Fuller v. State, No. 4598

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore GUTHRIE; GUTHRIE; THOMAS
PartiesJohn M. FULLER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
Docket NumberNo. 4598
Decision Date01 September 1977

Page 900

568 P.2d 900
John M. FULLER, Appellant (Defendant below),
v.
The STATE of Wyoming, Appellee (Plaintiff below).
No. 4598.
Supreme Court of Wyoming.
Sept. 1, 1977.

Page 901

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and William V. Eichelberger, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.

V. Frank Mendicino, Atty. Gen., Jerry M. Murray, and Peter J. Mulvaney, Senior Asst. Attys. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

John Fuller appeals from a judgment and sentence upon his conviction of the crime of aggravated assault with intent to commit murder in the second degree. He raises the following issues:

1. Whether the court had jurisdiction over the subject matter of the action when it proceeded to trial upon an amended information which was filed without leave of court.

2. Whether the evidence of specific intent was sufficient to allow the case to go to a jury upon the charge of assault with intent to commit murder in the second degree. 1

3. Whether error was committed by submitting confusing and misleading instructions to the jury.

We cannot reach question 3 because it was not properly preserved by the record. We have determined that the court did have jurisdiction over the subject matter in the action contrary to Fuller's contention, but we have determined in agreement with his contention that there was not sufficient evidence of specific intent to sustain a conviction of assault with intent to commit murder in the second degree.

A statement of the facts in this case is particularly essential because of the issue

Page 902

concerning sufficiency of the evidence. In the early morning hours of March 22, 1975, a bullet struck the right front door of a Wyoming Highway Patrol car, driven by Mark Spencer, who had been patrolling Interstate Highway 80 near Rock Springs. After taking evasive action he radioed for assistance and returned to the area where the shooting occurred. There he found boot prints and dog tracks leading away from the highway. Spencer lost track of the prints two or three times due to rockiness in the terrain, but eventually they led to a site from which the barking of a dog emanated. After receiving two commands, John Fuller stood up in that area. A second patrolman went to that spot and picked up a rifle. Fuller was handcuffed and taken to the Rock Springs Police Department.

Spencer filed a criminal complaint, and the justice of the peace issued a warrant for Fuller based on a violation of § 6-70B, W.S.1957, 1975 Cum.Supp., i. e., aggravated assault and battery with a dangerous weapon. Fuller waived a preliminary hearing and was arraigned on April 9, 1975. He pleaded not guilty. An information was issued charging that he feloniously and maliciously shot at a Wyoming Highway Patrol car being driven by Mark Spencer. On May 13, 1975, an amended information was filed, charging that Fuller perpetrated an assault on a human being with intent to commit first degree murder.

On June 17, 1975, the matter came on for trial. Fuller testified that he had been drinking liquor continuously from sometime after noon on March 21, 1975, until the time of the shooting. He further testified that the rifle discharged accidentally as he stumbled while walking over rough terrain. There was no showing that Fuller disliked Spencer or even knew him; nor was there evidence of any grudge or other bad feeling toward any police officer. Spencer testified that in the course of his investigation of the scene of the incident and of the patrol car he found that a person of normal height would have to have had the rifle in a high position, such as shoulder height, for the bullet to have struck the door as it did, if the rifle was fired from where the boot tracks were found nearest the highway.

The defense moved for a directed verdict of not guilty on the ground that the State failed to prove all of the elements of the crime specifically that there was no evidence of intent to fire any shots and no evidence of intent to kill or assault the patrolman. The motion was denied.

Among other instructions, the court instructed the jury that the defendant had been charged with the commission of the crime of aggravated assault while armed with a dangerous or deadly weapon and quoted a charge of assault with intent to commit first degree murder. In another instruction the court discussed direct evidence and circumstantial evidence, concluding with the statement that, to convict, the evidence must not only be consistent with guilt but irreconcilable with innocence. The record reveals no objection to these instructions.

