Hays v. State, 4259

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtGUTHRIE
Citation522 P.2d 1004
PartiesRobert V. HAYS and Donald D. Richmond, Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below).
Docket NumberNo. 4259,4259
Decision Date29 May 1974

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.

Page 1005

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

Page 1006

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...

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