll Bridge”) and Boyd D. Simmons and wife, appeal from an order granting Paul Zorotovich a new trial. Plaintiff Zorotovich cross-appeals and assigns error to the trial court’s failure to give his requested instruction defining the Toll Bridge’s duty of care as being the “highest degree of care” rather than “ordinary care” as stated in the court’s ins...
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The plaintiff, Tex Brotherton, Inc., operates an automobile dealership in Walla Walla, Washington. As an incidental part of its automobile business it also sold Dodge motor homes. Defendants Lammers, doing business as Lammers Truck Service, operate a Chevron service station, auto repair shop, and also sell propane. On August 12, 1967 plaintiff’s serviceman drove a Dodge motor home to the Lammers T...
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This is an action for damages arising out of a *895collision at a highway intersection between plaintiffs’ wheat truck making a left turn and defendants’ overtaking automobile attempting to pass. Plaintiffs, whose son Marvin was driver of the left-turning truck, sought to recover for resulting property damages. Defendant Irvin W. Lane, owner and operator of the overtaking automobile, counterclaime...
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Defendant, Howard D. Mathews, was found guilty by a jury, of possession of heroin, a narcotic drug, and grand larceny. He appeals from the judgment entered upon the jury verdict. Defendant’s counsel concedes that any appeal from the grand larceny conviction would be frivolous 'and without merit. In accordance with Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), he...
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*863Opinion Petitioners1 seek a writ of prohibition restraining respondent court from taking further proceedings in a criminal action charging them with a violation of section 9-108 of the Municipal Code of the City of Seaside (City). The ordinance prohibits parades or civic demonstrations obstructing the free use of streets and sidewalks without first obtaining a permit from the City.2 We issued ...
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Opinion In this antitrust case, plaintiffs Harold Corwin and Allen Barr, doing business as Statewide Publication Service (Statewide), appeals from a summary judgment in favor of defendant Los Angeles Newspaper Service Bureau, Inc. (Bureau) and 40 of its member newspapers also joined as defendants. As will appear, we have concluded that upon the record presented the summary judgment was er...
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Opinion We consider whether a group of consumers who have bought merchandise under installment contracts may maintain a class action seeking rescission of the contracts for fraudulent misrepresentation on behalf of themselves and others similarly situated, against both the seller of a product and the finance company to which the installment contracts were assigned. We conclude that such a...
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Opinion In this case we hold that a juvenile 1 who has been temporarily detained by juvenile court authorities and subsequently released *771 without further proceedings does not become subject to a record which should be described as an “arrest” or “detention” record. In filling out forms for applications for educational or occupational opportunities such a juveni...
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*788 Opinion This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar that petitioner be suspended from the practice of law for one year on conditions of probation including three months’ actual suspension. 1 Petitioner, who was admitted to practice in 1952, was charged in a notice to show cause with forging the name of a client, Glo...
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The opinion of the court was delivered by Plaintiff brought this action to recover damages in the amount of $200,000 for the alleged alienation of his wife’s affections. The case was tried by the court without a jury. Defendant has appealed from a $50,000 judgment. Highly summarized, the background of the matter is substantially as follows: Plaintiff, Leronzo LaFayette Wilson, a negro, was ...
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The opinion of the court was delivered by The appeal in this case stems from a judgment dismissing a divorce action at the conclusion of a full-dress trial. The defendant husband has appealed. Mr. and Mrs. Schrader were legally married on December 10, 1960. Domestic felicity did not long remain placid, and dissolution of the troubled union was judicially decreed on June 6, 1966. At t...
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The opinion of the court was delivered by This appeal is by a youthful plaintiff from summary judgment rendered against him in his action for damages resulting from a fall into an excavation made by defendant. Briefly stated, so far as now pertinent, plaintiff’s petition alleged that defendant was engaged as a subcontractor on a construction job for the Grace Lutheran Church located near Pawn...
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The opinion of the court was delivered by This is an appeal by a host driver defendant from a judgment recovered by a guest passenger plaintiff. The judgment was rendered on a jury finding of gross and wanton negligence. The principal contention is that the evidence is insufficient to warrant a finding of gross and wanton negligence. The automobile accident, which gave rise to this litigation, oc...
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The opinion of the court was delivered by The appellant, Lee Brooks, was expelled from the *278 Petroleum Club of Wichita. He instituted this action in mandamus to compel his reinstatement and further sought to recover actual and punitive damages from certain of the defendants as a result of his alleged wrongful expulsion. Appellee Petroleum Club is a nonprofit corporati...
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This action was instituted by assignees of an insured against his insurance company seeking damages against the insurer. *193 The plaintiffs-appellants herein are Richard Creed Openshaw and his wife, Hope Openshaw, Judy Wilson and Howard Ward. These are the same parties who as plaintiffs instituted a negligence action against Gordon and Marine Adams alleging Gordon’s negligence as...
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This is an appeal from an order granting a new trial to Leo Fignani and Neva Fignani, plaintiffs-respondents, in a negligence action, after a jury trial at which the City of Lewiston and Richard W. Thomas, defendants-appellants, were found negligent and liable for damages in the amount of $2,000. The trial judge, upon timely motion by the Fignanis for a new trial, granted the motion unless the ...
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OPINION This appeal questions the constitutionality of Alaska statutes which provide a *1041 method for unification of local government units. Appellant City of Douglas instituted a declaratory judgment action in the superior court seeking a declaration that AS 29.85.-160(c), a portion of our statutes relating to unification of local government units, was violative of article X, section 9 o...
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A jury found the defendant Jesus Sanchez Lopez guilty of murder in the first degree and fixed the penalty at life imprisonment. The court in accordance with the verdict, on June 2, 1969 sentenced defendant to life in the Arizona State Prison. From his conviction, sentence and denial of a motion for new trial defendant appeals citing error by the trial court in the admission .of hearsay and other i...
