¶1 (concurring).
¶2 I concur in the order reversing the judgment. Certainly under the record before us the mere admission by defendant that the gun in question was his gun would not, with the other evidence adduced, support the conviction. The fact is that the burglary itself was not proved by any competent evidence. The astounding fact is that no one testified to having any information acquired by his own investigation or observation that the alleged crime was perpeterated. All I can find in the record to establish that essential fact I shall briefly set out:
¶3 Paugh, co-defendant with Nichols, pleaded guilty to the charge. Clearly his plea would not constitute an admission by appellant that a burglary had been committed. If not, then it must have been established here to the satisfaction of the jury by the testimony of witnesses who themselves knew nothing about it. The proprietor of the place allegedly burglarized was called as a witness. He identified the gun as his. However, upon being asked to describe the appearance of the premises on the day following the alleged entry he stated that he did not know because he had been out of the state from a time about three months prior to such alleged entry until the month following such assumed event. He had left one Olson in charge of the business when he went away. At the time of his departure the gun was on a shelf on the premises.
¶4*115 At the time of the trial, Olson was on a fishing trip. However, the State was permitted, over the objection of defendant, to adduce from a police officer the fact that Olson had told him that a window had been broken on the night of Feb. 21 and that a gun and some cigarettes were stolen. The police officer who received a telephone call from someone reporting a burglary at the premises in question was called to testify. The telephone call was to the effect that a window of such premises had been broken and a gun and some cigarettes stolen therefrom. The witness was permitted to read to the jury his record of such telephone call. He also stated that he went to the place in question and found the window broken. Whether or not it was in that condition the day before, or for the preceding six months, does not appear from his testimony.
¶5 The foregoing is all the evidence in the record that a burglary of the place had been committed.
¶6 The gravity of having a subpoena served on a devotee of the art of angling on the eve of his departure for a limpid mountain stream; the hazard of planting in the mind of a staunch supporter of law and order the seed of militant anarchy by the act of the sovereign in summoning him from the verdant bank of his favorite fishing hole, to bear testimony to an assault against the peace and dignity of the State; may well be conceded. Nevertheless, even in the face of such a suppositious manifestation of sovereign power curbing the precious liberty of one of its citizens, we are advised by the Constitution and statutes of this State and trial courts have been admonished — as, indeed, have state prosecutors— by prior opinions of this court, that one accused of crime is possessed of certain rights. He has a right to be confronted by the witnesses against him. Art. I, Sec. 12, Const. State of Utah; 105-1-8, U. C. A. 1943. He is presumed innocent until the contrary is proved beyond a reasonable doubt. 105-32-4, U. C. A. 1943.
¶7 If we exclude, then, the evidence,, admission of which was in violation of the rights of the accused, the following facts remain: At premises located at 2702 Wall Avenue, Ogden, *116 Utah, euphemistically denominated “Sloppy Joes,” a window was found broken. The aperture was of sufficient size to permit ingress or egress by a man. When it was broken, how long it had been in that condition, or who broke it, does not appear. Within the building some three months prior to Feb. 22 there was a gun. Whether it was there just prior to the time the window was broken, the evidence does not advise us. Some time subsequent to Feb. 22 the gun was found in a suitcase in a room occupied by three people, one of whom was the accused. The latter who apparently did not own the suitcase, said the gun was his. From the foregoing the jury found that the accused on the night of February 21, 1943, broke into and entered “Sloppy Joes” with intent to steal. Under the decisions of this court as to the burden of proof in criminal cases, it may be said categorically and without a shadow of a doubt that such finding cannot be sustained.