State v. Selig, 5411

CourtUnited States State Supreme Court of Wyoming
Citation635 P.2d 786
Docket NumberNo. 5411,5411
PartiesThe STATE of Wyoming, Plaintiff, v. Ronald SELIG, Defendant.
Decision Date29 October 1981

Page 786

635 P.2d 786
The STATE of Wyoming, Plaintiff,
Ronald SELIG, Defendant.
No. 5411.
Supreme Court of Wyoming.
Oct. 29, 1981.

Page 787

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, Allen C. Johnson, Senior Asst. Atty. Gen., and Nancy G. Hinckley, Big Horn County and Pros. Atty., for plaintiff.

Richard H. Honaker, Director, Wyoming Public Defender Program, and John V. Lake, Jr., Asst. Public Defender, for defendant.

Before RAPER, THOMAS, ROONEY and BROWN, JJ., and LIAMOS, District Judge.

ROONEY, Justice.

Upon application of the Attorney General, 1 this court allowed the filing of a bill of exceptions under the provisions of §§ 7-12-102 to 7-12-105, W.S.1977. The bill of exceptions

Page 788

challenges the trial court's refusal to give the lesser-included offense instruction requested by the prosecution at the trial of this matter. The defendant was charged with three counts of first-degree murder of three hunters in the Big Horn mountains. He was tried twice on these charges. During the first trial, presided over by Judge Dixon, the prosecution requested jury instructions on second-degree murder and voluntary manslaughter in addition to instructions on first-degree murder. The instructions on these lesser offenses were refused and the jury was instructed only on first-degree murder and self-defense. The jury could not reach a verdict and a mistrial was declared on September 25, 1980.

On October 6, 1980, the prosecution filed a motion pursuant to Rule 23(d), W.R.Cr.P., for the peremptory disqualification of Judge Dixon and the case was ultimately transferred to Judge Ranck on October 16, 1980. At the second trial, the prosecution requested instructions on the lesser offenses of second-degree murder and manslaughter, and they were given. The jury returned a verdict of not guilty on all counts.

On October 17, 1980, Judge Dixon was presented with a bill of exceptions. He certified it, under seal, to be correct on October 27, 1980, and we allowed it to be filed on November 7, 1980.


Before addressing the substantive issue presented by the bill of exceptions, 2 we must first consider the following two preliminary matters raised by a motion of defendant to strike the bill of exceptions:

1. Was the bill of exceptions signed by a judge who had lost jurisdiction to do so? and

2. Is the matter rendered moot by the fact that instructions on lesser-included offenses were given at the second trial?

The bill of exceptions was approved by Judge Dixon. He presided at the trial wherein the alleged error occurred, but the case had been transferred to another judge at the time he approved the bill of exceptions. The defendant contends that Judge Dixon did not have jurisdiction over the case at the time he approved the bill of exceptions, and that his approval was therefore invalid.

A bill of exceptions is the exclusive means for the prosecution to seek review of an adverse ruling made during the trial. State v. Heberling, Wyo., 553 P.2d 1043 (1976); State v. Benales, Wyo., 365 P.2d 811 (1961); State v. Ginther, 53 Wyo. 17, 77 P.2d 803 (1938); State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977 (1906). It is now a statutory proceeding, and the statutory requirements must be met. State v. Ginther, supra, and State ex rel. Gibson v. Cornwell, supra. One of the statutory requirements is that the bill "be conformable to the truth." Section 7-12-102, W.S.1977. 3 To meet such requirement, the judge who approves the bill must have knowledge of the facts set out therein.

Page 789

At a time when bills of exception were used in civil actions, we held that a former judge no longer in office was the proper person to approve a bill of exceptions. Such was referred to as a ministerial act. Stirling v. Wagner, 4 Wyo. 5, 31 P. 1032 (1892), reh. denied 4 Wyo. 5, 32 P. 1128 (1893); Gilpatrick v. Perry, 26 Wyo. 538, 188 P. 442 (1920). See Vines v. State, 19 Wyo. 255, 116 P. 1013 (1911).

"But in all such cases, the bill of exceptions is signed nunc pro tunc ; and it purports on its face to be the same as if actually reduced to form, and signed, pending the trial. And it would be a fatal error, if it were to appear otherwise; for the original authority, under which bills of exceptions are allowed, has always been considered to be restricted to matters of exception taken pending the trial, and ascertained before the verdict." Walton v. United States, 22 U.S. 651 (9 Wheat. 288), 6 L.Ed. 182 (1824).

