Hutchins v. State
| Decision Date | 07 April 1971 |
| Docket Number | No. 3907,3907 |
| Citation | 483 P.2d 519 |
| Parties | James Ray HUTCHINS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Edward P. Moriarity of McClintock, Mai, Urbigkit & Moriarity, Cheyenne, Brent R. Kunz, senior law student, University of Wyoming, for appellant.
James E. Barrett, Atty. Gen., William L. Kallal, Asst. Atty. Gen., Cheyenne, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN, and GRAY, JJ.
Defendant was charged in two counts, with violation of § 6-17, W.S.1957, forgery and with violation of § 6-38.2, W.S.1957 (1969 Cum.Supp.), the unlawful use of a credit card, a misdemeanor, and on trial by jury was convicted. On the latter he was sentenced to six months in the county jail, and the sentence was suspended; on the former, he was sentenced to three to five years in the state penitentiary. He has appealed, urging error on two grounds, first, that a violation of the forgery statute cannot stand because a specific statute, § 6-38.2, dealing with the unlawful use of credit cards, controls, and second, the State has failed to prove except by inadmissible hearsay testimony that the credit card was not lawfully in his possession.
The facts are not complicated or contradicted. On January 15, 1970, defendant appeared in Ben's Variety Store, Greybull, purchased four electrical appliances for a total price of $57.50, presented a Master Charge credit card issued to 'Claud E Franklin' and signed the name 'Claude E Franklin' to the triplicate Master Charge sales slip at the place marked 'purchaser acceptor.' Thereafter James Haycock, the owner of the store, called the 'Master Card' office by telephone and the police, who took defendant into custody. Mr. Franklin in July 1969 had received the Master Charge card, which defendant used at Ben's Variety Store, but since he was the manager of a bar in Casper never carried anything of that nature to work. He had received certain bills in the mail on which his signature appeared but which he had not signed and on January 9, 1970, was notified by his wife that the Master Charge card was missing. Mr. Franklin had seen the defendant at the Casper bar but had not given him permission to sign his name or to use his credit card.
Defendant urges that he cannot be lawfully charged with violation of § 6-17, forgery, because the legislature by the later passage of §§ 6-38.1 and 6-38.2 made unlawful use of a credit card a misdemeanor. Defendant cites as authority for his position People v. Swann, 213 Cal.App.2d 447, 28 Cal.Rptr. 830, 832. It is true that the court in the Swann case would not separate the signing of a credit invoice from the 'use' of the credit card, reasoning that: 'Certainly the Legislature in enacting * * * (the credit-card statute) contemplated false or unauthorized signatures on credit invoices by parties engaged in the misdemeanor use of credit cards * * * since such signatures are required of credit card users in the customary use of such cards.' 1 However, such an interpretation has not been accepted in other jurisdictions. Shriver v. Graham, Okl.Cr., 366 P.2d 774, 777; McDuffy v. State, 6 Md.App. 537, 252 A.2d 270, 271; Annotation, 24 A.L.R.3d 986, 997-998.
In McDuffy v. State, supra, the defendant maintained that since § 142 (False Pretenses), Md.Code Art. 27, related to misuse of credit cards the legislature thereby intended to limit prosecutions for such misuse and that the credit receipt could not be the subject of a forgery. The court there held, 252 A.2d at 272:
We agree with that reasoning and here decline to accept the thesis of defendant. As this court observed in State v. Cantrell, 64 Wyo. 132, 186 P.2d 539, 542, repeals by implication are not favored, and while statutes may be repealed by implication, this occurs only if a later statute is so repugnant to the earlier one that the two cannot stand together or if the whole subject of the earlier statute is covered by the later one having the same object, and which was clearly intended to prescribe the only rules applicable to the subject.
Peripherally we note that defendant argues ...
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Peterson v. State
...defense of double jeopardy should be raised by motion before trial pursuant to Rule 16, W.R.Cr.P., otherwise it is waived. Hutchins v. State, Wyo.1971, 483 P.2d 519. The defendant did not file such a motion until March 28, 1977, and it was argued on the date set for trial about two weeks la......
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Taylor v. State
...defendant rights: We have held that where the defendant did not raise the defense of double jeopardy, it was waived. Hutchins v. State, Wyo., 483 P.2d 519 (1971); and Peterson v. State, Wyo., 586 P.2d 144 (1978). A Wyoming defendant may knowingly waive his right to refuse to testify on the ......
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Snow v. State
...at 699; and Davila v. State, 831 P.2d 204, 205-06 (Wyo. 1992), with Taylor v. State, 612 P.2d 851, 861 (Wyo. 1980) and Hutchins v. State, 483 P.2d 519, 521 (Wyo.1971). The question has only been raised tangentially in this case by the statement of differing standards of review by the partie......
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Alcala v. State
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