Arnold v. State
| Decision Date | 04 January 1957 |
| Docket Number | No. 2750,2750 |
| Citation | 76 Wyo. 445,65 A.L.R.2d 839,306 P.2d 368 |
| Parties | , 65 A.L.R.2d 839 Harry ARNOLD, Albert Oleffe, Roy Price, Norman D. Hodges, John E. Martin, and Robert Jeffrey, Plaintiffs in Error, v. The STATE of Wyoming, Defendant in Error. |
| Court | Wyoming Supreme Court |
Goppert & Fitzstephens, Cody, for plaintiff in error.
George F. Guy, Atty. Gen., and Arthur F. Fisher, Asst. Atty. Gen., for defendant in error.
At the time of all occurrences, with which these proceedings are concerned, the appellants were serving sentences in the Wyoming State Penitentiary at Rawlins, Wyoming, which had been previously imposed upon them for the commission of crimes and for which they had theretofore been regularly convicted, sentenced and committed to that institution. Upon an information filed in the district court of Garbon County, Wyoming, against Harry Arnold, Albert Oleffe, Roy Price, Norman D. Hodges, John E. Martin and Robert Jeffrey, charging them jointly with the crime of felonious assault with intent to commit murder in the second degree, all defendants were tried together and the defendants Arnold, Oleffe and Hodges were convicted by the jury of the crime of assault and battery, and defendants Price, Martin and Jeffrey were acquitted. Thereupon, the court pronounced its 'Judgment and Commitment', in which it was ordered, adjudged and decreed that Price, Martin and Jeffrey 'be and they hereby are acquitted of the charges laid herein', and defendants Arnold, Oleffe and Hodges were respectively adjudged guilty of the crime of assault and battery and were respectively sentenced 'to pay a fine of $100 each, and costs of prosecution taxed at $904.70, and that they, and each of them respectively be and they hereby are remanded to the custody of the Sheriff of Carbon County, Wyoming who shall forthwith return said Defendants together with said Defendants so acquitted into the custody of the Warden of the Wyoming State Penitentiary situated at or near the City of Rawlins, in the County of Carbon and State of Wyoming wherein said Defendants shall be so held and detained until they and each of them shall have completed serving their respective sentences upon convictions heretofore imposed upon them respectively by Courts of competent jurisdiction in the State of Wyoming, and that upon the conclusion of the serving of their respective sentences by the Defendants Harry Arnold, Albert Oleffe and Norman D. Hodges, they and each of them respectively shall be delivered by the Warden of the Wyoming State Penitentiary to the Sheriff of Carbon County, Wyoming upon the request of the latter therefor, whereupon said respective Defendants Harry Arnold, Albert Oleffe and Norman D. Hodges shall thereupon be respectively confined not less than 5 months and 25 days nor more than 6 months in the jail of the County of Carbon, and State of Wyoming.'
An exception to this judgment and commitment being saved by the convicted defendants, they moved the court to retax costs and to amend and vacate the 'Judgment and Commitment' because (1) there was no authority to impose an indefinite sentence upon conviction for misdemeanors; (2) the costs were improperly and illegally taxed; (3) the costs were taxed against each of the convicted defendants without proviso that if such costs were paid or served by one or more of those defendants, the costs would be released as to the other or others; (4) the execution of the sentences of confinement were deferred and delayed until after the completion of their serving sentences in the Wyoming State Penitentiary at or near the city of Rawlins, Wyoming, which had theretofore been imposed following their conviction and sentencing for other crimes.
Although the jury found Price, Martin and Jeffrey not guilty of the crime charged and the judgment and commitment expressly acquitted them (to which judgment they took no exception), they also filed their joint motion to amend the judgment and commitment.
It was stipulated that a certificate of the clerk of the district court, which appears as being filed in the action, 'be received as evidence of the facts set forth and detailed therein on any Motion to retax costs or to amend the Judgment and Commitment' and that such facts are true. This certificate contains a statement of the $904.70 assessed as costs by the court's judgment as follows:
Witness fee paid Elaine McGough $5.00
Witness fee paid Ben Reeves 52.60
Service two Court Bailiffs @ $5.00 per day for 4 1/2 days 46.00
Mileage and per diem paid to all jurors on jury panel and for trial jurors who served on petit jury during the trial of this criminal action as per detailed list attached marked Exhibit 'A' 801.10
The certificate also had attached an exhibit listing the names of all jurors who attended during the empaneling of the jury and at the trial of the defendants, together with detail of days served, the per diem, the mileage and totals, the overall of which amounted to the sum of $801.10.
