Gonzales v. State

• Decision Date: 09 July 1976
• Docket Number: No. 4545,4545
• Parties: Steve GONZALES, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 929

551 P.2d 929

Steve GONZALES, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4545.

Supreme Court of Wyoming.

July 9, 1976.

Rehearing Denied Aug. 4, 1976.

Lowell H. Fitch, Torrington, signed the brief and appeared in oral argument on behalf of the appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and William K. Bormuth, Legal Intern, Cheyenne, signed the brief and William K. Bormuth appeared in oral argument on behalf of the

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

PER CURIAM.

The defendant-appellant was tried before a jury, found guilty of burglary and sentenced to a term in the Wyoming State Penitentiary. The defendant only questions in this appeal the sufficiency of the grand jury indictment, by which he was charged.

The statute involved is § 6-129(A), W.S. 1957:

'Whoever, intentionally enters, or attempts to enter, any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony therein may be imprisoned not more than fourteen (14) years:

'(1) Any building or dwelling; or * * *.'

The indictment charged that:

'On or about the 21st day of May, 1973 in the County of Niobrara, State of Wyoming, Steve Gonzales did unlawfully and feloniously enter into the Willard Drug Store, Lusk, Wyoming, without the consent of the occupant with the intent to steal.

'Contrary to the form of the statute in such case made and provided to-wit: contrary to title 6-129(A) Wyoming Statutes, 1957, and against the peace and dignity of the State of Wyoming.'

The defendant specifically contended in the district court by a timely motion to dismiss and now here contends that since the statutory word 'intentionally' was omitted and the words 'unlawfully and feloniously' substituted, the indictment was totally defective. In this court for the first time he also asserts that the statutory word 'therein' was omitted from the indictment, so that further ground for reversal of the conviction exists. These claims raise the only issues in this appeal.

We do not nor should anyone question the constitutional right of the defendant charged with the crime to be informed of the nature and cause of the charge against him. ¹ Rule 9(a), W.R.Cr.P., implements the constitutional requirements and demands that the indictment '(S)hall be a plain, concise and definite written statement of the essential facts constituting the offense charged' and state '(T)he official or customary citation of the statute,' alleged to have been violate. The rule cited goes on to say: 'Error in the citation or its omission or any other defect or imperfection which does not tend to prejudice any substantial right of the defendant upon the merits or to mislead the defendant to his prejudice shall not be grounds for dismissal of the indictment or information or for reversal of a conviction.' In a criminal indictment, it is only necessary to allege sufficiently to allow the accused to understand the charge and prepare his defense. Boyd v. State, Wyo.1974, 528 P.2d 287, 289, cert. den. 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102.

Portions of Rule 9, W.R.Cr.P., are taken directly from Rule 7, F.R.Cr.P. There are some variations in the Wyoming rule but for the most part only to adapt it to State practice. Essentially, for our consideration here, the two rules are the same. What has been said by the federal courts about the rule? 'Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. (Citing cases.) This has been a salutary development in the criminal law.' Smith v. United States, 1959, 360 U.S. 1, 9, 79 S.Ct. 991, 996-997, 3 L.Ed.2d 1041, 1048. 'The modern trend has been toward a more liberal, reasonable and realistic view, as is embodied in Rule 7 of Federal Rules of Criminal Procedure.' United States v. Chunn, 4 Cir. 1965, 347 F.2d 717, 719. "(T)he practice of fine combing indictments for verbal and technical omissions is no longer countenanced by the courts." Risken v. United States, 8 Cir. 1952, 197 F.2d 959, 963, quoting from Hartwell v. United States, 5 Cir. 1939, 107 F.2d 359, 362. 'The validity of an indictment under Rule 7(c), F.R.Crim.P. is determined by practical, not technical considerations.' United States v. Miranda, 5 Cir. 1974, 494 F.2d 783, 788, cert. den. 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed.2d 181. '(T)he validity of attacks on them (indictments) must be considered from a broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting.' Robbins v. United States, 10 Cir. 1973, 476 F.2d 26, 30; Parsons v. United States, 5 Cir. 1951, 189 F.2d 252, 253.

All this, however, does not mean that we approve or allow haphazard and careless pleading in charging a crime. As said in Smith v. United States, supra, '(T)he substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules.'

This court has frequently said that an information or indictment framed in the language of the statute is sufficient. Boyd v. State, supra, and cases there cited. We find no Wyoming cases which require that the defendant must be charged in the words of the statute. The case nearest approaching that degree of adherence is State v. Callaway, 1954, 72 Wyo. 509, 516, 267 P.2d 970, 971, where it was said that ordinarily it is sufficient to charge in 'substantially' the language of the statute.

The law seems clear that where a defendant is not misled to his prejudice, an indictment is not invalid because it does not conform exactly to the language of the statute. United States v. Ivers, 8 Cir. 1975, 512 F.2d 121; United States v. White, 4 Cir. 1973, 475 F.2d 1228; United States v. Cluchette, 9 Cir. 1972, 465 F.2d 749; Hockenberry v. United States, 9 Cir. 1970, 422 F.2d 171. However, any variations from the statutory language must be in words carrying the same import as the statute.

We hold that the use of the word 'feloniously' carries the same import as the word 'intentionally.' Criminal intent is implied from the use of the word 'feloniously.' The cases are voluminous to that effect. Dowdell v. Bell, Wyo.1970, 477 P.2d 170, 173; Elliott v. State, 1934, 47 Wyo. 36, 45, 30 P.2d 791, 793; McGinnis v. State, 1907, 16 Wyo. 72, 80, 91 P. 936, 937; Thomas v. State,, Alaska 1974, 522 P.2d 528, 530; State v. Clingerman, 1973, 213 Kan. 525, 516 P.2d 1022, 1026; Thomas v. State, Miss.1973, 278 So.2d 469, 471; Petition of Brown, 1968, 150 Mont. 483, 484, 436 P.2d 693, 694; Gallegos v. People, 1966, 161 Colo. 158, 161, 420 P.2d 409, 410; Combs v. Commonwealth, Ky.1962, 356 S.W.2d 761 763. For other citations, see 16 Words and Phrases, 'Feloniously,' beginning at page 669. The heavy weight of authority is that the use of the word 'feloniously' meets an intent (knowledge) requirement. The indictment here, when reasonably viewed therefor, charges that the defendant entered the building intentionally.

While the adequacy of the indictment must be determined as of the date of a timely motion to dismiss, we found it interesting to examine the evidence with respect to the entry here made. It exemplifies an intentional entering. A utility pole next to a building adjacent to the drug store building was climbed to get access to the drug store roof. A window was taken out of an opening on top of the Willard Drug Store. Flooring on a second floor above the drug store was torn out and a hole cut in the ceiling. The safe lock was pounded and punched out and the safe door thus forcibly opened for removal of money and drugs. That has all the appearances of the intentional entry contemplated by the cited statute. The proof conformed...