State v. Shondel , 22 Utah 2d 343 ( 1969 )

HENRIOD, Justice

(dissenting).

I dissent. Í would be constrained to concur except for the statement in the main ■opinion that “where there is- doubt or uncertainty as to which of two punishments' is applicable to an offense an accused is en-, titled to the benefit of the lesser.” I believe that the .quoted statement should ' be the law, and is the law in at least a great majority of the states other than Utah. In saying this I refer to State v. Twitchell, 8 Utah 2d 314, 333 P.2d 1075 (1959)' in which the author of the instant opinion concurred.' It seems to me that Twitchell flies in the teeth of the instant case, and unless over-' ruled, should be controlling here. It seems to me that the Twitchell case supports the conclusion arrived -at in Mr. Justice -El-lett’s dissent.