The first of appellant's contentions has no solid basis. Rule 16(b), W.R.Cr.P., requires that objections based on defects in the information must be raised by motion before trial, unless the objection is that the information failed to show jurisdiction in the court. The broad scope and application of Rule 12(b)(2), F.R.Cr.P., being identical to our Rule 16(b)(2), has been stated in Davis v. United States, 411 U.S. 233, 236, 93 S.Ct. 1577, 1580, 36 L.Ed.2d 216, 221:

" * * * by its terms, it applies to both procedural and constitutional defects in the institution of prosecutions which do not affect the jurisdiction of the trial court. * * * "

In apparent recognition of this application, appellant bases his argument upon the contention that the court had no jurisdiction of the subject matter because of the failure to secure an order from the trial judge authorizing the filing of this amended information. In our disposal, we shall...

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43 practice notes
  • Garcia v. State, No. 88-205
    • United States
    • United States State Supreme Court of Wyoming
    • July 13, 1989
    ...to cause bodily injury to Officer Nicholl. His argument relies heavily upon a superficial reading of our decision in Fuller v. State, 568 P.2d 900 (Wyo.1977). That argument is In Fuller we explained that, although the law presumes an individual to generally intend the natural consequences o......
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2003
    ...of the general class to which the proceedings in question belong.'" Lacey v. Lacey, 925 P.2d 237, 238 (Wyo.1996) (quoting Fuller v. State, 568 P.2d 900, 903 (Wyo.1977)). The district court's subject matter jurisdiction was invoked through the Uniform Declaratory Judgments Act (Wyo. Stat. An......
  • Billis v. State, Nos. 88-311
    • United States
    • United States State Supreme Court of Wyoming
    • October 5, 1990
    ...V Land & Water L.Rev. 581-86 (1970)--part of a symposium on the Wyoming Rules of Criminal Procedure. 15 See e.g., Fuller v. State, 568 P.2d 900, 902 (Wyo.1977) (W.R.Cr.P. 16(b)(2) identical to F.R.Cr.P. 12(b)(2)); Richmond v. State, 554 P.2d 1217, 1222 (Wyo.1976); (W.R.Cr.P. 7 essentially t......
  • Stamper v. State, No. 5713
    • United States
    • United States State Supreme Court of Wyoming
    • April 8, 1983
    ...was used with apparent ability to accomplish the assault. In Brown v. State, Wyo., 590 P.2d 1312 (1979), and in Fuller v. State, Wyo., 568 P.2d 900 (1977), the weapon was a loaded firearm which was actually discharged. In Evanson v. State, Wyo., 546 P.2d 412 (1976), the weapon was a firearm......
  • Request a trial to view additional results
43 cases
  • Garcia v. State, No. 88-205
    • United States
    • United States State Supreme Court of Wyoming
    • July 13, 1989
    ...to cause bodily injury to Officer Nicholl. His argument relies heavily upon a superficial reading of our decision in Fuller v. State, 568 P.2d 900 (Wyo.1977). That argument is In Fuller we explained that, although the law presumes an individual to generally intend the natural consequences o......
  • Director, Office of State Lands v. Merbanco, No. 01-261
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2003
    ...of the general class to which the proceedings in question belong.'" Lacey v. Lacey, 925 P.2d 237, 238 (Wyo.1996) (quoting Fuller v. State, 568 P.2d 900, 903 (Wyo.1977)). The district court's subject matter jurisdiction was invoked through the Uniform Declaratory Judgments Act (Wyo. Stat. An......
  • Billis v. State, Nos. 88-311
    • United States
    • United States State Supreme Court of Wyoming
    • October 5, 1990
    ...V Land & Water L.Rev. 581-86 (1970)--part of a symposium on the Wyoming Rules of Criminal Procedure. 15 See e.g., Fuller v. State, 568 P.2d 900, 902 (Wyo.1977) (W.R.Cr.P. 16(b)(2) identical to F.R.Cr.P. 12(b)(2)); Richmond v. State, 554 P.2d 1217, 1222 (Wyo.1976); (W.R.Cr.P. 7 essentially t......
  • Stamper v. State, No. 5713
    • United States
    • United States State Supreme Court of Wyoming
    • April 8, 1983
    ...was used with apparent ability to accomplish the assault. In Brown v. State, Wyo., 590 P.2d 1312 (1979), and in Fuller v. State, Wyo., 568 P.2d 900 (1977), the weapon was a loaded firearm which was actually discharged. In Evanson v. State, Wyo., 546 P.2d 412 (1976), the weapon was a firearm......
  • Request a trial to view additional results

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