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Defendant, Donna Louise Smith, entered a plea of guilty to one count of assault with a deadly weapon and to one count of armed robbery. The offenses with which she was charged arose out of the armed robbery of a liquor store and a beauty salon on December 5, 1969, by the defendant and another woman. Defendant was sentenced to prison for a term of from fifteen *219 years to life on each count; t...
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This is an appeal from an order denying appellants’ (defendants in the trial court) motion for a judgment notwithstanding the verdict, or in the alternative for a new trial. The appellee, Lloyd Coyier, who was the plaintiff in the trial court, filed a complaint against defendants, Paul I. Maicoff and his wife, based upon an oral agreement involving the sale of certain real estate in Yavapai Cou...
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Vincent L. Fitzgerald, a single man, was the plaintiff in an action filed in the Superior Court seeking damages for the personal injuries which he sustained in a motor vehicle accident. The defendants were the appellant Fred N. Stump, a single man, and David P. Garcia. Mr. Oliver H. Maud represented Stump in the trial and represents him on the appeal. Mr. Arthur M. Johnson represented Garcia in t...
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Defendant, Barbara Schwartz, was convicted by a jury on two felony counts: Count I, grand theft; and Count II, drawing a check on no account. She was thereafter sentenced to a prison term of not less than five nor more than eight years on the grand theft count, and not less than four nor more than five years on the check count. The sentences were ordered to run concurrently. On appeal from thes...
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The sole question presented on review is whether there was reasonable evidence to support the finding of the Industrial Commission that petitioner has no permanent disability attributable to his industrial accident. Petitioner sustained an industrially related back sprain while performing his duties as a fireman with the Tucson Fire Department. A subsequent physical examination disclosed the pr...
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The issue before us in this special action proceeding is whether the petitioner, Chrysler Corporation, was properly made a third party defendant in a personal injury suit commenced by the respondents Hacker against the respondent City of Phoenix and its police officer, the respondent Rolnick. The respondents Hacker filed a complaint alleging that Willis A. Hacker was injured when the autom...
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We granted our writ of certiorari to review the validity of the award and findings of The Industrial Commission of Arizona which awarded petitioner temporary disability benefits in the form of medical expenses. Although the petitioner states the question before us in different terms, the real question is whether the medical evidence before the Referee and Commission was in conflict, as respondent ...
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The petitioner brings this writ of certiorari to test the lawfulness of an award and findings of The Industrial Commission of Arizona which denied his petition for rehearing of the award for unscheduled permanent partial disability issued February 25, 1970, finding that the petitioner suffered a 10% general physical functional disability with no loss of earning capacity. The petitioner raises two ...
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*245OPINION By the Court, We have heretofore ordered these cases to be combined for our consideration. To the extent that the briefs on file are relevant and material they are being considered in both cases. On April 26, 1967, the appellant and Basil Alvin Johnson, *246the natural parents of Susie DeeLin Johnson, consented in writing to the appointment of Alta Smith Johnson, the child’s paternal g...
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484 P.2d 1075 (1971) Charles W. CARDINAL et al., Appellants, v. C. H. MASLAND AND SONS, a Pennsylvania Corporation, Respondent. No. 6308. Supreme Court of Nevada. May 14, 1971. Rehearing Granted July 15, 1971. *1076 Lionel Sawyer Collins & Wartman and Jeffrey N. Sheehan, Las Vegas, for appellants. Beckley, De Lanoy & Jemison, Las Vegas, for respondent. OPINION MOWBRAY, Justice. Charles W...
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OPINION By the Court, This is an appeal from a jury’s verdict in favor of respondent-defendant Barney’s Club, Inc., and denying the claim of appellants-plaintiffs Martha V. and Oswald B. Yturralde for damages for injuries Martha suffered while standing on a stairway landing in Barney’s Club. Martha was struck by one *251Richard Herman Wohlert, a patron, who was exiting the premises. Appellants hav...
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*232OPINION Appellant was convicted of kidnaping in the first degree (NRS 200.310) and sentenced to life imprisonment under NRS 200.320(1 ).1 He now attacks the constitutionality of NRS 200.320(1) on the basis that this sentencing statute produces guilty pleas, waivers of trial by jury and deals obtained under pressure and coercion of fear of the death penalty. He relies on Spillers v. State, 84 N...
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*237 OPINION The appellant was charged by criminal complaint with robbery (NRS 200.380), rape (NRS 200.363) and aiding and abetting rape (NRS 200.363 and NRS 173.135). After a preliminary examination he was held to answer. An information charging those crimes was filed on June 17, 1970. On October 1, 1970, the appellant was charged by grand jury indictment with the crimes of robbery and rape,...
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*234 OPINION The appellant was charged by criminal complaint with “furnishing narcotics” in violation of NRS 453.030 and NRS 453.210(2). After a preliminary examination he was bound over to the district court for trial. He sought a writ of habeas corpus on the grounds that the complaint, and the information which was subsequently filed using the same language as was used in the complaint, fai...
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OPINION This appeal challenges the sufficiency of the evidence to support the verdict of guilty of grand larceny returned by a jury against the appellant. It appears that the appellant is really complaining about the weight of the evidence rather than its sufficiency. She argues that there was a discrepancy between the testimony of one of the state’s witnesses at the trial and her written sta...
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*210 OPINION By the Court, The respondent entered the appellant hotel on June 10, 1966, to participate in a social security number contest. The desk where the contest was being conducted was located near the entrance of the hotel next to the door to the Cortez room where a fashion show was being held. A sign stood between the contest desk and the Cortez room entrance publicizing the fashion...
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OPINION By the Court, Appellant originally was arrested and posted bail on a complaint filed in the Justice Court of Las Vegas Township, charging sale of marijuana to a person over the age of 21, a violation of NRS 453.030. Awaiting a preliminary hearing, which he *221 demanded, appellant returned home to Colorado, where he was employed by a tree service company. The prosecution sought seve...
