Loddy v. State
| Decision Date | 25 October 1972 |
| Docket Number | No. 4070,4070 |
| Parties | Delbert D. LODDY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Robert Van Sciver, Salt Lake City, Utah, LaVoy O. Taylor, Cokeville, for appellant.
C. A. Brimmer, Atty. Gen., Jerome F. Statkus, Special Asst. Atty. Gen., Cheyenne, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.
This is an appeal from a conviction for grand larceny and destruction of telephone lines. The defendant was charged with having stolen certain copper telephone wire by cutting and removing the wire from the poles of Mountain States Telephone and Telegraph Company contrary to the statutes concerning larceny and malicious destruction of telephone lines. The jury found the defendant guilty of both felony charges, and the trial court in entering judgment and sentence ordered that defendant be imprisoned for a term of not less than three nor more than four years for the crime of grand larceny, and for not less than two years and not more than three years for the crime of malicious destruction of telephone lines, said sentences to run consecutively.
At the trial one of the State's witnesses, Danny Bogue, testifid that on the evening of December 29, 1970, he and the defendant proceeded in the defendant's 1969 G.M.C. pickup to Creston Junction in Sweetwater County, Wyoming. They drove along a road next to telephone poles and the defendant, who was driving, stopped, put on climbing devices, climbed the poles and cut the telephone lines. The parties rolled up the wire and loaded it into defendant's pickup. At about 8 p. m., upon seeing headlights, the parties got back into the pickup and drove in the opposite direction from the oncoming headlights. They left the road and drove through grazing lands, and in attempting to get back on the roadway became stuck in deep snow in a ditch. They attempted to free the vehicle by jacking it up and placing the coils of wire under the wheels. However, their efforts were in vain, and after about 45 minutes they left the pickup and got a ride into Rawlins with a passing motorist. According to witness Bugue they then checked into a motel in Rawlins at about 9:30 p. m., and the defendant said that the next morning he would report the pickup stolen. Bogue further testified it was the defendant's idea to steal the wire and he was to receive $300 for his part in the theft. The climbing devices defendant used to climb the poles were found in the abandoned pickup and identified by the witness.
Both the defendant and witness, Danny Bogue, were originally charged in the same information but separation was ordered, the charges against witness Bogue were dismissed, and he was granted immunity for his testimony as a State's witness. The jury was fully advised of dismissal and immunity during direct and cross-examination of the witness.
The defendant's defense was that Bogue borrowed his pickup and was involved in the alleged theft with some person other than the defendant. He maintained during his testimony that he was in bed in the motel at the time of the crimes.
Mr. Lyle Wolfe, an employee of Mountain States, received notice at about 8 p. m. that there was some trouble with the telephone lines in the area of Creston Junction. He drove to the area and upon arrival observed a vehicle extinguish its headlights. He noticed that the tracks from the pickup had turned off the road, and, upon his return to the traveled portion of the highway, he observed a pickup truck stuck in the snow. He testified that 20 spans of copper wire were missing and he identified the wire found in the abandoned pickup of the defendant as the wire which had been removed from the telephone poles.
Sheriff C. W. Ogburn of Carbon County, former Undersheriff Chris Willis of Carbon County, and Mr. Milton Poteet, Manager for Mountain States, arrived at the scene where the pickup was stuck in the snow at approximately 9:15 p. m. They observed the copper wire in and around the pickup.
E. L. Chapman, a Deputy Sheriff of Sweetwater County, Wyoming, testified that he weighed the copper wire found in and around the defendant's pickup. The 15 coils of copper wire weighed 1,550 pounds. In his official capacity he sold one coil of this copper wire to Rock Springs Hide and Fur for 35cents a pound, and a check made payable to the Sweetwater County Sheriff's office was issued by that company for $30.80 representing 88 pounds of copper.
Harry Weiss, the owner of Rock Springs Hide and Fur, testified that he had bought and sold copper for 44 years. He identified the copper he purchased from Deputy Sheriff Chapman and testified he had paid 35cents a pound for it.
The criminal complaint filed in the district court alleged that defendant on or about the 29th day of December 1970 did unlawfully
'COUNT I
and feloniously steal, take and carry away the personal goods of Mountain States Telephone & Telegraph Company, a Colorado Corporation, having a value of $25.00 and upwards, to-wit: 15 coils of 165 guage (sic) copper telephone line having an approximate value of $821.50 as junk copper, contrary to Wyoming Statutes of 1957, Section 6-132.
'COUNT II
Did unlawfully, feloniously and wilfully (sic) on December 29, 1970 in Sweetwater County, Wyoming displace, remove, injure, or destroy the telephone line belonging to Mountain States Telephone & Telegraph Company, a Colorado Corporation, contrary to Wyoming Statutes of 1957, as amended, Section 37-258.1.'
The defendant in his appeal argued:
1. The trial court did not properly instruct as to the corroboration required for an accomplice's testimony in order to convict;
2. The court committed error by permitting Deputy Sheriff E. L. Chapman and others to testify as to the value of the wire; and
3. The court erred as a matter of law in charging two separate substantive offenses out of one criminal action.
Counsel for defendant argued before the trial court that it had an obligation of instructing the jury that there must be corroborating evidence to an accomplice's testimony in order to convict. In his brief the defendant argued that the 'test for corroboration of an accomplice is more than what the Court indicated and the cautionary instruction suggesting that they view the accomplice's testimony with distruct is not sufficient as a matter of law.'
As we said in Filbert v. State, Wyo., 436 P.2d 959 at 960, we have no statute which requires that an accomplice's testimony be corroborated, and we have not held that a conviction may not be...
To continue reading
Request your trial
-
Cook v. State
...the same person at the same time, be coupled in one count, as constituting altogether but one offense." This was followed by Loddy v. State, 502 P.2d 194 (Wyo.1972), cert. denied 414 U.S. 1134, 94 S.Ct. 877, 38 L.Ed.2d 760 (1974) and various other cases. This court then, in State v. Carter,......
-
Brown v. State
...36 S.E.2d 469 (1945); Kutchera v. State, 69 Wis.2d 534, 230 N.W.2d 750 (1975); Phillips v. State, 553 P.2d 1037 (Wyo.1976); Loddy v. State, 502 P.2d 194 (Wyo.1972).2 In Tennessee, the corroboration necessary to support the testimony of an accomplice is "some fact testified to entirely indep......
-
Duffy v. State
...137, 46 L.Ed.2d 102 (1975); Jackson v. State, Wyo., 522 P.2d 1286 (1974); Dorador v. State, Wyo., 520 P.2d 230 (1974); Loddy v. State, Wyo., 502 P.2d 194 (1972), cert. denied 414 U.S. 1134, 94 S.Ct. 877, 38 L.Ed.2d 760 (1974); and State v. Tobin, 31 Wyo. 355, 226 P. 681 The federal case law......
-
Jerskey v. State
...with intent to deliver,' under the doctrine of State v. Tobin, 31 Wyo. 355, 367-368, 226 P. 681, 685 (1924) 16 and Loddy v. State, Wyo., 502 P.2d 194, 197 (1972). 17 The appellant therefore contends that conviction and sentence could have been had on but one of the charges under the merger ......