State v. Ferguson , 74 Utah 263 ( 1929 )

The appellant, Frank Ferguson, was convicted of the crime of burglary in the second degree and sentenced to serve an indeterminate term in the state prison. He appeals.

The appellant has assigned nine errors upon which he relies for a reversal of the judgment, but only three are discussed in the appellant's brief and in his oral argument. These three only will receive attention in this opinion.

The first of the assignments with which the brief of the appellant deals relates to whether or not the court erred in overruling appellant's objection to a question propounded by the state to the witness Perry Holt, "Did you tell these defendants what Mrs. Ferguson had said?" Over the objection of appellant the witness Holt was permitted to answer said question, which he did so as follows: "It looks too bad for you fellows, you haven't had those chickens down there at all." An examination of the transcript discloses that, as a matter of fact, no objection to the said question was made at all by the appellant. The objection relied upon by the appellant was made not to the question just above stated, but to the question which followed the answer given to said above-quoted question, "Just state what you said to them?" Attorney for appellant then said, "I object to that as being incompetent, irrelevant and immaterial; stating any conversation that Mrs. Ferguson had with this witness not in the defendant's presence." The objection was overruled and exception taken. The witness answered, "I asked Mrs. Ferguson if they had had those chickens there and she said, ``No; they hadn't any chickens there.'" Counsel for appellant objected and asked to have the answer stricken. The court then said: "It may go out, as to what Mrs. Ferguson told the witness." Counsel for the state then propounded the following question: "Just what you told them, not what she said?" The witness answered, "I said, ``You haven't had those chickens down there at all,' and I said, ``It looks too bad for you fellows.'"

It will thus appear that the questions upon which appellant bases his assignment of error No. 3 were not objected to at all and no exceptions taken. The objectionable answer given by the witness was ordered stricken by the court; and we find no error in the court's overruling appellant's objection to said question, since the answer elicited was ordered stricken by the court.

The second assignment of error urged by the appellant deals with the court's overruling appellant's motion for a directed verdict, and the appellant contends that the state had failed to introduce sufficient evidence to warrant a conviction. It appears to this court that an examination of the testimony in the case shows sufficient competent evidence introduced before the jury that in the light of the same the jury was justified in concluding that the appellant was guilty of the crime charged against him. As we view the testimony, the contention made that the evidence is insufficient to justify the verdict is wholly untenable. This court, on appeal from conviction, cannot weigh the evidence, and has held in effect that in the absence of legislation to the contrary, the appellate court has no right to say what quantum of evidence shall be necessary to establish a given fact or set of facts, so long as there is substantial evidence in support of such fact or facts. State v. Carter,52 Utah 305, 173 P. 459; State v. Estes, 52 Utah 572,176 P. 271; State v. Sawyer, 54 Utah 275, 182 P. 206; State v.Minousis, 64 Utah 206, 228 P. 574. The trial court, therefore, did not err in overruling appellant's motion for a directed verdict.

The last assignment urged by the appellant is assignment of error No. 9, and raises the question as to whether or not the court erred in failing to give instructions covering burglary in the third degree. The court's instruction No. 3 defines burglary in the second degree, but the court did not instruct the jury as to the crime of burglary in the third degree, which, appellant contends, is an included offense and should have been submitted to the jury by an instruction of the court.

It is a well settled rule that instructions as to lower grades of the offense charged should be given when warranted by the evidence. It is equally well settled that in a criminal prosecution error cannot be predicated on the omission of the trial court to instruct as to lesser grades of the offense charged, where there is no evidence to reduce the offense to a lesser grade. State v. Angle et al., 61 Utah 432, 215 P. 531. We fail to find by an examination of the record any evidence tending to show that the crime of burglary in the third degree was committed by the appellant, and in the light of the authorities cited in the briefs of appellant and respondent we do not think the failure of the court to instruct the jury with respect to the offense of burglary in the third degree was reversible error.

In this connection it may be further said that the record fails to show that any request was submitted to the court for an instruction submitting the issue of burglary in the third degree to the jury, and in the case of State v. McCurtain, 52 Utah 63,172 P. 481, the Supreme Court of this state held:

"The general rule is that if counsel desire to have the court charge upon a particular phase of the case, or upon a collateral issue or subject, they must offer a proper request, and if it is refused save an exception. Without this the question may not be reviewed."

This view is supported by the great weight of authority, as collated in a very recent decision of this court. State v.E.J. Sullivan (Utah) 276 P. 166.

We have also examined the assignments of error which were not argued, and to us they appear to be without merit.

We are, therefore, of the opinion that the judgment of the lower court should be affirmed. Such is the order.

CHERRY, C.J., and ELIAS HANSEN, J., concur in result.