Oldham v. State

• Citation: 534 P.2d 107
• Decision Date: 23 April 1975
• Docket Number: No. 4436,4436
• Parties: George Earl OLDHAM, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 107

534 P.2d 107

George Earl OLDHAM, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4436.

Supreme Court of Wyoming.

April 23, 1975.

Rehearing Denied June 4, 1975.

Edward P. Moriarity and Terry W. Mackey of Urbigkit, Moriarity, Halle & Mackey, Cheyenne, for appellant.

David B. Kennedy, Atty. Gen., and David A. Kern, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK and THOMAS, JJ.

GUTHRIE, Chief Justice.

Appellant here, defendant below, was convicted of grand larceny, involving the theft of eleven battery cells on July 11, 1971, near Borie, Wyoming, in violation of § 6-132, W.S.1957, and was sentenced to a term of not less than two nor more than four years. It is from that judgment and sentence that he prosecutes this appeal.

Appellant raises three points as the basis for a reversal, asserting that the trial court erred in not giving certain instructions which were tendered, that the evidence was insufficient to sustain the conviction, and that the argument of the State was improper and prejudicial.

INSTRUCTIONS

Appellant contends that the trial court erred in refusing his instruction on petit larceny as a lesser and included offense and makes sole reliance upon Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844. This case is clearly inapplicable upon its factual posture. In Keeble the question presented was whether the trial court should have instructed upon a lesser included offense. The government did not contend that under the facts in the record such an instruction on the lesser included offense would not have been proper and conceded that it would have been if the defendant had not been an Indian, and that under the Federal statutory scheme the jurisdiction as to the lesser included offense was not in the trial court but reserved to the tribe. The rule set out in Keeble recognized the necessity of evidence which would allow a jury to rationally find such offense to entitle a defendant to such instruction which proposition the appellant herein apparently does not deny. He bases his argument upon the testimony of the witness Bedlan, who when speaking in context of salvage value said that if anyone were to try to sell the batteries they would be worth hardly anything. Bedlan had testified without qualification that the batteries were worth around $40 per cell, being $440 for the eleven cells, although the price therefor has now increased approximately $10 per cell.

The test of value as an element of the crime of larceny is the value of the goods at the time and place where they are taken. Husten v. United States, 8 Cir., 95 F.2d 168, 171; Eaton v. Commonwealth, 235 Ky. 466, 31 S.W.2d 718; State v. Hayes, 187 Neb. 325, 190 N.W.2d 621, 622; Sadler v. State, 84 Okl.Cr. 97, 179 P.2d 479, 481. The only testimony we find as directed to this lesser value is the testimony of Bedlan as to the salvage value of the cells developed on cross-examination and the writer finds of interest and of some applicability a quote from Eaton, supra, that the offense would not be reduced by smashing a machine so as to reduce its value to that of old iron. See further 52A C.J.S. Larceny § 118, p. 619, which suggests such evidence is inadmissible. The rule in this state is clear that the trial court should only give such instructions as arise from the evidence and that when the evidence shows that the defendant is either guilty or not guilty of the higher grade of the offense, the court is not required to instruct on the lesser offense, Ross v. State, 16 Wyo. 285, 93 P. 299, 303, rehearing denied 94 P. 217; State v. Gonzales, 46 Wyo. 52, 23 P.2d 354. We are familiar with no case in this jurisdiction which has applied this rule to larceny cases, but there is no reason why the same general principle should not be applied. It is applied to larceny cases in other jurisdictions where it has been held either improper or error to instruct on petit larceny when there is only evidence which would sustain a conviction for grand larceny, Baker v. State, Okl.Cr.App., 487 P.2d 966, 967-968; State v. Smith, Mo., 394 S.W.2d 373, 374-375; State v. Lombardo, 104 Ariz. 598, 457 P.2d 275, 278; State v. Gray, 152 Mont. 145, 447 P.2d 475, 479.

Appellant asserts as error the trial court's failure to give Instruction O, which was as follows:

'You are instructed that the testimony of a witness who has been granted immunity, or any witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should always be considered with caution and weighed with great care.'

