Jeffrey Lynn Hodges seeks to reverse his convictions by a jury of the crimes of robbery and assault with a deadly weapon committed at the Egyptian Theater in Ogden on the night of May 12, 1972. His contention is that the prosecuting attorney improperly asked questions concerning his involvement in another crime which so prejudiced the jury against him that he was deprived of a fair trial.
On the evening mentioned a man (later identified as the defendant) approached the cashier's cage of the theater, pulled a pistol out of a sack and demanded the money. The cashier, Carolyn Todd, complied with the demand and turned over about $138. As the man fled, the assistant manager, Mr. Gary Wall, came out of the theater and gave chase. He followed the man through a department store and into an alley, when he turned and fired the pistol at Mr. Wall. Quite understandably, this discouraged Mr. Wall from the pursuit.
Ronald Greenwood, an off-duty police officer who had observed the two men running and heard the shot, came to his assistance. The officer saw the defendant get into a "small white car" and drive away. Pursuant to communication with, and the aid of other police officers, the defendant was within a few minutes apprehended in that car. He had therein what appeared to be the same money, in specie and amount, that had been taken from the theater, and the gun (a .22 pistol) in a sack. He was arrested and taken back to the theater where he was identified by Mr. Wall and Miss Todd.
The defendant testified in his own behalf. It was in effect an elsewhere alibi: that he had been with friends at a local bar at the time of the incident. Further: that he had loaned his car, (the little white car) to a friend who had it during that time. In cross-examining him the prosecutor asked him about his using the gun before. The particular question about which the defendant complains was:
Defense counsel stated:
The court sustained the objection. However, on the basis of the foregoing incident,
The asking of the question about which the defendant complains, and to which the trial court very properly sustained the objection, is certainly not to be commended; and we are made to wonder why the prosecuting attorney would ask it. Nevertheless, the processes of justice should not be distorted simply for the purpose of censuring a mistake.
The defendant cites and places reliance on the cases of State v. Dickson,
In the absence of the appearance of something persuasive to the contrary, we assume that the jurors were conscientious in performing to their duty, and that they followed the instructions of the court. In addition to making the correct ruling as above stated, the trial judge followed what we think is the well advised policy of not overemphasizing the matter by discussing it in the presence of the jury. He allowed the motion to be made, and stated his ruling thereon, in chambers. Then he included the following instruction to the jury:
Upon the basis of the circumstances as shown by this record as herein recounted, we are not persuaded that the trial court was mistaken in concluding that there was no sufficient basis for believing that the defendant had been deprived of a
Affirmed. No costs awarded.
CALLISTER, C.J., and HENRIOD, ELLETT and TUCKETT, JJ., concur.