Mullin v. State
| Decision Date | 24 January 1973 |
| Docket Number | No. 4076,4076 |
| Citation | 505 P.2d 305 |
| Parties | Mike MULLIN, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Edward P. Moriarity, of McClintock, Mai, Urbigkit & Morarity, Cheyenne, for appellant.
Clarence A. Brimmer, Atty. Gen., Bert T. Ahlstrom, Jr., Spec. Asst. Atty. Gen., Cheyenne, Frank J. Jones, County Atty., Wheatland, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.
This is an appeal from a conviction of the defendant in the district court of Platte County, Wyoming, sitting with a jury, of a charge of being an accessory before the fact to grand larceny. The amended information charged that the defendant did unlawfully and feloniously counsel and encourage one Richard Anderson to commit the felony of grand larceny in violation of § 6-14, W.S.1957 (), and § 6-132, W.S.1957 (Grand larceny). The jury found the defendant guilty as charged, and the judgment and sentence of the trial court was that the defendant-who was then 17 years of age-be imprisoned and confined in the Wyoming State Industrial Institute for a period of not less than 15 months and not more than 18 months.
The facts of the case for the most part are not in dispute. The defendant, who was 17 years of age on November 20, 1970, the date of the larceny, lived at Wheatland, Wyoming. At about 5 p. m. on that day he invited three of his friends to view a pickup-camper which he had recently acquired and which was parked on a city street in Wheatland. While they were at the camper they observed two men walk by, one carrying a case of whiskey and one a case of beer, which the men placed in a truck belonging to one of them. The defendant and his friends discussed taking the whiskey. The defendant then took one of the boys home, and he and the other two boys returned to a cafe where they had been prior to going to look at the defendant's pickup-camper. Another acquaintance of theirs, Richard Anderson, came over to their booth and one or more of the three told him of the case of whiskey. The defendant said he only told Anderson where the truck was parked, but that Pat Wilhelm encouraged Anderson to steal the whiskey, under which plan Anderson and Wilhelm would each receive one-half. Anderson testified that the defendant did no more than tell him where the truck was parked, but Wilhelm testified that both he and the defendant encouraged Anderson to commit the theft. The parties then left the cafe and apparently went their respective ways.
Later that same day Anderson took the case of whiskey from the truck and gave eight of the twelve bottles to Wilhelm. That evening Wilhelm and three other young men went to a house where he once lived, consumed some of the whiskey, and stayed there until 7 a. m. the next morning. Later that day Wilhelm gave the defendant three bottles of the stolen whiskey. Law enforcement officials made inquiry of the defendant concerning the whiskey and he showed them where he had placed the three bottles he had received. The defendant was charged in justice of the peace court with being in possession of alcoholic beverages while under the age of 21 years and was found guilty. 1
Thereafter, on December 4, 1970, the deputy county and prosecuting attorney filed a petition in the juvenile court alleging that the defendant had received stolen property, knowing the same to have been stolen. 2 On or about February 18, 1971, the defendant through his attorney filed motions for a bill of particulars, suppression of evidence, and for dismissal.
On March 1, 1971, a criminal complaint was filed charging the defendant with feloniously counseling and encouraging Richard Anderson to commit grand larceny in violation of § 6-14, W.S.1957. 3
On April 13, 1971, the prosecutor filed a motion to dismiss the petition in juvenile court, and on that same day an order was entered dismissing the petition. On September 30, 1971, the matter came on for trial, and on October 1, 1971, the jury found the defendant guilty as an accessory before the fact.
On October 12, 1971, the defendant filed a motion for judgment of acquittal, or, in the alternative, a motion for a new trial, which motion was overruled by the trial court. On November 12, 1971, judgment and sentence was made by the court and the defendant filed a notice of appeal. On December 10, 1971, notice of appearance of counsel was filed by Edward P. Moriarity, the defendant having been represented in the juvenile case and the criminal action by Mr. Phil White, Jr. of Cheyenne.
