State v. Torgerson

286 P.2d 800, 4 Utah 2d 52, 1955 Utah LEXIS 176

• Court: Utah Supreme Court
• Decided: August 1, 1955
• Docket: 8330
• Status: Published

Opinions

WADE, Justice.

This is an appeal from a conviction of attempted burglary. Appellant was apprehended by two police officers about 11 p. m. on April 25, 1954, after they saw him standing in a suspicious manner facing the doors of a grocery market which was closed for the night. Appellant apparently observed the approach of the police ambulance in which the officers were riding because he scooted around a corner of the market into its parking lot and was peering around the corner of the store when the officers arrived. When he was arrested he was holding a crowbar. The doors of the market are made of steel and are the swinging type which meet in the center. When these doors were examined later there were found dent marks between the doors just below the lock which could have been made by this particular crowbar. These dent marks were not there before the night of appellant’s arrest. After appellant was jailed, officers went back to the market and in an alley leading to its parking lot found a 1941 dark blue Plymouth sedan registered in the name of appellant’s wife in which two men were asleep. The state further introduced evidence that this same car had been parked in the parking lot of another market about 10:30 p. m. when a man, not the appellant, was seen to go towards appellant’s car after having been observed breaking the glass in the door of the market which was located about 8 blocks west of the one at which appellant was apprehended. Although one of the arresting officers testified that he had not noticed anything about appellant that night which would lead him to believe that appellant was drunk, nevertheless, appellant was charged with and pleaded guilty to drunkenness the next day in the City Court. Appellant testified that he had drunk large quantities of intoxicating liquors that day and night and could not remember what happened after eight o’clock that night and was not aware of driving or of doing anything after that time until he woke up in jail the next morning.

It is appellant’s contention that evidence about his car being in the vicinity when an offense was committed by one other than appellant was irrelevant and immaterial and therefore its admission was prejudicial error and that as a matter of law there was insufficient evidence of appellant’s intent to commit the crime of which he was convicted.

In support of his contention that evidence of the commission of another offense was prejudicial error appellant cites a number of cases which hold that the commission of another offense by defendant is not admissible against him unless it comes within the exception to the rule that proof of such an offense is admissible to show intent, motive, etc. The rule on that subject in this state is that such evidence which has probative value to prove a material issue is admissible unless offered only to show evil or criminal disposition. However, such evidence is admissible if it tends to prove that the defendant had the necessary intent.¹ Under neither of these rules was this evidence admissible. This evidence does not tend to prove that defendant intended to commit a burglary. The other crime which was proved merely showed that a man, not appellant, broke the glass in the door of a grocery store and then fled toward appellant’s car. This has no tendency to prove an intention to commit burglary for there is no evidence that the person intended or attempted to enter the other store. Also this evidence does not tend to show another offense committed by appellant. The appellant was not the man seen breaking the glass in the other store and there is no evidence of a conspiracy between that person and appellant. The only connection of that offense with the appellant was the fact that the other person ran toward the appellant’s car and that after appellant’s arrest that car with two men asleep in it was found parked near the parking lot of the store which defendant is accused of attempting to burglarize. Su,ch evidence does not show an intention to burglarize the other store nor connect the defendant with such other offense and was inadmissible. Since some jurors well might have had a reasonable doubt which this evidence dispelled we cannot hold that this error was not prejudicial.

We find no merit to appellant’s contention that the evidence is insufficient to sustain á finding that he intended to commit burglary.

Judgment is reversed with directions to grant a new trial.

McDonough, c. j., concurs. WORTHEN, J., concurs in the result.

1 . State v. Nemier, 106 Utah 307, 148 P.2d 327: State v. Scott, 111 Utah 9, 175 P.2d 1016, and State v. Prettyman, 113 Utah 36, 191 P.2d 142.