State v. Callahan

488 P.2d 1048, 26 Utah 2d 304, 1971 Utah LEXIS 712

• Court: Utah Supreme Court
• Decided: September 24, 1971
• Docket: 12488
• Status: Published

Opinions

CALLISTER, Chief Justice.

The State appeals from a criminal prosecution, tried before the court, wherein defendant was found not guilty.

Defendant was tried for a violation of Sec. 76-28-54, U.C.A.1953, an indictable misdemeanor. Specifically, he was charged with wilfully and unlawfully resisting a public officer in discharging or attempting to discharge the duty of his office in making a lawful arrest.

In a memorandum decision, the trial court determined:

I therefore hold that the section under which the officer was attempting to make an arrest is a nullity and therefore an unlawful arrest, which the defendant may resist; and the defendant is found not guilty for that reason.

On appeal, the State vigorously urges two points: First, the legislature has made a constitutional delegation of authority to the Board of State Parks and Recreation to enact appropriate regulations governing the use of the state park system. Second, the trial court erred in holding that the defendant had a right to resist arrest.

Sec. 77-3SM-, U.C.A.19S3, provides that an appeal may be taken by the State:

(1) From a judgment of dismissal in favor of the defendant upon a motion to quash the information or indictment.

(2) From an order arresting judgment.

(3) From an order made after judgment affecting the substantial rights of the state.

(4) From an order of the court directing the jury to find for the defendant.

The State has not predicated its appeal upon any of the foregoing grounds.¹ The appeal is, therefore, dismissed.

TUCKETT and HENRIOD, JJ„ concur.

1 . Hurtman v. Weggeland, 19 Utah 2d 229, 230, 429 P.2d 978 (1967).