The defendant in his brief enumerated seven points upon which he relied for reversal:
1. Appellant contends that due to the fact he was convicted in the justice of the peace court for substantially the 'same offense,' the reprosecution in district court constituted double jeopardy.
2. The district court in Platte County did not have jurisdiction over this matter, since it was originally instituted in the juvenile court of Platte County and was improperly transferred from juvenile court into district court without due process.
3. The court erred in failing to suppress the defendant's statement given to the county attorney outside the presence of his parents and while he was under arrest as a juvenile, since these statements are not admissible in later adult proceedings.
4. Appellant contends that the court erred in allowing the State to question alleged co-participants about their conviction and sentencing for charges which grew out of the same factual situation.
5. Appellant was denied due process and a fair trial because of erroneous instructions which were given and because of a refusal of instructions requested by defense counsel.
6. The improper and inflammatory statements made by the county attorney in his closing argument, resulted in the denial of due process and a fair and impartial trial to the appellant.
7. The court erred in failing to grant the defendant's motion for acquittal and in the alternative, a motion for new trial.
The defendant argued that he had been previously convicted of substantially the 'same offense' in justice of the peace court and he could not be tried again in the district court. The 'minor in possession' offense is not the same offense as 'accessory before the fact' nor does it merge into or become an included offense. In Loddy v. State, Wyo., 502 P.2d 194, we discussed the question of the same or similar offense and set forth a test to determine whether there was a merger or if one offense was included in another. There we said that one offense is necessarily included in another if it is impossible to commit the greater without also having committed the lesser. Here it is obvious the defendant could have been an accessory before the fact without having been a minor in possession.
The defendant argued that the district court did not have jurisdiction because the action was originally brought in the juvenile court, and the matter was improperly transferred from juvenile court to the district court without due process.
He contended that under the Juvenile Court Act then in effect there was no provision concerning the procedure for the transfer of a case from juvenile court to the district court. 4 Actually, in this case there was not a transfer as such-there was a new criminal action filed in the district court and the juvenile proceedings were dismissed.
In any event, the pertinent portion of the 'Juvenile Court Act' of 1951, then in effect, provided for concurrent jurisdiction of the juvenile court and the district court, and for dismissal, assignment to the district court, and termination of jurisdiction by the juvenile court. Section 14-101, W.S.1957, C.1965, said the legislature intended the provisions to be cumulative and stated:
'Nothing herein contained shall be construed as repealing or altering the other procedures now provided by law for criminal cases involving a child nor cases brought under other statutes provided for disposing of vicious or incorrigible children as in such other statutes defined nor adoption proceedings, it being the legislative intention to make available the procedures herein provided in addition to the other methods and procedure by law provided for persons made subject to the procedures of this act (§§ 14-97 to 14-115). * * *'
Section 14-109(d), W.S.1957, C.1965, set forth the jurisdiction of the juvenile court as follows:
'The jurisdiction of the court shall terminate upon the child's twenty-first birthday, provided that the court may dismiss the petition, return or assign the case to the district court or otherwise terminate its jurisdiction at any time. * * *'
The defendant reasoned that the trial court should have followed the procedures as outlined in the present Juvenile Court Act wherein § 14-115.38 provides that the juvenile court may, in its discretion at any time prior to the adjudicatory hearing, order that a transfer hearing be held to determine whether the matter should be transferred to another court having jurisdiction of the offense charged for criminal prosecution as by law provided. However, the Juvenile Court Act of 1971 was not then in effect. The effective date of the Act pursuant to § 8-22, W.S.1957, was 90 days after adjournment of the legislature, making the effective date May 21, 1971. Section 14-115.3 states:
'* * * This act (§§ 14-115.1 to 14-115.44) shall not apply retroactively such as to invalidate proceedings had under the Juvenile Court Act of 1951, but shall apply to further proceeding in juvenile matters pending on the effective date hereof.'
The defendant cited several cases which he said stood for the proposition that once a case was filed in juvenile court it could not be transferred to another court without certain procedural safeguards. Among the cases cited was Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, ...
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