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*241 OPINION By the Court, The appellant was originally employed on October 4, 1961 by Edgerton, Germeshausen & Grier, Inc., also known as E. G. & G., Inc. Thereafter, he worked as an instrument maker which entailed the machining, on a lathe, of metals and metal alloys. The appellant worked on aluminum, cold rolled iron, cold rolled steel, brass, copper, beryllium copper, se...
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*217OPINION This appeal is not ripe for our consideration. A juvenile court referee found the appellant guilty of involuntary manslaughter and recommended that he be adjudged a delinquent child [NRS 201.090(14)] and that a dispositional hearing be held. His finding and recommendations were prematurely approved one day later by a district judge and made an order of the court. Rule XXVII(4)(5) of th...
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OPINION This appeal presents a single issue: Should the ruling of Boykin v. Alabama, 395 U.S. 238 (1969), be applied retroactively? This question has, of course, been answered in the negative by this court. Mathis v. Warden, 86 Nev. 439, 471 P.2d 233 (1970); Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970). Appellant concedes as much and, indeed, in the *255lower court he admitted tó the judge t...
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Plaintiff, as the sublessee of two logging trucks and trailers, brings this action against the sublessor for $2,227 for the cost of repairs which defendant allegedly agreed to pay to put the trucks in proper condition for operation. Plaintiff also sues for $1,720 in repayment of two-thirds of the rental payments made by plaintiff and which were to have been applied as part payment on later purchas...
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dissenting. For the reasons stated in the opinion of the Tax Court, I disagree with the reasoning of the majority opinion and, therefore, most respectfully dissent. McAllister, J., joins in this dissent....
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This litigation arose when the plaintiff filed a .'complaint in the Oregon Tax Court alleging that it ■was an Oregon corporation operating a sewage treatment plant; that the system qualified as a pollution control facility and was entitled to certification pursuant to ORS 449.605 et seq; that defendant erroneously rejected plaintiff’s application for certification and that such rejection denied pl...
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Defendant appeals from conviction by the court of obtaining money under false pretenses. ORS 165.205. The basis of the charge was that the defendant passed a check drawn upon a closed bank account. She claims error in that (1) the indictment did not charge a crime because it did not allege that the account was nonexistent or closed; (2) that the check was never formally presented to the bank for p...
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This is an appeal from a jury conviction for the crimes of inducement of a child into a conveyance with the intent to commit a sex offense, and sodomy. ORS 167.045; ORS 167.040. The defendant was first indicted November 7, 1968. This indictment also charged defendant with contributing to the delinquency of a minor. In his first trial, he was found guilty by the court of all counts. Because defe...
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Defendant appeals from conviction by the court of attempted malicious injury to property by explosive. ORS 164.830. He contends (1) his motion for a new trial which was based on newly discovered evidence should have been allowed; and (2) he was deprived of effective assistance of counsel. On the night of August 30, 1968, someone planted a stick of dynamite in Lane County Democratic Headquarters. W...
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Affirmed from the bench....
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Defendant appeals from a sentence of 15 years’ imprisonment for burglary. ORS 164.230. He pled guilty to the charge on February 11, 1970. The matter was continued for sentencing and a pre-sentence investigation was ordered. On March 27, 1970, a sentence hearing was held at which defendant said he was taking a radio course which would take approximately four months to complete. Defendant was an ex-...
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The defendant, Yan Tassel, appeals from an order made in a proceeding under ORS 426.070 through 426.170, adjudicating him to be a mentally ill person and committing him to the Oregon State Hospital, Salem, on the ground that the judicial proceeding which resulted in this order did not follow the requirements of ORS 426.070 in so far as it requires: “The judge * * * upon being notified in writin...
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Affirmed from the bench....
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Affirmed from the bench....
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Defendant appeals from conviction of embezzlement under ORS 165.005. He contends that he is not within one of the classes that can be charged under the statute, and that the court improperly exercised its discretion in denying his motion for a continuance. Defendant was employed under a written agreement as a salesman for Harry L. Marx & Associates, Inc., doing business as Beltone Hearing Aid Cent...
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Aeeirmed erom the bench....
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Affirmed from the bench....
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On May 1, 1968, defendant pleaded guilty to each count of a three-count indictment charging him with illegal possession of morphine, illegal possession of numorphan, and illegal possession of alvodine, all narcotic drugs. On the same date he pleaded guilty to assault and robbery being armed with a dangerous weapon. He had a previous criminal record. Defendant’s guilty pleas were entered of record ...
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Affirmed from the bench....
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Aeeirmed erom the bench....
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Affirmed from the bench....
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Affirmed from the bench....
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Arbirmed erom the bench....
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Aeeirmed erom the bench....
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Affirmed from the bench....
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Aeeirmed erom the bench....
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Affirmed from the bench....
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Affirmed from the bench....
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Aeeirmed erom the bench....
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Affirmed from the bench....
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Aeeirmed erom the bench....
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Aeeirmed erom the bench....
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Affirmed from the bench....
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Aeeirmed prom the bench....
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This is an appeal by the state, under the authorization of ORS 138.060 (2), from a pre-trial order sustaining defendant’s plea of former jeopardy under ORS 135.820 and dismissing an indictment charging him with being an ex-convict in possession of a firearm. Defendant’s plea of former jeopardy was based upon the fact that he had previously been convicted in the Municipal Court of the City of Port...
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This is an appeal from a superior court order quashing appellant James Kuhnhausen’s writs of attachment and execution upon certain real estate then allegedly owned by C. James England. Respondents Oscar K. Will, Melvin G. Heide, and W. E. Sander, intervenors at the trial level and the real parties of interest on appeal, have filed a motion to dismiss the appeal because of appellant’s failure to ti...
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This is an action by the plaintiff (appellant) , F. D. Rich Co., Incorporated, a construction company, to recover a retail sales tax paid under protest which was levied against the plaintiff by the defendant (respondent), the Washington State Tax Commission (now the Department of Revenue), for construction of military housing at the Fort Lewis Military Reservation. The facts upon which this appeal...