In a later case the Supreme Court ruled that the fact that a bill of exceptions is not dated back to a date during the trial or filed nunc pro tunc as of a date during the trial is at most an irregularity. French v. Edwards, 80 U.S. (13 Wall.) 506, 20 L.Ed. 702 (1872). See also Hunnicutt and Barnes v. Peyton, 102 U.S. 333, 26 L.Ed. 113 (1880).

It is logical to require the approval to be by one with knowledge of whether or not the contents of a bill of exceptions are "conformable to the truth," rather than by one who came into the case at a later date.

In contending that this matter was rendered moot because the lesser-included offense instructions were given at the second trial, the defendant misconceives the purpose of these proceedings. The decision in this matter cannot affect the judgment already rendered in it. Section 7-12-105, W.S.1977. 4 The purpose set forth in that statute is to "determine the law to govern in any similar case" to arise in the future. State v. Rideout, Wyo., 450 P.2d 452 (1969).

All cases arising from bills of exceptions filed by the prosecution in criminal cases are moot from the standpoint of the defendants in such cases. They are not moot with respect to the determination of the specified issues in future cases. The fact that the issue was resolved in a different and contrary fashion by each of two judges in this case reflects the desirability to establish a positive answer to the issue.

" ' * * * A court ordinarily will not entertain an action or proceeding merely for the purpose of passing on a moot question or abstract proposition, unless * * * the determination of such question or proposition is necessary to the disposition of an actually pending controversy, or unless some question of general public interest is involved.' " (Emphasis added.) Morad v. Wyoming Highway Department, 66 Wyo. 12, 203 P.2d 954 (1949), citing 1 C.J.S. Actions § 17.

In Eastwood v. Wyoming Highway Department, 76 Wyo. 247, 301 P.2d 818 (1956), this court ruled that the constitutionality of a statute was of sufficient public interest and importance to merit a full discussion by the Supreme Court even though the particular case before the court was moot.

The bill of exceptions was here approved by the proper judge, and the issue presented by it was not rendered moot by the fact that the lesser-included offenses instructions were given in the second case.


Rule 32(c), W.R.Cr.P., which is identical to Rule 31(c), F.R.Cr.P., specifically authorizes a jury to consider lesser-included offenses:

"The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense."

The purpose of this rule is to "aid the prosecution where its proof failed to make out all of the elements of the offense

Page 790

charged." 8A Moore's Federal Practice-Criminal Rules, § 31.03(1). See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). But it has also become "beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal." Beck v. Alabama, supra, 100 S.Ct. at 2387; 8 A Moore's Federal Practice, supra, Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); 2 Wright, Federal Practice and Procedure: Criminal, § 515, n. 54.

One test for determining whether the prosecution or defense is entitled to a lesser-included offense instruction 5 is set out succinctly in United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir. 1980), cert. denied 446 U.S. 967, 100 S.Ct. 2947, 64 L.Ed.2d 827 (1980):

"This Court has held that a defendant is entitled to a lesser-included offense instruction when the following five elements are present: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence that would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense, and (5) there is mutuality, i.e., a charge may be demanded by either the United States or the defense. (Citation.)"

These same conditions have also been recognized in United States v. King, 567 F.2d 785 (8th Cir. 1977), cert. denied 435 U.S. 945, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978); United States v. Whitaker, 447 F.2d 314, 317 (D.C.Cir.1971); and United States v. Thompson, 492 F.2d 359 (8th Cir. 1974). The conditions provide guidelines from which a determination can be made as to whether or not the evidence would permit the jury rationally to find the defendant guilty of the lesser offense but not guilty of the greater and whether or not the defendant and prosecution had fair notice of such probability. If so, the lesser-included offense instructions would be proper.

All of these conditions are satisfied in this case. The request by the prosecution for instructions on the lesser-included offenses of second-degree murder and manslaughter was timely. Compliance was had with Rule 8 of the Uniform Rules for the District Courts of the State of Wyoming. 6

The elements of the lesser offense of manslaughter 7 are identical to part...

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    ...murder as here is charged, there are lesser-included offenses in that the elements overlap. That was explained in State v. Selig, Wyo., 635 P.2d 786, 790-791 (1981): "The elements of the lesser offense of manslaughter are identical to part of the elements of murder in the second degree, and......
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    ...not having to do a great deal of responsive research since he and Chief Justice Raper (now retired) have done it for me in State v. Selig, Wyo., 635 P.2d 786 (1981) and State v. Heberling, Wyo., 553 P.2d 1043 (1976). In State v. Selig, supra, 635 P.2d at 788, where the State sought review o......
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