The motion of Price, Martin and Jeffrey was overruled and exception allowed.
The motion of the convicted defendants was granted as to its first ground, and the judgment and commitment was corrected and modified by what professed to be an order nunc pro tunc. This order deleted from the original judgment and commitment the words which made the term of imprisonment indefinite and, by such deletion, left the sentence of imprisonment to be for the definite period of six months. The balance of the motion was denied and exception was allowed.
All six of the defendants have brought their complaints to this court by a single petition in error and have accompanied the record filed herein with a single bill of exceptions, which has been properly allowed and signed by the presiding judge.
The state has filed its motion to dismiss this proceeding because there is but one bill of exceptions, rather than a separate bill of exceptions for each of the petitioners in error, and asserts this failure is jurisdictional and fatal to the appeal. In support of its position the state has submitted several cases from Georgia and one from Pennsylvania. See Western Assurance Co. v. Way, 1896, 98 Ga. 746, 27 S.E. 167; Askew v. Powell, 1923, 30 Ga.App. 244, 117 S.E. 769; Fillingame v. State, 1921, 27 Ga.App. 764, 109 S.E. 916; Holtzendorf v. State, 1949, 78 Ga.App. 801, 52 S.E.2d 624; Fortson v. State, 1932, 45 Ga.App. 218, 164 S.E. 90; Commonwealth v. Blose, 1947, 160 Pa.Super. 165, 50 A.2d 742. It is claimed these cases hold that a separate bill of exceptions must be provided for each petitioner in error. Aside from the fact that in the cited cases there were two or more separate and distinct actions which had merely been consolidated for trial, whereas we here have several defendants who were jointly charged with the commission of the same identical crimes and who were all tried together, we are not disposed to follow a ruling which could serve no good purpose and would result in encumbering the record with six copies of an identical bill of exceptions. We also take notice that counsel for the six appellants has filed herein a dismissal of the appeal taken by two of the three convicted defendants against whom the judgment and commitment of the court was imposed.
The appeal of the three acquitted defendants is based in their claim that the judgment of the court should have decreed that they be discharged. The contention is without merit, if for no other reason than that where there is a verdict of not guilty, it is unnecessary that there be a formal judgment of acquittal, since the record and the case against such acquitted defendants ends with the verdict of acquittal. See 24 C.J.S., Criminal Law, § 1558, p. 19. It was said in Mills v. McCoy, 4 Cow., N.Y., 406, 410:
As to the appeal of the three acquitted defendants, the judgment of the lower court is therefore now affirmed.
This leaves for our consideration the single appeal of the defendant Hodges.
This court has repeatedly announced that the function of a bill of exceptions is to bring before this court proceedings or evidence which do not otherwise appear in the record. Underwood v. David, 9 Wyo. 178, 180, 61 P. 1012; Grover Irrigation & Land Co. v. Lovella Ditch, R. & Irr. Co., 21 Wyo. 204, 221, 131 P. 43, 46, L.R.A.1916C, 1275; Middleton v. State, 34 Wyo. 102, 110, 241 P. 715, 718; In re Austin's Estate, 35 Wyo. 176, 180, 246 P. 459.
There would be little justification for our now granting the defendant in error's motion to dismiss this proceeding as the bill of exceptions in the record is sufficient to enable this court to examine into the alleged errors which impel Hodges to seek relief, namely, (1) imposing of an indeterminate sentence, (2) re-sentencing of appellant after end of the term, (3) deferring execution of sentence, (4) overtaxing of costs, and (5) failure to make proper proviso concerning satisfaction of costs. The motion of the defendant in error to dismiss the appeal for failure to file separate bills of exception is therefore denied.
There has also been filed herein an application by plaintiffs in error, Arnold, Oleffe and Hodges, the convicted appellants, for an order to suspend sentence and fix bond. This motion now remains as the motion of Hodges only and will be disposed of by our decision upon the merits of his appeal.
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