State v. Close , 28 Utah 2d 144 ( 1972 )

HENRIOD, Justice

(concurring) :

I concur because I think it was error for the court to have failed to give a perfectly legitimate instruction as to an included offense, — simple assault. The dissent emphasizes the fact that no exception was taken to such failure until after the jury had been instructed and locked up by the bailiff. This circumstance is no fault of defense counsel, who has no opportunity timely to object because trial courts, sometimes, we understand, suggest or require a stipulation from counsel that exceptions be taken after the jury has retired, and not before — in violation of Rule 51, U.R.C.P., which requires such exceptions to be taken before such retirement in civil, and I take it, also in criminal cases. Hence, an objection or exception taken after the jury’s retirement, for my money is just as valid an exception, — and more so, — than one taken before — and has as much stature on appeal in spite of the dissent’s implication that it hasn’t. The fact that the exception was made after the jury verdict seems inconsequential. This author discovered early that on occasion the jury returned before counsel could dictate an exception to a court reporter.