Ross v. State
| Citation | 93 P. 299,16 Wyo. 285 |
| Parties | ROSS v. STATE |
| Decision Date | 09 March 1908 |
| Court | Wyoming Supreme Court |
Original Opinion of January 20, 1908, Reported at: 16 Wyo. 285.
Rehearing denied.
ON PETITION FOR REHEARING.
The plaintiff in error has filed a petition for rehearing.
It is here urged that the court misconstrued the evidence when it said in the opinion filed that the evidence tended to show that the bench to which the defendant took the little girl was out of sight of the little boys who were playing in that vicinity. The mother of the little girl so testified, and it may be that this statement was untrue or that she was mistaken. But even so the jury may well have inferred that the defendant felt secure though but a short distance from where he could have been seen by some little boys aged 8, 6 and 3 years, who were at play and where no adult was near to intercede and prevent him from carrying out his purpose. The question of the defendant's guilt upon the whole evidence was one for the jury.
It is also complained that the court failed to pass upon the competency of the witness, Irvin Harrison. The case was submitted on briefs, and one of the questions argued in the briefs was the sufficiency and weight of the evidence and did not go to the competency of this witness. The question may, therefore, be deemed to have been waived (Horn v. State, 12 Wyo. 80, 73 P. 705) and could not have been raised for the first time on petition for a rehearing. (Bank v. Ludvigsen, 8 Wyo. 230, 56 P. 994; Boswell, Adm'r., v. Bliler, 9 Wyo. 277, 62 P. 350.) But even if it had been discussed in the briefs this court could not have considered it, for it was not specifically assigned as a ground in the motion for a new trial, nor is it here assigned as error. (Hogan v. Peterson, 8 Wyo. 549, 59 P. 162; Wilson v. O'Brien, 1 Wyo. 42; Wolcott v. Bachman, 3 Wyo. 335, 23 P. 72; Boulter v. State, 6 Wyo. 66, 42 P. 606; Casteel v. State, 9 Wyo. 267, 62 P. 348; Todd et al. v. Peterson, Adm'r., &c., 13 Wyo. 513, 81 P. 878; Delaney v. State, 14 Wyo. 1, 81 P. 792; Koppala v. State, 15 Wyo. 398, 89 P. 576.)
No other question is here presented which was not discussed in the opinion filed.
Rehearing denied.
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Jahnke v. State
... ... State, Wyo., 534 P.2d 107, 109 (1975). See also Stamper v. State, supra, 662 P.2d at 92; State v. Selig, supra, 635 P.2d at 791; Neilson v. State, Wyo., 599 P.2d 1326 (1979), cert. denied 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980); and Ross v. State, 16 Wyo. 285, 93 P. 299, reh. denied 94 P. 217 (1908). In State v. Selig, supra, 635 P.2d at 791, the significance of the evidence in a determination with respect to the giving of a lesser-included offense instruction was said to be: ... "The third and fourth conditions prerequisite to ... ...
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