(dissenting):
The main opinion focuses upon one asserted omission in one single instruction as the basis for overturning the verdict of a jury and the action of the trial court thereon after extended investigation and what I think was a fair trial of the issues, resulting in the conviction of the defendant. It does so in disregard of well-established rules recognized in the opinion itself.
The main opinion, correctly states that the instructions must be “viewed as a whole”;1 and that “we do not mean to imply that all of the elements of the crime charged must necessarily be contained in one instruction.” 2
It is submitted that if those rules, which the opinion itself recognizes, are fairly and properly applied, it will be seen that there is no prejudicial deficiency in the instructions; and that they were adequate to their purpose of correctly advising the jury as to the issues to be determined and the law applicable thereto.
Instruction no. 2 states that the defendant Norman Laine is charged with the crime of “theft by deception” of an automobile from the University Lincoln-Mercury dealership.
Instruction no. 6, given immediately preceding no. 7 about which complaint is made, states:
You are instructed that the law of this state as applied to the crime charged in the Information is as follows:
A person commits theft if he obtains or exercises control over property of another by deception and with a purpose to deprive him thereof.
“Purpose to deprive” within the meaning of the law and these Instructions means to have the conscious object to withhold the property permanently.
It seems to me quite inescapable that the defendant could not have been prejudiced by the failure of the court to include a statement concerning intent to permanently deprive the owner in that one particular instruction (no. 7). This is so because when instructions no. 2 and no. 6 are considered in connection therewith, the court plainly so told the jury. In sum, it is my judgment that there is no way whatsoever that the jury could fail to understand that, in order to find the defendant guilty, they must believe beyond a reasonable doubt that he intended to steal the automobile permanently. Moreover, there is no view of the evidence that could lead anyone acting fairly and reasonably thereon to any other conclusion.
The reversal of the conviction on technicalities when a person has been afforded all of the ample protections of our law, including a trial by a jury, has too long, too frequently, and with too much justification, been the subject of criticism by the public. The founders of our state were fully aware and sought to eliminate this by providing in the first edition of our state laws, Sec. 4975, R.S. 1898, now Sec. 77-42-1, U.C.A. 1953, that:
After hearing an appeal the court must give judgment without regard to errors or defects which do not affect the substantial rights of the parties. If error has been committed, it shall not be presumed to have resulted in prejudice. The court must be satisfied that it has that effect before it is warranted in reversing the judgment.
(All emphasis herein is added.)
In conformity with the salutary purpose of that statute, this Court has many times declared that a judgment should not be reversed for mere error or irregularity, but that should be done only if it appears that in the absence thereof there is a reasonable likelihood that there would have been a different result.3 I cannot believe any such *37circumstance can be found to exist here. I would affirm the judgment.
HALL, J., concurs in the opinion of CROCKETT, J.. See footnote 6, main opinion.
. I agree with the statement that it is better to do so. However, that an otherwise inadequate instruct may be cured by other instructions, see State v. Crowder, 114 Utah 202, 197 P.2d 917 (1948).
.See, e. g., State v. Neal, 1 Utah 2d 122, 262 P.2d 759 (1953); State v. Scandrett, 24 Utah 2d 202, 468 P.2d 639 (1970).