Dorador v. State
| Decision Date | 25 March 1974 |
| Docket Number | No. 4295,4295 |
| Citation | 520 P.2d 230 |
| Parties | Joe (nmi) DORADOR, Jr., Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Edward P. Moriarity of Urbigkit, Moriarity & Halle, Terry W. Mackey, Cheyenne, for appellant.
Clarence A. Brimmer, Atty. Gen., David A. Kern, Sp. Asst. Atty. Gen., Cheyenne, for appellee.
Before PARKER, C. J., and GUTHRIE and McINTYRE, JJ.
The appellant was tried and convicted in district court on two indictments: (1) possession with intent to deliver a controlled substance (marihuana); and (2) delivery of a controlled substance (marihuana). On appeal defendant first asserts he was denied a fair trial because he was tried on two separate indictments arising out of the same circumstance; and a conviction and sentencing on both indictments constituted double jeopardy
Dorador was charged under § 35-347.31(a), W.S.1957, 1973 Cum.Supp. Insofar as pertinent, the section provides:
'* * * it is unlawful for any person to * * * deliver, or possess with intent to * * * deliver, a controlled substance.' (Emphasis supplied.)
It is significant that the legislature used the disjunctive 'or,' thereby indicating that a violation of any of the mentioned prohibitions was a crime. 1 A statute was dealt with in State v. Fitzpatrick, 5 Wash.App. 661, 491 P.2d 262, 266, which provided that it shall be unlawful for a person 'to sell' 'or distribute' marihuana. The court stated that the disjunctive 'or' clearly differentiates between sale and distribution and in effect makes them separate methods of violating the law.
Loddy v. State, Wyo., 502 P.2d 194, 197, is relied on for the proposition that, if more than one criminal offense arises from the same transaction inspired by the same criminal intent which is the essential element of each offense, the offenses merge and the defendant is subject to only one punishment. While Loddy is not completely analogous to the case at bar, we agree that a person who, in one transaction, possesses with intent to deliver and delivers a controlled substance commits a single violation of the statute and should incur only on punishment.
Judge Blume discussed a comparable situation in State v. Tobin, 31 Wyo. 355, 226 P. 681, 685 ff., 2 citing Howard v. State, 191 Ind. 232, 131 N.E. 403, where it was said, at 131 N.E. 404:
The evidence in the instant case brings it within the rule pronounced in Tobin.
While, as the State argues, each of the offenses delineated in § 35-347.31(a) can be committed separately and be punishable as such, the only substantial evidence presented to the court here related to one transaction, that of the delivery. Aside from that there is no evidence of the possession of a controlled substance except a rather casual reference to the defendant's going to the other room for it. Conceivably there could be some implication that since he went there to get the substance he must have possessed more. However, such would not warrant a conviction on this aspect. Nevertheless, this does not mean, as defendant Dorador argues, that he was prejudiced by having to go on trial for both indictments before the same jury at the same time when he could, had the evidence so warranted, been convicted of both.
For reasons which are being hereinafter explained, we consider it necessary to remand this case for new trial. Even if that were not done, however, we would be compelled to hold that only one sentence of the prescribed time of three and one-half to four years and one fine of $1,250 could be imposed upon Dorador.
Appellant claims prejudicial error was committed at his trial because the trial court permitted testimony pertaining to crimes committed by the defendant other than the ones for which he was being tried. Gabrielson v. State, Wyo., 510 P.2d 534, 536; Wright v. State, Wyo., 466 P.2d 1014, 1016; Rosencrance v. State, 33 Wyo. 360, 239 P. 952, 956; and Eads v. State, 17 Wyo. 490, 101 P. 946, 950, are cited for the principle that a party is not to be convicted of one crime by proof that he is guilty of another.
Otherwise stated, the prosection msy not attack the character of a defendant unless the defendant himself has first placed his character in issue. Anderson v. State, 27 Wyo. 345, 196 P. 1047, 1055; State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 363, reh. den. 300 P.2d 567, cert. den. 352 U.S. 981, 77 S.Ct. 384, 1 L.Ed.2d 366. The record in Dorador's trial shows the prosecution placed the accused's...
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Cook v. State
...(Wyo.1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975); Jackson v. State, 522 P.2d 1286 (Wyo.1974); and Dorador v. State, 520 P.2d 230 (Wyo.1974). See also Howard, 762 P.2d 28.1 "Given the facts of this case, the prosecutor could have charged Cook and Peterson with first......
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Duffy v. State
...287 (1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975); Jackson v. State, Wyo., 522 P.2d 1286 (1974); Dorador v. State, Wyo., 520 P.2d 230 (1974); Loddy v. State, Wyo., 502 P.2d 194 (1972), cert. denied 414 U.S. 1134, 94 S.Ct. 877, 38 L.Ed.2d 760 (1974); and State v. Tob......
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...See Dobbins v. State, Wyo., 483 P.2d 255; Boyd v. State, Wyo., 528 P.2d 287; Dycus v. State, Wyo., 529 P.2d 979; and Dorador v. State, Wyo., 520 P.2d 230. The question remaining for resolution is whether or not the court should have permitted the case to go to the jury on both charges, thus......
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Duffy v. State, 87-160
...any more than it would intend to punish separately the breaking of a window which was accomplished in the course of a burglary. In Dorador, 520 P.2d 230, and the cases which follow it, Tobin was relied upon to hold that the defendant could be convicted of only one offense when charged with ......