Miller v. State
| Decision Date | 24 April 1973 |
| Docket Number | No. 4130,4130 |
| Citation | 508 P.2d 1207 |
| Parties | Orville O. MILLER, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Gerald M. Gallivan, Defender Aid Program, Laramie, for appellant.
Clarence A. Brimmer, Atty. Gen., Bert T. Ahlstrom, Jr., Asst. Atty. Gen., and H. J. Arnieri, Law Clark, Cheyenne, for appellee.
Before PARKER, C. J., and McEWAN, GUTHRIE, and McINTYRE, JJ.
The defendant was charged with the crime of robbery 1 alleged to have occurred on August 4, 1971 at Rawlins, Wyoming against the person of John R. Ellis. Commencing on March 21, 1972 the matter was tried in the district court of Carbon County before a jury. On March 23, 1972 the jury informed the court that it could not agree upon a verdict, whereupon the jury was excused. The matter was again tried on April 5, 1972, and on April 7 the jury found the defendant guilty of robbery as charged in the information. Following a presentence investigation and hearing, judgment was entered in which the defendant was sentenced to the Wyoming State Penitentiary for a period of not less than eight years and not more than ten years, from which this appeal was taken.
At the second trial the victim, Ellis, identified the defendant as the one who robbed him and said he had lied at the first trial, having testified that he was extremely drunk and could not identify the people who robbed him although he did recall hearing what he thought were the voices of a woman and a man. (The jury was instructed as to the consideration to be given the testimony of a perjurer.)
The State's principal witness was Garnet Kay Nelson Davis who admitted she had participated in the crime and said she and the defendant had committed the crime. For her testimony for the State this witness was granted immunity.
One of the defendant's contentions was that the accomplice instruction given by the trial court was erroneous. The instruction given was as follows:
'His objection was to the last sentence of the instruction upon the specific ground that the testimony of accomplice is always to be treated with great caution and never like that of any other witness.
There was testimony the defendant was with the victim during the night of the robbery and that he had indicated to others he wanted to rob the victim. However, the only evidence that the defendant had actually committed the robbery was the testimony of the victim, who admitted he had committed perjury at the first trial, and that of Mrs. Davis. The testimony of Mrs. Davis was therefore of crucial significance and if a cautionary instruction was given the jury should have been properly charged.
The court undertook to caution the jury over the defendant's specific objection:
'* * * the defense objects particularly to the last sentence, * * * The specific grounds for this objection are that the testimony of the accomplice is always to be treated with great caution, and such testimony is never to be treated like that of any other witness.'
'The rule of scrutiny * * * applies to the testimony of an...
To continue reading
Request your trial
-
Wheeler v. State
... ... 1 Appellant objected to such refusal. The pattern jury instruction reflects the status of the law on testimony of an accomplice. Ostrowski v. State, Wyo., 665 P.2d 471 (1983); Phillips v. State, Wyo., 553 P.2d 1037 (1976); Miller v. State, Wyo., 508 P.2d 1207 (1973); Pike v. State, Wyo., 495 P.2d 1188 (1972); Filbert v. State, Wyo., 436 P.2d 959 (1968). The issue here does not concern the propriety of the instruction itself, but only whether or not there was evidence to warrant the instruction, i.e., was Witt an ... ...
-
Oldham v. State
...do we understand his contention to be they were accomplices, although the sole authority relied upon is a statement from Miller v. State, Wyo., 508 P.2d 1207, 1208, which enunciates the rule of scrutiny as it is applicable to the testimony of an accomplice. In that case the sole question ra......
-
State v. Beene
...as would be applied in determining the credibility of any other witness. State v. Hale, 231 N.C. 412, 57 S.E.2d 322 (1950); Miller v. State, 508 P.2d 1207 (Wyo.1973); Annot., 4 A.L.R.3d 351-56 (1965). "The jury is to be admonished so that it will not accept the words of an accomplice at fac......