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This case involves a challenge by the appellant, H & B Communications Corporation, to the constitutionality of a business and occupation tax levied by the respondent, City of Richland, Washington, on the gross revenues earned by appellant in said city. *313 The appellant operates a community antenna television system, known as CATV, in Richland. The CATV system began in Richland o...
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79 Wn.2d 288 (1971) 484 P.2d 1146 THE STATE OF WASHINGTON, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, Appellant. No. 41359. The Supreme Court of Washington, En Banc. May 13, 1971. *289 Warren H. Ploeger, James E. Nelson, and J. Fred Simpson, for appellant. Philip H. Faris, Prosecuting Attorney, for respondent. Slade Gorton, Attorney General, Theodore O. Torve and ...
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The facts of the instant dispute arise from a modem day railroad “holdup,” which, unlike historical counterparts, was perpetrated by “lawmen” rather than by “highwaymen.” In the late afternoon of August 4, 1968, the sheriff of Whitman County intercepted the crew of appellant Chicago, Milwaukee, St. Paul and Pacific Railroad Company’s eastbound train No. 264 and required them to stop the train near...
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The State of Washington appeals from a judgment for plaintiffs, A. L. and Ethel M. Reil, in their personal injury suit which emanates from the alleged negligence of the state in maintaining a stretch of highway in the Tri-City area. The sole issue is whether the trial court erred in admitting evidence that the state patched several chuckholes along the highway in question 2 days after plai...
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Henry M. Keron, receiver for Mar-Min Enterprises, Inc. (“Mar-Min”), sued Namer Investment Corporation (“Namer”), and The Aetna Casualty and Surety Company (“Aetna”). 1 Mar-Min’s claim for damages is predicated on the theory expressed in the pleadings and the opening statement to the trial court that Namer wrongfully evicted Mar-Min from the premises it leased from Aurora Merchandising Corporati...
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Defendant, Paul Edward Goodwin, appeals a second-degree arson conviction for setting fire tO' a garage located on premises occupied by his former wife. The facts surrounding the commission of the alleged arson are not material to the determination of this appeal. The numerous assignments of error and corresponding argument may be divided into two general categories: (1) infringement of defendant’s...
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Defendant was convicted in a case tried to the court below without a jury on two counts of selling a dangerous drug (lysergic acid diethylamide, or LSD-25). He appeals from the conviction and sentence imposed. The facts as stated in the agreed statement, which raise the basic question in this appeal, are as follows: “ [Defendant], Craig M. Duarte, was charged by information filed May 14, 1970...
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Plaintiff, Mrs. Chung Hunter, claims damages suffered as a result of an allegedly unsuccessful dermabrasion procedure performed by defendant, Walter S. Brown. Dr. Brown is a medical doctor whose specialty is plastic and reconstructive surgery. At the close of Mrs. Hunter’s case, the trial judge sustained Dr. Brown’s challenge to the sufficiency of the evidence. Mrs. Hunter appeals from the judg...
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Defendants, husband and wife, were charged by information filed October 3, 1968, with the crime of manslaughter for negligently failing to supply their 17-month child with necessary medical attention, as a result of which he died on September 12, 1968. Upon entry of findings, conclusions and judgment of guilty, sentences were imposed on April 22, 1969. Defendants appeal. The defendant husband, ...
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ON PETITION FOR REHEARING The appellant in this matter has filed a petition for rehearing claiming our original opinion, 483 P.2d 513, contains two erroneous statements. The first statement said to be incorrect is this: “But Naughton, the claimant, at no time filed an affidavit. The second statement said to be incorrect is: “Naughton filed a claim but did not make an affidavit.” Strictly speaking,...
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Defendants appeal from a jury verdict and judgment thereon awarding $18,000 general and $6,811 special damages to the plaintiff, Dina Skollingsberg, mother and guardian ad litem for Her 16-year-old son, Gunnar, for a broken leg and other injuries he suffered in a collision between his motorcycle and a truck of defendant General Electric driven by defendant Paul Brookover; and for a subsequent ref...
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This appeal involves the interpretation of the omnibus clause of two separate insurance policies. The trial court granted a summary judgment holding that neither policy afforded any coverage to Dan Allison or to the estate of his deceased minor son Rick, who at the time of his death was sixteen years of age. There is no dispute as to the facts of the case, and summary judgment would be pro...
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Appeal from an order in a mandamus proceeding requiring the members of the defendant Planning Commission to issue a permit authorizing petitioner to operate a s'tate liquor store in her cafe subject to approval of the local1 and state authorities.2 Neither affirmed nor reversed, but remanded for further proceedings. Salt Lake County (the local authority), by a 1969 ordinance3 implementing the legi...
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The plaintiff filed two cases in the District Court for Davis County, requesting the court to declare that it had valid and subsisting rights in certain easements and restraining the defendants from interfering with the plaintiff’s use thereof. After a pretrial was held in the court below, the court determined that there were no issues of fact to be tried except as to an issue of damages raised by...
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This is the second appeal in this case. The first appeal in this matter was by the plaintiff from a summary judgment entered by the court below in favor of the in-tervener. After remand and a trial in the court below, judgment was entered in favor of the plaintiff and against the intervener, and the intervener now appeals to this court. The plaintiff, Beehive State Bank, was a judgment creditor of...
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Appeal from a summary judgment dismissing a complaint against the City and denying plaintiffs’ motion to join two-doc *80 tors as defendants. Affirmed, parties to bear their own costs. Plaintiff, Connie Wilcox, was a waitress at a time when a city ordinance was in force requiring annual X-ray tuberculosis check ups for renewal of waitresses’ permits, 1 — which ordinance was passed under sta...
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Opinion by The Adams County Court convicted the defendant of *463 driving a motor vehicle while his driver’s license was suspended. On appeal, the Adams County District Court reversed the conviction on the grounds that the Order of Suspension issued by the Motor Vehicle Department was void because the defendant did not receive the Notice of Suspension. We affirm the ruling of the District Cou...
