Pike v. State, 4040
| Decision Date | 17 April 1972 |
| Docket Number | No. 4040,4040 |
| Citation | 495 P.2d 1188 |
| Parties | Raymond PIKE, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
James R. McCarty, Casper, for appellant.
Clarence A. Brimmer, Atty. Gen., and Michael W. McCall, Special Asst. Atty. Gen., Cheyenne, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN, and GUTHRIE, JJ.
Raymond Pike was charged as an accessory before the fact in the forgery of a check for thirty-five dollars drawn on the First National Bank of Casper and purporting to be signed by D. E. Leggett on one of his printed check blanks. Defendant waived a jury and after trial was found guilty by the court. He has appealed, charging that the evidence if proving anything shows him to be guilty as a principal rather than as an accessory before the fact; his wife was called by the State as a witness against him; the State's case was based upon the testimony of one John Oien, an alleged accomplice; the date of the offense was not proved; there was insufficient evidence to justify conviction; and that he had been denied a speedy trial.
The circumstances leading up to the prosecution in brief are that a suitcase containing a number of Leggett's blank checks was stolen from his truck in March of 1970 and that when his cancelled checks came back from the bank he discovered the one for thirty-five dollars, here in issue, made payable to Raymond Pike with a notation, 'adv. on wages,' endorsed by Ray T. Pike and Geraldine Pike, and cashed at Branen's Food Market in Casper. Leggett went to defendant's home, asked him about the situation, and was told by defendant that he had received the advance from "the guy that signs the checks," and that he had given it to his wife to buy groceries.
Defendant later gave the officers two conflicting statements regarding the matter, in both of which he admitted the endorsing and cashing of the check, one version saying that the check had been written to him by Johnny Oien and that he had given it to his wife who cashed it at the grocery store.
Defendant in arguing here that if the evidence proved anything at all it showed that he was guilty as a principal rather than as an accessory, cites State v. Weekley, 40 Wyo. 162, 275 P. 122, 64 A.L.R. 420, for the rule that a person present during the occurrence of a felonious act is a principal to that felony and concludes therefrom because of this rule the concepts of principal and accessory before the fact are mutually exclusive so that in the present case there was no proof of the crime charged. In this he reads more into the statement in the Weekely case than is justified; but more importantly, he overlooks the well established principle that a defendant may be both an accessory before the fact and a principal. Commonwealth v. Parmer, 364 Pa. 11, 70 A.2d 296, 297; 22 C.J.S. Criminal Law § 90, p. 269. The contention is without merit.
When defendant's wife was called by the State as a witness, he objected on the grounds of the marriage and her consequent incompetency, which objection was overruled. He now charges this as error, making the bald assertion, without more, that this is prejudicial error in the light of § 1-142, W.S.1957 (1971 Cum.Supp.). 1 In effect he is insisting that the mere testifying over obejction by the spouse is prejudicial error per se. Since he cites no authority and makes no effort to substantiate his position, we must assume that no authority exists. Drummer v. State, Wyo., 366 P.2d 20, 26. Moreover, a scrutiny of the record discloses that the testimony of the wife on direct examination was most meager and added nothing to the evidence before the court, including the admissions of defendant, made orally to Leggett and in writing to the officers and already introduced in evidence, that defendant had given his wife the check and she had gone to the grocery, signed, and cashed it. Thus there was no prejudicial error in receiving her testimony. State v. Dixson, 80 Mont. 181, 260 P. 138; Hembree v. Commonwealth, 210 Ky. 333, 275 S.W. 812; 24 A C.J.S. Criminal Law § 1907, p. 1046; 2 and see Schneble v. Florida, 405 U.S. --, 92 S.Ct. 1056, 31 L.Ed.2d 340 (argued January 17-18, 1972-decided March 21, 1972).
It is also urged that the conviction in this instance being supported only by the testimony of the accomplice John Oien could not be sustained, but we are unable to agree for two reasons, first, there was in addition to...
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Engberg v. Meyer
...prosecuted was such a special wrong and personal offense against his wife as justified her being permitted to testify. In Pike v. State, 495 P.2d 1188 (Wyo.1972), the court recognized that it would be error per se, if the husband objected, to permit a wife to testify when called by the Stat......
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