Neel v. State, 3715
| Decision Date | 01 April 1969 |
| Docket Number | No. 3715,3715 |
| Citation | 452 P.2d 203 |
| Parties | Glenn NEEL, Robert Broyles, and Richard Broyles, Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Fred Phifer, Wheatland, William S. Padley, Ogallala, for appellants.
James E. Barrett, Atty. Gen., Lynn R. Garrett, Deputy Atty. Gen., Cheyenne, for appellee.
Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.
The three defendants, who come to us as appellants, stand convicted of grand larceny for feloniously stealing 5,000 bushels of wheat. Their principal contention on appeal is that the state's evidence, both at the close of the state's case in chief and at the close of all the evidence, was insufficient to support a verdict of guilty. They suggest the verdict of the jury was the result of passion and prejudice.
Ted Munn, Manager of the Tri-County Elevator in Chugwater, Wyoming, testified he received a telephone call from a person who identified himself as Larry Morgan. The caller stated he was buying grain for Farmer's Elevator Company, Sterling, Colorado. Grain was ordered which was to be picked up by three trucks. As a result of the call, 5000 bushels of wheat at $1.45 per bushel was delivered into three trucks driven by the three defendants.
Larry Morgan testified he did not make the telephone call to Ted Munn; that he did not order any wheat from Munn or Tri-County Elevator Company; that he did not authorize or direct anyone to pick up wheat at Tri-County Elevator Company in Chugwater at any time; and that no grain was received by him or his company from Tri-County.
Attorneys of the attorney general's office point out that defendant Robert Broyles and defendant Glenn Neel testified they did not sign their proper names and instead signed fictitious names on the scale tickets; also that they did not write correct license numbers of the trucks on the tickets. Defendant Richard Broyles testified he was present when the wrong names were signed to the scale tickets.
Of course felonious intent to steal is an essential element of the crime charged against the defendants, and the state has the responsibility of proving such intent by competent evidence. It is apparent from the record in this case that the most damaging evidence against defendants, as far as felonious intent is concerned, is the testimony concerning fictitious names and license numbers.
However, the admissions of defendants pertaining to fictitious names and license numbers came during the case of defendants and not as a part of the state's original case. Except for this evidence, which was supplied during defendants' defense, it is doubtful whether there was substantial evidence of felonious intent.
A motion for directed verdict in favor of defendants was made at the close of the prosecution's case in chief, and it was denied. Thus, we need to decide whether a motion for directed verdict at the end of the state's case is waived when defendants offer evidence in their own behalf. We have so held several times in civil cases. In re Shreve, Wyo., 432 P.2d 271, 273; Marsh v. Butters, Wyo., 361 P.2d 729, 732.
Our review of cases on this point convinces us that the same rule has been universally followed in criminal cases to the same extent as it has in civil cases; and that it can be stated as an accepted principle that, even if the evidence at the close of the state's case is not sufficient to warrant a conviction, when a defendant proceeds with his case, his guilt or innocence will be determined by the evidence as a whole. 23A C.J.S. Criminal Law § 1148, p. 391; 5 Wharton's Criminal Law and Procedure, § 2073, p. 230, including n. 8 for § 2073, p. 230, 1968 Cum.Supp.
Typical of the cases holding to this effect are: State v. Thomas, 52 Wash.2d 255, 324 P.2d 821, 822; State v. Villegas, 101 Ariz. 465, 420 P.2d 940, 941- 942; State v. Weis, 92 Ariz. 254, 375 P.2d 735, 739-740; State v. Lamphere, 233 Or. 330, 378 P.2d 706; State v. Mudge, 69 Wash.2d 861, 420 P.2d 863; State v. Nelson, 63 Wash.2d 188, 386 P.2d 142, 143; and State v. Brubaker, 62 Wash.2d 964, 385 P.2d 318, 319.
The evidence we have referred to did constitute substantial evidence of felonious intent, and we must hold the evidence of guilt sufficient to support the verdict and judgment in this case. Having so held, we would have no basis for accepting defendants' claim that the...
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