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delivered the opinion of the Court. Petitioners seek review of an Order of the Weld County District Court affirming their conviction for disturbance under 1965 Perm. Supp., C.R.S. 1963, 40-8-1. They contend that the County Court lacked jurisdiction to proceed with the trial of the charges against them, because the state statute under which they were prosecuted and convicted was superseded ...
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delivered the opinion of the Court. This is an interlocutory appeal from the district court of El Paso County where a motion to suppress evidence was denied. The record discloses that on October 8, 1968, officers of the New Mexico State Police were conducting a roadblock north of Truth or Consequences, New Mexico. All vehicles, both north and southbound, were being stopped in order to check “...
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Opinion by Raymond T. Sisneros, who will hereafter be referred to as defendant, was tried and convicted of the crime of aggravated robbery, C.R.S. 1963, 40-5-1, and sentenced to not less than twelve nor more than eighteen years in the Colorado State Penitentiary. The defendant requested an instruction on simple robbery. The only question here then is whether the evidence is such as to require an i...
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Opinion by Raymond T. Sisneros, who will hereafter be referred to as defendant, was tried and convicted of the crime of aggravated robbery, C.R.S. 1963, 40-5-1, and sentenced to not less than twelve nor more than eighteen years in the Colorado State Penitentiary. The defendant requested an instruction on simple robbery. The only question here then is whether the evidence is such as to require an i...
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delivered the opinion of the Court. All the plaintiffs in error, hereinafter referred to as defendants, were charged with trespass, possession of marijuana, and conspiracy to possess marijuana. Upon motion, the court ordered that the first count of the information charging trespass be dismissed. Upon trial the court denied the defendants’ motions to acquit and all defendants were found guilty of p...
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delivered the opinion of the Court. All the plaintiffs in error, hereinafter referred to as defendants, were charged with trespass, possession of marijuana, and conspiracy to possess marijuana. Upon motion, the court ordered that the first count of the information charging trespass be dismissed. Upon trial the court denied the defendants’ motions to acquit and all defendants were found guilty of p...
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delivered the opinion of the Court. *441 This matter involves a contest as to priority dates, concerning unadjudicated water in Main Elk Creek, Garfield County. Plaintiff in error, Elk-Rifle Water Company (Elk-Rifle herein) seeks to appropriate the water of Main Elk Creek for its Elk-Rifle Water Supply Project, while defendant in error, S. H. Templeton, for and on behalf of Socony...
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Opinion by The plaintiffs in error will be referred to as defendants or by name. The defendants were charged in the District Court of Pueblo County with two counts: Possession of a narcotic drug (C.R.S. 1963, 48-5-2 and 48-5-20); and conspiracy to possess a narcotic drug (C.R.S. 1963, 40-7-35). The defendants Fagin and Sisneros were found guilty of both counts, but the defendant Montoya was fou...
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delivered the opinion of the Court. This is an interlocutory appeal by a defendant, charged with unlawful possession of marijuana, seeking review of the trial court’s ruling which denied a motion to suppress the marijuana. Defendant was observed by two police officers to be operating a vehicle in excess of the speed limit, and was stopped by those officers for that violation. By radio, the of...
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delivered the opinion of the Court. *564 Pursuant to C.A.R. 21, the petitioner sought a Writ in the Nature of Mandamus and Prohibition. The petitioner was charged in two separate informations that were filed on January 22, 1970, in the Twelfth Judicial District. The first information charged burglary and theft, and a second information charged theft and arson. Both informations alleged crimin...
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delivered the opinion of the Court. Plaintiff in error, defendant in the trial court, was convicted by a jury on two counts of assault with a deadly weapon, one on a Mrs. Reeves, and one on a Mrs. Miller, and sentenced from four and one-half to five years on each count, the sentences to be served consecutively. Two counts of assault with intent to commit rape were dismissed, and the jury foun...
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delivered the opinion of the Court. This is an interlocutory appeal by the People for review of a trial court ruling which suppressed certain evidence seized during execution of a search warrant. Defendants Robert Piwtorak and Ronald Demello brought separate motions to suppress certain evidence, to wit: (a) one twenty dollar bill which had been removed from the wallet of defendant Demello; (b...
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Opinion by This is an action to recover attorney’s fees. The writ of error is brought by plaintiff in error, Larson, from a judgment in favor of William J. Hewitt, who was plaintiff in the trial court. Hewitt is now deceased and American National Bank as administrator of his estate has been substituted as defendant in error. Defendant in error, Thunderbird Industries, Inc., also participa...
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delivered the opinion of the Court. This is an interlocutory appeal brought by the People for review of a trial court ruling which suppressed certain evidence seized pursuant to a search incident to the warrantless arrest of defendant Ronald Barnes. We affirm the trial court ruling. The defendant was charged with possession of marijuana which was found as the result of the search of his person. In...
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delivered the opinion of the Court. This is an interlocutory appeal brought by the People for review of a trial court ruling which suppressed certain evidence seized pursuant to a search incident to the warrantless arrest of defendant Ronald Barnes. We affirm the trial court ruling. The defendant was charged with possession of marijuana which was found as the result of the search of his person. In...
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*546Opinion by The parties will be referred to as they were designated in the trial court where the defendant Chapman was charged with and convicted of the theft of trading stamps from the Gold Bond Stamp Company of the value of over $100. The verdict of the jury recited, “We, the Jury, find the Defendant guilty in manner and form as charged in the information filed herein, and we fix the value of...
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*546Opinion by The parties will be referred to as they were designated in the trial court where the defendant Chapman was charged with and convicted of the theft of trading stamps from the Gold Bond Stamp Company of the value of over $100. The verdict of the jury recited, “We, the Jury, find the Defendant guilty in manner and form as charged in the information filed herein, and we fix the value of...