Appellant alleges that because Ulmer had testified that he had committed a crime in Wyoming for which he was granted immunity and also immunity for certain acts in Colorado, as was Johnson, it was error not to so instruct the jury. This instruction mentions neither Johnson nor Ulmer, and does not assert they were accomplices, nor 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 raised was the propriety of an instruction affecting an accomplice's testimony which had been given. We do not consider it applicable to this case. ¹ While this court has not directly decided this question, we did hold in a rape case, Strand v. State, 36 Wyo. 78, 252 P. 1030, 1033, that usually questions of the credibility of witnesses should be left to the jury, with the customary instruction on the subject, and that it was not necessary in that case to instruct upon the proposition that the jury should examine the uncorroborated testimony of a prosecutrix with great caution, although it was suggested that the same might be discretionary with the court. This view was approved in the case of State v. Boner, 42 Wyo. 36, 288 P. 13, 15. As in the Boner case, the jury in the instant case was instructed that they were the sole judges of the credibility of the witnesses and the weight to be given to their testimony. They were further instructed they should take into consideration 'their means of knowledge of the facts testified to, the interest, if any, which any witness may have in the outcome of this trial, the prejudice or motives, or feelings of revenge, if any, which have been shown by the evidence,' which contains the elements of the instruction mentioned in Boner. An instruction of the type tendered by defendant has been held to be improper, as being an invasion of the province of the jury, People v. Litle, 85 Cal.App. 402, 259 P. 458, 460; People v. Ramirez, 95 Cal.App. 140, 272 P. 608, 609; State v. Oliphant, 128 Mo.App. 252, 107 S.W. 32, 35-36; Pruitt v. State, 22 Ala.App. 353, 115 So. 698, 700; State v. Roberts, 95 Kan. 280, 147 P. 828, 835; 23 A C.J.S. Criminal Law § 1175, p. 455. It is our view that if we are to properly honor the recognized principle that the jury is the sole judge of the credibility of the witnesses and the weight of their testimony, it was not error to refuse to give such instruction, particularly when both of the witnesses to whom this might be applicable were exposed to thorough cross-examination and the fact of their immunity and interest in the case was clearly before the jury.

SUFFICIENCY OF THE EVIDENCE

Although appellant raises this directly in his brief, there is no separate argument directly applicable thereto, nor are authorities cited in connection with this proposition. However, we will shortly examine this contention because it is interspersed and intertwined in the arguments upon the two other points raised. His brief here seeks to incorporate his arguments made and authorities cited to the trial court by way of brief. ² On examination of the oral argument and this brief, it is revealed that his principal point in this connection is that there is no direct proof this defendant was in Wyoming at the time of the theft. The remainder of the argument thereon is directed at the credibility of the testimony of the witnesses Ulmer and Johnson, which is always a matter to be determined by the jury. We have heretofore discussed the effect of the discovery of a defendant in recent possession of stolen property, Orcutt v. State, Wyo., 366 P.2d 690, 692; State v. Costin, 46 Wyo. 463, 28 P.2d 782, 783-784. In Orcutt, 366 P.2d at 692-693, we recognized the rule that since possession of stolen property is a 'strong circumstance tending to show guilt, only slight corroborative evidence of other inculpatory circumstances is required.' Here the case of the State is buttressed in addition to this possession by the statements of two other witnesses. There is the testimony of Ulmer that sometime in the spring of 1971, while they were going to Idaho, he and defendant went to the building where the batteries were installed; and after breaking into the building, during a conversation defendant said, 'This is (sic) my new shop batteries. I will come back one of these days and get them,' and that he, Ulmer, took away a padlock which they had cut to secure entrance into the building. This padlock, or an identical one, was found at the time the shop of the defendant was searched and these batteries were recovered. he later testified that sometime later, in July or August, he had seen the batteries in defendant's garage and they were not hooked up, and that defendant had said to him, 'Well, here are the batteries that I told you I was going to get.' Johnson testified that while he was employed by defendant, when he became curious where the batteries had come from, defendant said, 'some place near Cheyenne,' and that thereafter in the spring of 1972, when he was in the area west of Cheyenne with defendant, they had driven by a metal building along the railroad tracks and that defendant had said to Johnson, 'I...