Crouse v. State, 3131

• Decision Date: 23 July 1963
• Docket Number: No. 3131,3131
• Citation: 384 P.2d 321
• Parties: Katherine CROUSE, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 321

384 P.2d 321

Katherine CROUSE, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 3131.

Supreme Court of Wyoming.

July 23, 1963.

Jones & Dumbrill, Newcastle, Hayes & Richards, Deadwood, S. D., for appellant.

Norman B. Gray, former Atty. Gen., W. M. Haight, former Deputy Atty. Gen., Dean W. Brothwick, present Deputy Atty. Gen., Cheyenne, and Cecil K. Hughes, County and Prosecuting Atty., Crook County, for appellee.

Before PARKER, C. J., and HARNSBERGER and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

An information in three counts was filed in the district court within 30 days of the first day of the term, charging that defendant did 'unlawfully receive, conceal or aid in the concealment of the following described personal property of the value of $25.00,' describing it, 'knowing the same to have been stolen by Gerald Cookston and Elbert Evans.' Thereupon a bench warrant issued for defendant's arrest, and defendant filed motion to quash both the information and the warrant, and filed as well a motion for change of venue. Both motions were denied.

During that term, defendant was tried by a jury, convicted, and sentenced on the first and third counts of the information, after her further motion for directed verdict had been sustained as to the second count, but denied as to the first and third counts.

Defendant appeals, contending the denial of her motions constituted error; that introduction of certain evidence was prejudicial error; that certain instructions were erroneously given and refused; and that costs of prosecution were improperly assessed. These complaints will be considered in the order stated.

The motion to quash attacked the sufficiency of the information to justify issuance of the warrant. Although the information charged defendant in the words of the statute, § 6-135, W.S.1957, and the county and prosecuting attorney signed and positively verified it, appellant insists the information was insufficient for the issuance of an arrest warrant because the prosecuting attorney could not have had any direct or personal knowledge of the facts and because no details were given showing probable cause, the information merely stating conclusions based on hearsay. This amounts to claiming that speculation may be indulged in to negate the validity of statements positively sworn to upon the solemn oath of an officer, and that evidence showing probable cause must be detailed in the information before an arrest warrant may be granted by the district court.

In consequence, appellant contends there has been such violation of Article 1, Section 4, of the Wyoming Constitution, which is almost identical with Amendment IV of the Constitution of the United States, as only the word 'affidavit' has been substituted for the words 'Oath or affirmation,' as requires reversal. Article 1, Section 4, of Wyoming's Constitution is as follows:

'The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.'

There is no merit in the speculative theory. Courts which disagree with appellant include Moss v. State, 4 Okl.Cr. 247, 111 P. 950, 953, saying:

'* * * where the information is verified in positive terms as true, it constitutes a showing of probable cause, even though it may subsequently develop that the affiant had no personal knowledge of the facts alleged. * * * The verification supports the information as the testimony taken before the grand jury supports an indictment. * * *'

Minn v. State, 5 Okl.Cr. 245, 114 P. 272, 273, overruled a motion to set aside the information on the ground that the person verifying it did not have positive knowledge of the acts set forth in the information; State v. Taylor, 75 Kan. 417, 89 P. 672, 673, said, "We are unable to perceive any good reason why a county attorney may not, if he feels warranted in so doing, verify an information * * * positively, and why such information, so verified, is not sufficient.' * * *' Additionally, the propriety of a prosecuting attorney's verifying an information positively has been noticed in State v. Miller, 95 Kan. 310, 147 P. 844; Phelps v. State, 36 Okl.Cr. 213, 253 P. 910; and this is true even though the prosecuting attorney bases his verification on information obtained from others. State v. Taylor, supra, followed in State v. Taylor, 75 Kan. 858, 89 P. 675. See 42 C.J.S. Indictments and Informations § 86c, p. 951, and, at p. 952: 'An information verified in positive terms cannot be attacked on the ground that affiant in fact had no personal knowledge of the matters verified, even when the information is the basis for the issuance of a warrant of arrest,' citing Moss v. State, supra.