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Opinion by Plaintiffs in error were plaintiffs below and will be referred to as such. They are the owners of 52 acres, 39 acres of which is irrigated, of land in Jefferson County, and presently own what has been historically described or denominated as a right to 15 “inches” of water from Harriman Lake, a water storage reservoir in Jefferson County. Both parties agree this had no relationship t...
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delivered the opinion of the Court. The defendants prosecute this interlocutory appeal pursuant to C.A.R. 4.1, claiming that the trial court erred in failing to suppress evidence seized by the police while conducting a search of the defendant Lujan’s premises. On the basis of the evidence seized, the defendants were arrested and charged with possession of and conspiracy to possess narcotic...
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484 P.2d 1252 (1971) John BROWN, Plaintiff in Error, v. The WESTERN CASUALTY AND SURETY COMPANY, Defendant in Error. No. 70-642. (Supreme Court No. 24220.) Colorado Court of Appeals, Div. II. February 16, 1971. Rehearing Denied March 9, 1971. Certiorari Denied May 24, 1971. *1253 Herbert A. Shatz, Denver, for plaintiff in error. Duane O. Littell, Denver, for defendant in error. Not Selected for O...
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484 P.2d 1257 (1971) INTERSTATE FIRE & CASUALTY CO., an Illinois corporation, Plaintiff in Error, v. T. Mitchell BURNS, d/b/a T. Mitchell Burns Insurance Agency, Defendant in Error. No. 70-527. (Supreme Court No. 24105.) Colorado Court of Appeals, Div. I. March 9, 1971. Rehearing Denied April 6, 1971. Certiorari Denied June 1, 1971. *1258 Yegge, Hall & Evans, James C. Perrill, Denver, for...
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OPINION Plaintiffs brought this suit for partition of certain lands under the New Mexico Partition Statutes, §§ 22-13-1 through 22-13-8, N.M.S.A.1953. During the proceedings the trial judge appointed commissioners to report to the court on a partition plan. Their first report was not acted upon by the court, and an amended report was rejected. However, a later, amended report was filed, a heari...
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OPINION The District Court of Eddy County, New Mexico, denied a motion for post-conviction relief without a hearing. Defendant appeals. The defendant contends that the trial court erred in denying his motion for post-conviction relief, based on (1) a “shotgun” instruction, (2) inadequate counsel (no objection was raised in the original trial of this case, cited as State v. Till, 78 N.M. 255, 430 P...
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OPINION This was an action in the District Court •of Sierra County on bonds and interest ■coupons issued by defendant Lakeshore City Sanitation District. John B. Speer brought the action on behalf of himself pro se and as attorney for the other three plaintiffs, James B. Speer II, as trustee, Loula Dexter and D. G. Bell. After the cause was at issue, plaintiff John Speer moved for summary judgmen...
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OPINION Petitioners appeal from a judgment discharging an alternative writ of mandamus. We affirm. The validity of the consolidation'of Belen Municipal School District No. 2, hereinafter called Belen, and La Joya Rural Independent School District No. 5, hereinafter called La Joya, is questioned in these proceedings. Petitioners rely upon three points for reversal. The first point is their claim ...
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Original Proceeding in Certiorari Ordered that petition for writ of certiot ari be and the same is hereby denied. Further ordered that the record in Court of Appeals Cause No. 532, 82 N.M. 569, 484 P.2d 1279, be and the same is hereby returned to the Clerk of the Court of Appeals....
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Original Proceeding in Certiorari. Ordered that application for writ of certiorari be and the same is hereby denied. Further ordered that the record in Court of Appeals Cause No. 608, 82 N.M. 578, 484 P.2d 1288 be and the same is hereby returned to the Clerk of the Court of Appeals....
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Original Proceeding in Certiorari Ordered that petition for writ of certiorari be and the same is hereby denied. Further ordered that the record in Court of Appeals Cause No. 616, 82 N.M. 583, 484 P.2d 1293 be and the same is hereby returned to the Clerk of the Court of Appeals....
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484 P.2d 1273 (1971) 82 N.M. 503 STATE of New Mexico, Plaintiff-Appellee, v. Michael B. ODEN, Defendant-appellant. No. 631. Court of Appeals of New Mexico. April 23, 1971. Dick A. Blenden, Rosenberg & Blenden, Carlsbad, for defendant-appellant. David L. Norvell, Atty. Gen., Santa Fe, Thomas Patrick Whelan, Jr., Asst. Atty. Gen., for plaintiff-appellee. OPINION WOOD, Judge. Convicted of disor...
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OPINION Convicted of disorderly conduct, § 40A-20-1, N.M.S.A.1953 (Repl. Vol. 6, Supp. 1969), defendant appeals. The dispositive issue is the sufficiency of the evidence to sustain the conviction. The applicable portion of § 40A-20-1, supra, reads: “Disorderly conduct consists of: “A. engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct whi...
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OPINION In this non-jury automobile accident case, defendants admitted liability to plaintiff “for injuries sustained.” Defendants’ appeal is directed to damage questions. They claim: (1) the doctor’s testimony should have been stricken; (2) the cause of plaintiff’s condition at the time of trial was not established; (3) the extent of an aggravation of a pre-existing condition was not pro...
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OPINION Defendant appeals his conviction of an aggravated battery that inflicted great bodily harm on the victim. Section 40A-3-5, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969). Defendant contends: (1) the statute is unconstitutionally vague; (2) there is no evidence that defendant’s acts caused great bodily harm; (3) the court erred in failing to instruct the jury that “great bodily harm” had to be of...
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OPINION Convicted of robbery and aggravated battery, defendant appeals. Sections 40A-16-2, N.M.S.A.1953 (Repl.Vol. 6) and 40A-3-5, N.M.S.A.1953 (Repl.Vol. 6, Supp. 1969). The issues concern: (1) change of venue; (2) various evidentiary matters; and (3) a trial amendment to the aggravated battery charge. Change of venue. Defendant moved for a change of venue claiming that because of public e...
