Downs v. State
| Decision Date | 13 July 1978 |
| Docket Number | No. 4729,4729 |
| Citation | 581 P.2d 610 |
| Parties | Arthur James DOWNS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Stephen R. Johnson, Student Intern, Wyoming Defender Aid Program, Laramie, signed the briefs and appeared in oral argument on behalf of the appellant.
V. Frank Mendicino, Atty. Gen., and Frank R. Chapman, Asst. Atty. Gen., signed the brief and Allen C. Johnson, graduate law student and legal intern, Cheyenne, appeared in oral argument on behalf of the appellee.
Before RAPER, THOMAS and ROSE, JJ., J. F. MAHONEY, District Judge, and J. REUEL ARMSTRONG, District Judge, retired.
RAPER, J. delivered the opinion of the court, in which THOMAS, J. and MAHONEY, District Judge, joined. ARMSTRONG, District Judge, retired, filed a dissenting opinion, in which ROSE, J., joined.
After a jury trial, the appellant was found guilty of burglary in violation of Section 6-129, W.S.1957, (Section 6-7-201, W.S.1977). 1 The issues are:
1. Whether the appeal was timely taken.
2. If the appeal is properly before us,
(a) Whether the evidence was, as a matter of law, sufficient to sustain a conviction for burglary;
(b) Whether instructions by the trial court, with drunkenness as a legal excuse for crime, misstated the law and are contradictory.
We will hold the appeal to have been timely taken and affirm.
After the judgment and sentence was filed herein, appellant timely moved for a judgment under Rule 30(c), W.R.Cr.P., or, in the alternative, for a new trial pursuant to Rule 34, W.R.Cr.P. Before an order denying these motions was entered, appellant filed his notice of appeal. This court on its own motion questioned timeliness of the appeal and called for briefs by the parties.
According to Rule 38, W.R.Cr.P., criminal appeals to this court are to be taken within the time and in the manner provided by the Wyoming Rules of Civil Procedure. Rule 73(a), W.R.C.P., provides in pertinent part:
(Emphasis added.)
In a civil case, we held under similar circumstances that the notice of appeal was premature and, therefore, this court had no jurisdiction over the appeal. Financial Management Corporation v. Wyoming Electric Sign Company, Wyo.1977, 561 P.2d 237. The appellant therein had filed a notice of appeal while a motion for new trial under Rule 59, W.R.C.P., was still pending.
While appellant here contends that a premature notice of appeal does not deprive this court of jurisdiction, we need not reach that question in order to dispose of the problem which we raised. Rule 73(a), supra, makes reference only to the civil rules, concerning various motions which will terminate the running of the time for appeal. It makes no reference to their criminal counterparts. We are, therefore, unable to read Rule 73(a), supra, as automatically including the criminal motions made in this case. Before we will dismiss an appeal for failure to file a timely notice of appeal, there must be clear grounds for doing so. Those grounds do not exist in this case, given the present state of confusion in regard to the applicability of Rule 73(a), supra, to criminal motions. The rules of this court pertaining to appeals have been revised and will remove any recognized lack of clarity.
The record furnishes the evidence necessary to a determination as to the sufficiency of the evidence challenged by the defendant. On the evening of April 2, at locking time, a box of tools was present in the grain-treating room of Tom Van Gelder's Greybull Elevator, located at Greybull, Wyoming, adjacent to the railroad yards. At the time of opening the business the next morning, the tools were immediately noticed to be missing. No one was given permission to enter the establishment during the night. The point of entry was identified to be a broken window, opening into the basement of the building, near which there was grain on the floor which appeared to be disturbed. The window had been broken for several weeks. The entry point was about 45-50 feet from the point where the tools had been located.
A Greybull police officer responded to a call at 7:15 a. m. the same morning the tools had been stolen but prior to notice to the police that they were missing. A Mrs. McMillan had called, reporting that a man was at her house trying to sell her some tools. The officer went to the house where he found the defendant with vise grips, screwdrivers, flashlight and a hand saw, later identified to be those stolen from Van Gelder's business. The defendant was told to leave the residence and be out of town by evening. The defendant advised the officer that he had been trying to catch a ride on the train but had not been able to do so yet. The defendant picked up the tools, placed them in his coat pockets and departed.
Shortly after that incident, Mr. Van Gelder reported to the police that tools were missing from his elevator, so the officer went at once to the railroad yards. By the time he caught up with the defendant, the defendant had already been located by Van Gelder and another individual and was being removed to a pickup. The officer at once arrested the defendant, advised him of his Miranda rights and removed him to the police station, where, upon search, a pair of vise grips, later identified as part of the stolen tools, were removed from the defendant's coat.
The defendant advised the officer he had sold the other tools to a railroad brakeman. The brakeman, then on a run, was located by a railroad official. The brakeman immediately upon return reported to the police and turned over the tools, identified during trial as those stolen from Van Gelder and bought from defendant at 7:40 the morning the theft was discovered but before it was reported. The brakeman's testimony was that he was approached by defendant and offered the tools. The defendant wanted $10.00 for them but took.$7.00. The defendant advised the brakeman, according to the transcript: "He told me that he come out from Iowa in this old car and it broke down, he just talked to the police officer and the police officer told him to get out of town and he had these tools that he had taken out of the trunk of his car, would like to sell them." The defendant was identified by Van Gelder as having been in his place of business a day or so before the burglary.
The defendant then testified on his own behalf. He explained that he had hopped a The defendant's issue as framed in his brief, on the insufficiency of evidence to convict is as follows:
train in Casper earlier in the week, intending to go south, but got on the wrong train and ended up in Greybull, where he had gotten off to buy some liquor but the train pulled out leaving him stranded. He settled in a boxcar, in hopes that a train would take him somewhere. However, he discovered the boxcar was on the wrong track for that. With relation to the Greybull Elevator, he used a hobo camp just across the tracks and slept there by a fireplace. He jumped a freight the day before the night of the occurrence, struck up a friendship with someone by the name of Johnny, started drinking, apparently got off the train, where Johnny got a fire going in the hobo camp where the drinking continued. He fell asleep near the fire. When he awakened at daylight, he went to pick up some paper and things, near what is referred to as the culvert, a sort of trash-strewn area, to build a fire. He said he found the tools right behind where he was sleeping. He wondered where they came from but needing a drink and a smoke, decided to sell them. He recalled his visit to sell the tools to Mrs. McMillan, his encounter there with the police officer, and the sale of tools to the brakeman. He agreed that he had told the brakeman he had taken the tools from the back of his car, adding, "I knew I had to come up with a story." After that, he bought a breakfast of eggs and hashbrowns, a pint of gin and a package of cigarettes. He could not recall breaking into the Greybull Elevator, but concluded, "If I broke into that elevator I was so drunk I didn't know what I was doing." The defendant admitted to having been convicted of six felonies, ranging from breaking and entering to attempted murder with a broken whiskey bottle. He related a history of drinking and attempted treatment, styling himself...
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