Hays v. State

• Decision Date: 29 May 1974
• Docket Number: No. 4259,4259
• Parties: Robert V. HAYS and Donald D. Richmond, Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1004

522 P.2d 1004

Robert V. HAYS and Donald D. Richmond, Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4259.

Supreme Court of Wyoming.

May 29, 1974.

John E. Ackerman, Casper, for appellants.

Clarence A. Brimmer, Atty. Gen., Jerome F. Statkus, Asst. Atty. Gen., Cheyenne, and Robert B. Ranck, County Atty., Jackson, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

This is an appeal from a judgment and sentence based upon jury verdicts of guilty, finding Robert V. Hays guilty of the crime of rape and of aggravated assault and assault and battery with a dangerous weapon, and finding Donald D. Richmond guilty as an accessory before the fact to rape and aggravated assault and assault and battery with a dangerous weapon.

THE REFUSAL TO GRANT MOTION FOR CONTINUANCE

Appellants' counsel contends that it was error for the court to refuse to grant the motion for continuance, quite clearly stating and recognizing the rule that the grant or denial of the motion for continuance is a matter for discretion of the trial court. The record does not demonstrate any abuse, in our opinion, nor is any prejudicial effect of such ruling asserted. This disposes of the matter. However, because of the gratuitous suggestion that the court based the denial of this motion upon an improper basis, which counsel attempts to demonstrate by certain remarks of the judge made during a recess and after the beginning of the trial when the judge mentioned criticism by the press, public, and legislature of general court delay ¹ and that he was a judge who wished to expeditiously dispose of matters, ² we think this should not pass unnoticed. A judge who asserts his aim to expeditiously handle litigation is to be commended, not condemned. The writer thinks it worthy of mention that our court system was created by and for the public and is not the sole province and property of lawyers and judges-that court business is public business and cures of abuses have come largely from popular revolt. ³

A further observation may be appropriate-that a trial judge who grants a continuance of a case, civil or criminal, set for trial based upon the mere request, whim, or convenience of counsel without substantial or legal reason for such continuance is himself guilty of a species of discretionary abuse.

ERROR IN INSTRUCTIONS

Although admitting that no objection was made at the time of trial, appellants assert that the giving of Instruction No. 3 is a clear constitutional deprivation under the Sixth and Fourteenth Amendments of the Constitution of the United States, and in violation of §§ 6 and 9, Art. 1, Who. Const. The instruction is as follows:

'INSTRUCTION #3

'The Information in this case reads as follows:

'COMES NOW, John S. Mackey, County and Prosecuting Attorney of the County of Sublette and State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the Court and gives the Court to understand that Robert V. Hays and Donald D. Richmond late of the county aforesaid, on the 21st day of October, 1972, in the County of Sublette in the State of Wyoming, did unlawfully

'COUNT I

'violate § 6-63(A) W.S.1957, as amended, entitled 'Rape,' in that said Robert V. Hays did unlawfully have carnal knowledge of a woman, to-wit: Karen Kothe, forcibly and against her will, and that said Donald D. Richmond is being charged for the same crime pursuant to § 6-14 W.S.1957 in that he did aid and abet in the commission of said rape and was an accessory before the fact;

'COUNT II

'and the said Robert V. Hays and Donald D. Richmond did unlawfully violate § 6-70B W.S.1957, as amended, entitled 'Aggravated Assault and Assault and Battery,' in that both Defendants, while armed with dangerous or deadly weapons, to-wit: a rifle and knives, maliciously perpetrated an assault or an assault and battery upon Karen Kothe.