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OPINION Appealing his conviction of burglary, § 40A-16-3, N.M.S.A.1953 (Repl.Vol. 6), defendant raises six issues. They are: (1) continuance; (2) sufficiency of the evidence; (3) expert testimony; (4) advice of rights; (5) a refused instruction; and (6) verdict based on passion and prejudice. Contimiance. Defendant was arrested February 10, 1969. An attorney was appointed to represent him t...
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OPINION Defendant appeals his conviction of rape and aggravated assault. Sections 40A-9-2 and 40A-3-2, N.M.S.A.1953 (Repl.Vol. 6). The issue involves the victim’s out-of-court identification of defendant from a photograph. The claim is that this extra-judicial identification was unnecessarily suggestive and conducive to irreparable mistaken identification. See State v. Torres, 81 N.M. 521, 469 ...
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OPINION This appeal is from an order granting a new trial entered upon a timely motion filed by plaintiff following a judgment upon a jury verdict in defendant’s favor. Plaintiff has moved to dismiss the appeal upon the ground that the order' granting a new trial is not appealable. We so hold, and dismiss the appeal. Our Rules of Civil Procedure relating to a party’s motion for a new trial, materi...
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OPINION Raymond Sanchez was convicted of burglary and larceny. Avelino Sanchez was convicted of burglary, larceny and unlawfully taking a vehicle. Sections 40A-16-3, N.M.S.A.1953 (Repl.Vol. 6), 40A-16-1, N. M.S.A.1953 (Repl.Vol. 6, Supp.1969), and 64-9-4, N.M.S.A.1953 (Repl.Vol. 9, pt. 2). Both defendants appeal. The issues involve: (1) probable cause for arrest and (2) sufficiency of the evidence...
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delivered the Opinion of the Court. This is an appeal from an order entered on findings of fact and conclusions of law by the district judge of the Thirteenth Judicial District, Yellowstone County. The order requires defendant to make certain payments to plaintiff, to make child support payments, and pay attorney fees. Findings of fact and conclusions of law were made. No exceptions were taken. A ...
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This is an appeal by General Telephone Company of the Southwest from an order of the Corporation Commission denying a requested rate increase. General operates 53 telephone exchanges in relatively small municipalities in Oklahoma. In 1968, with the acquisition of Southwestern States Telephone Company, General approximately doubled in size. Its present rates in Oklahoma were approved by the...
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Is “civil death” a legal defense to a personal injury action? Title 21 O.S., 1961, Section 66 provides: “Civil death. “A person sentenced to imprisonment in the state prison for life, is thereby deemed civilly dead.” Plaintiff, a service station employee, alleges that while he was checking the oil in the power steering in the defendant’s automobile, the defendant ...
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Presented for review is an order of the State Industrial Court sitting en banc, vacating an order of the trial judge denying the respondent, Olin Dewey Marlar, claimant below, workmen’s compensation benefits and awarding him benefits against both petitioners. Primary liability was imposed against Sparkle Cleaners as the employer of claimant, and secondary liability was imposed against Premier Home...
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OPINION Plaintiff in error, Herman Donald Smith, hereafter referred to as defendant, was convicted in District Court of Tulsa County, Case No. 23,534, with the crime of Shooting With Intent to Injure. He was found guilty by the jury and on February 18, 1969, was sentenced to serve not less than one, nor more than three years under the custody and control of the State Department of Corrections. Fro...
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George Arthur Briggs and Larry Joe Humphrey, hereinafter referred to as Defendant Briggs and Defendant Humphrey, were charged, tried and convicted in the District Court of Tulsa County of Attempted Burglary in the Second Degree, their punishment was fixed at three years imprisonment and from said judgment and sentence, a timely appeal has been perfected to this.Gourt. Briefly stated the evidenc...
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MEMORANDUM OPINION Plaintiff in error, Willie Gee Mayhan, hereinafter referred to as defendant, was charged by information with the crime of Assault with a Deadly Weapon with Intent to Kill, in the District Court of Oklahoma County, Case No. CRF-69-2926. Defendant was tried before a jury which found him guilty and fixed punishment at 20 years imprisonment. Judgment and sentence was imposed on May ...
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This is an original proceeding in which petitioner, Frank Naceo Martin, seeks a writ of habeas corpus for his immediate release from the Oklahoma State Penitentiary, where he is presently confined on a nine and one-half (9,½) year sentence for first degree manslaughter from Oklahoma County, Case No. 32,669. On February 6, 1952, the petitioner entered a plea of guilty in the District Court of Ok...
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David Ronald Dayton, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Texas County, Oklahoma of the offense of Burglary in the Second Degree, his punishment was fixed at two (2) years imprisonment and from said Judgment and Sentence a timely appeal has been perfected to this Court. Briefly stated the evidence at the trial adduced that sometime between...
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Richard Andrew Dooley, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County for the offense of Larceny of an Automobile, After Former Conviction of a Felony; his punishment was fixed at ten years imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court. Briefly stated, the evidence at the trial add...
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OPINION Plaintiff in error, Delbert Eugene Watkins, hereafter referred to as defendant, was convicted on January 22, 1969, in Case No. CRF 69-73, in the District Court of Tulsa County, for the crime of Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor, Second Offense. Prosecution of defendant was commenced under the provisions of 47 O.S.Supp.1967, § 11-902; which provides fo...
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Felix Adams, hereinafter referred to as defendant, was found guilty at a non-jury trial in the District Court of Tulsa County of the offense of Burglary in the Second Degree, his punishment was fixed at three years imprisonment and from said judgment and sentence a timely appeal has been perfected to this Court. Briefly stated the parties at the trial stipulated that if Andy Anderson was called...
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R. H. “Dick” Welcher and Esther Welcher were charged, tried and convicted in the District Court of Tulsa County, for the offense of Obtaining Property by Trick or Deception; their punishment was set at fines of $50.00 each, and from said judgments and sentences, a timely appeal has been perfected to this Court. The evidence adduced on behalf of the State of Oklahoma consisted first of testimony of...