Section 7-122, W.S.1957, sets forth not only the form of the information but also the verification to be used and this form was followed in the instant case. Except that it may not qualify or amend constitutional requirements, the right to prescribe the form of information and verification is said to be within legislative province. See 42 C.J.S. Indictments and Informations, § 90b, p. 960, and authorities there cited. In State v. Tobin, 31 Wyo. 355, 367, 226 P. 681, 684-685, as well as in other Wyoming decisions, it is held that a criminal information in the words of the statute is sufficient. See also 42 C.J.S. Indictments and Informations § 139c, pp. 1037-1039. Additionally, 42 C.J.S. Indictments and Informations § 115, p. 996, points out that only ultimate facts need be averred in an information and that matters of evidence as distinguished from facts essential to the description of the offense need not be averred, citing a number of state as well as federal authorities. In the same volume of 42 C.J.S. Indictments and Informations § 139e, at page 1041, the matter is amplified with the statement, 'Particulars as to manner or means, place or circumstance, need not in general be added to the statutory definition,' citing cases from California, Missouri, and Oregon in support. These decisions and authorities comport with the purpose of an information which, as stated in 42 C.J.S. Indictments and Informations § 90a, pp. 959-960, requires 'such certainty in the statement of the accusation as will identify the offense with which accused is sought to be charged, protect accused from being twice put in jeopardy for the same offense, enable accused to prepare for trial, and enable the court, on conviction, to pronounce sentence according to the right of the case' and also points out that 'no greater particularity of allegation than may be of service to accused in understanding the charge and preparing his defense is required. * * * and it is not necessary to allege matters in the nature of evidence, or to set out the means by which the crime is accomplished, unless the act is one which may be criminal or otherwise, according to the circumstances under which it is done.'

It is sufficiently clear that the positively verified information in this case set forth ultimate facts which constituted a crime under the laws of this State when it charged that appellant unlawfully received the described goods; that they were of a certain value; and that they had been stolen by named persons, the appellant knowing the goods had been so stolen.

Appellant feels Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, is in parallel and should control here, as the right to issue arrest warrant upon a positively verified information, which does not contain a detailed recitation of such facts or themselves show probable cause, has never before been challenged in this State.

Giordenello held that contraband seized without a search warrant should be suppressed unless taken as an incident to a legal arrest; that Rules 3 and 4 of the Federal Rules of Criminal Procedure must be read in the light of the Fourth Amendment to the Federal Constitution; that the Fourth Amendment applies to arrest warrants as well as to search warrants; and that the protection afforded by the Rules, viewed against constitutional background, requires inferences from facts, leading to the complaint, must be drawn by a neutral and detached magistrate instead of by an officer engaged in ferreting out crime.

There is considerable to distinguish Giordenello from the present case. To start with, the issue there was the suppression of contraband evidence seized incident to an arrest. Therefore, as the arrest was made upon a warrant issued without probable cause, the admissibility of the contraband depended upon the legality of the warrant. Here the issue is whether a verdict and judgment of conviction should be set aside, and the defendant's guilt or innocence does not depend upon the legality of the warrant issued, but upon whether she had a fair trial. On the other hand, the fairness of Giordenello's trial depended upon the admissibility of the challenged evidence. The manner of defendant's apprehension had nothing to do with her guilt or innocence. The illegality of an arrest warrant only affects the lawfulness of the taking into custody; it does not affect the question of guilt or innocence. In consequence, unless an unlawful apprehension is held to deprive a trial court of jurisdiction to try and convict for a criminal offense, any irregularity or insufficiency in the issuance of the arrest warrant will not do so. People v. Smith, 36 Misc.2d 889, 233 N.Y.S.2d 164, 165, said, 'In a criminal proceeding, how the defendant came or was brought into court is relatively unimportant,' and held jurisdiction was acquired regardless of the legality of arrest.

People ex rel. Hein v. Ramsden, 36 Misc.2d 345, 232 N.Y.S.2d 633, 634, held even if due process was not observed in procuring...