Opinion
No. 9734.
May 7, 1963.
Appeal from the Third District Court, Salt Lake County, Aldon J. Anderson, J.
Virgil Lee Wood and Robert Colvin, pro se, Mitsunaga Ross, Salt Lake City, for appellants.
A. Pratt Kesler, Atty. Gen., Stephen L. Johnston, Asst. Atty. Gen., Salt Lake City, for respondent.
Appeal from burglary and grand larceny convictions. Remanded with instructions to consider and act on pending motions for new trial.
At the time appeals were taken there were two motions for new trial pending. The appeals, therefore, were premature, and there was no indication in the record reflecting any waiver of rights thereunder.
Petersen v. Ohio Copper, 71 Utah 444, 266 P. 1050 (1928), where it was concluded that "the judgment becomes final when the motion for a new trial is overruled" and "it follows as a necessary corollary that an appeal taken while such motion is pending is premature." Further, that "If it should be contended that the taking of the appeal was in effect a waiver or abandonment of the motion for a new trial, it is doubtful if such contention would be sound."
Defendants urge error in submission of verdicts, that the verdicts were contrary to the evidence and the presumption of innocence, and that the court and prosecutor prejudicially abused defendants' rights by their conduct. The record does not reflect any such abuse, and the only point on appeal appearing to have any merit is that we decide here anent prematurity of appeal.
McDONOUGH, CALLISTER, CROCKETT, and WADE, JJ., concur.