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Elwoodrow Wilson Brooks, hereinafter referred to as defendant, entered a plea of guilty in the District Court of Oklahoma County to the offense of Larceny of an Automobile, and received a four year suspended sentence on October 4, 1968, said suspended sentence was ordered revoked on July 8, 1970, and from said Order of Revocation, a timely appeal has been perfected to this Court. The sole propo...
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OPINION Gene Leroy Hart, plaintiff in error, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County, for the crime of First Degree Burglary After Former Conviction of a Felony. Judgment and sentence was imposed on September 26, 1969, when he was sentenced to serve a term of thirty (30) to ninety (90) years in the State Penitentiary. His Motion ...
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Plaintiffs in error, Bernard Clarence Lawson, Jr., and Dee Loren Pierce, hereinafter referred to as defendants, were jointly convicted by jury verdict of Illegal Possession of Narcotics (codiene) in the District Court of Oklahoma County, Case No. CRF-69-837, and each sentenced on September 19, 1969 to eight (8) years imprisonment (Appeal No. A-15,593). Defendants were also jointly convicted in th...
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■ Jimmy Paul Norton a/k/a Jimmy Ray Norton, hereinafter referred to as defendant was charged, tried and convicted in the District Court of Oklahoma County of the offense of Assault With Intent To Commit Rape; his punishment was fixed at five (5) years imprisonment and from said Judgment and Sentence a timely appeal has been perfected to this Court. Briefly stated the evidence at the trial adduced ...
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Opinion This is an original petition for a writ of mandate to compel the Therapeutic Abortion Committee of Los Angeles County-USC Medical Center to consider on its merits petitioner Carlos’ application for a therapeutic abortion without the consent of her parents. We construe for the first time Civil Code section 34.51 to determine whether it emancipates minors for the purpose of obtaining therap...
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Opinion We treat the petition in the above-entitled proceeding as an application to recall the remittitur in People v. Pratt, 2 Crim. 9718. The proceeding is transferred to the Court of Appeal, Second District, Division Four, with directions to recall its remittitur, vacate its judgment to the .extent it affirms the judgment in Los Angeles County Superior Court case No. 238805, and redetermine pet...
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*51 Opinion Following trial by jury, defendant was convicted of possessing a restricted dangerous drug for the purpose of sale, as proscribed by Health and Safety Code section 11911. 1 On appeal, defendant urges reversal on the grounds that there was no substantial evidence to support the verdict, that an instruction on specific intent should have been given, and that he was denied effectiv...
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Opinion We treat the petition as a motion to recall the remittitur in People v. Wein, 50 Cal.2d 383 [326 P.2d 457]. The motion is granted. The remittitur issued on June 27, 1958, is recalled. The judgment is vacated on counts 1, 5, 9, 14, 17, 18, 21, and is affirmed on all other counts. (People v. Daniels, 71 Cal.2d 1119, 1140 [80 Cal.Rptr. 897, 459 P.2d 225]; People v. Mutch, 4 Cal.3d 389 [93 Cal...
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4 Cal.3d 945 (1971) 484 P.2d 1361 95 Cal. Rptr. 17 ORANGE COUNTY AIR POLLUTION CONTROL DISTRICT, Petitioner, v. PUBLIC UTILITIES COMMISSION, Respondent; SOUTHERN CALIFORNIA EDISON COMPANY, Real Party in Interest. Docket No. S.F. 22766. Supreme Court of California. In Bank. May 26, 1971. *947 COUNSEL Adrian Kuyper, County Counsel, John F. Powell, Deputy County Counsel, for Petitioner. John D. Maha...
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Opinion We are presented in this case with an issue of some importance to urban California: Whether the authority conferred upon the Public Utilities Commission to grant permission to construct and operate privately owned electric generating units supersedes, in cases of conflict, the authority conferred upon an air pollution control district to condition construction of such units upon complianc...
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5 Cal.3d 35 (1971) 484 P.2d 1367 95 Cal. Rptr. 23 THE PEOPLE, Plaintiff and Respondent, v. KLAUS RIZER, Defendant and Appellant. Docket No. Crim. 15047. Supreme Court of California. In Bank. May 27, 1971. *36 COUNSEL Albert D. Silverman, under appointment by the Supreme Court, for Defendant and Appellant. Thomas C. Lynch and Evelle J. Younger, Attorneys General, William E. James, Assistant Attorn...
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Opinion In 1959 Doyle Alva Terry was convicted on two counts charging lewd acts upon Richard and Timothy respectively, each a child under 14 (Pen. Code, § 288) and one count of infamous crime against nature committed against Timothy (Pen. Code, § 286). The judgment was affirmed. (People v. Terry (1960) 180 Cal.App.2d 48 [4 Cal.Rptr. 597] [hg. den., cert. den. 364 U.S. 941 (5 L.Ed.2d 372, 81...
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Opinion Plaintiff Larry Landau appeals from a judgment dismissing his action against respondents Mary Salam and Charge A Car, Inc., entered after respondents’ demurrer for misjoinder of parties was sustained without leave to amend. 1 Plaintiff claims to have been injured as the result of both the negligent driving of an automobile on April 28, 1968, and the negligent maintenanc...
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Opinion Charles J. Rounds Co. (hereafter employer) appeals from the judgment of the trial court, which dismissed a complaint, charging breach of a collective bargaining agreement, on the grounds that the dispute which was the subject of the suit was covered by an arbitration clause in the agreement. Employer is a general contractor operating in the Los Angeles area as a member of the...
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OPINION The principal issue presented by this appeal is whether, in a civil action, a poll of the jury may be demanded by a party as a matter of right, or whether the request for a jury poll is to be treated as discretionary. The action was one seeking recovery of damages for wrongful death. Judgment on the verdict was rendered on May 28, 1970, for the defendant, and, in addition to the general ve...
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