'The essential facts and acts of the Defendants constituting the crimes charged against the defendants in Counts I and II are that on October 21, 1972, Karen Kothe was riding to Jackson from Rock Springs in the Jackson-Rock Springs Stage Limousine, which broke down between Farson and Pinedale, Wyoming. The Defendants driving an older model white Ford Pickup, offered to give Miss Kothe a ride to Jackson. Enroute to Jackson the defendants turned off Highway 187 on to the Cliff Creek Road in the Hoback Canyon in the County of Sublette, State of Wyoming, and did take Miss Kothe to a point approximately one mile southwest on said road. At or about this time both of the defendants did threaten to kill Karen Kothe with knives. The defendant Hays then stated to Miss Kothe, 'Don't you want to shuck off your pants?' and 'If you don't put out, I'm going to slit your throat.' The Defendant Richmond did then point a rifle at Miss Kothe's head. The Defendant Hays did grab Miss Kothe by her left arm and pulled her out of the pickup and took her to an area adjacent to Cliff Creek where he did have intercourse with her after she had refused to do so. The Defendant Richmond did fire a rifle at the ground approximately one foot from Miss Kothe. The defendants did then drive Karen Kothe to Teton Village, Wyoming, and enroute thereto did threaten to kill her if she advised the Sheriff of the foregoing.

'The above information having been provided to the Office of the County and Prosecuting Attorney of Sublette County, Wyoming by Robert B. Ranck, Teton County and Prosecuting Attorney; Timothy J. Bommer, Deputy County and Prosecuting Attorney of Teton County; and Sheriff Norman Bear and former Deputy Sheriff Sparky J. Imeson, of the Teton County, Wyoming Sheriff's Office and said acts being contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Wyoming.'

For a better understanding of this case it must also be said that nowhere in the instructions was the jury instructed that an information is merely a formal charge or accusation and is not in itself evidence of any guilt.

Reading the charging part of the information to the jury by way of instruction is not improper but a defendant is entitled to an instruction that this is only a formal charge if he requests, State v. Gilmore, 336 Mo. 784, 81 S.W.2d 431, 433; 23 A C.J.S. Criminal Law § 1194 p. 496, and § 1217, pp. 546-547. It has been said that the reading of an information to the jury is not to be commended and is of dubious value, Norman v. United States, 6 Cir., 100 F.2d 905, 907, certiorari denied, 306 U.S. 660, 59 S.Ct. 790, 83 L.Ed. 1057; United States v. Nichols, 7 Cir., 322 F.2d 681, 683, certiorari denied, 375 U.S. 967, 84 S.Ct. 485, 11 L.Ed.2d 415. 'Information' is a legal term about which no juror should be forced to speculate, and an instruction containing the material allegations of the charge would seem to better serve to inform the jury. However, we do not view this as reversible error under our rule.

The last two paragraphs of the above-quoted instruction, however, raise serious and disturbing questions which are of such importance and gravity that even in absence of objection at the time of trial this case must be reversed. Rule 49(b), W.R.Cr.P., governs our consideration in absence of such objection. Our Rule 40(b) is identical to Rule 52(b), F.R.Cr.P. We must further notice that Rule 51, W.R.C.P., provides:

'* * * No party may assign as error the giving (of) * * * an instruction unless he objects thereto before the jury retires * * *'

This has been made applicable to criminal cases, Bentley v. State, Wyo., 502 P.2d 203, 206. Rule 30, F.R.Cr.P., is not substantially different than Rule 51, W.R.C.P. Rule 52(b), F.R.Cr.P., is applied to wrongful and erroneous instructions and is in harmony with Rule 30 of the Federal Rules, Apodaca v. United States, 10 Cir., 188 F.2d 932, 937; United States v. Small, 3 Cir., 472 F.2d 818, 819; United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241, 245; 3 Wright, Federal Practice and Procedure, § 856, p. 375 (1969). In absence of direct authority by our own decision reliance must be placed upon the decision of Federal courts, and a wrongful and erroneous instruction may be considered if plain error be present. There is little value in attempting any definition of 'plain error or defects affecting substantial rights,' but the courts must base each case on its own particular facts, 3 Wright, supra, p. 373.

Prior to our adoption of this rule this court since early date has recognized that even in absence of objection if a fundamental error be present in a trial a judgment should be reversed, Parker v. State, 24 Wyo. 491, 161 P. 552, 554; Ohama v. State, 24 Wyo. 513, 161 P. 558; Gardner v. State,27 Wyo. 316, 196 P. 750, 756, 15 A.L.R. 1040; State v. Callaway, 72 Wyo. 509, 267 P.2d 970. Although in those cases no attempt was made to define what constituted a fundamental error, a review of them reveals determinations were made upon their individual facts and the possible prejudice which might flow therefrom. It is also to be observed that all of...