Whiteley v. State, 3461
| Citation | 418 P.2d 164 |
| Decision Date | 15 September 1966 |
| Docket Number | No. 3461,3461 |
| Parties | Harold WHITELEY, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | United States State Supreme Court of Wyoming |
Richard V. Thomas, Cheyenne, for appellant.
Dean W. Borthwick, Deputy Atty. Gen., and Lawrence E. Johnson, Asst. Atty. Gen., Cheyenne, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.
Defendant was tried by a jury upon an amended information, charging the unlawful breaking and entering of a locked and sealed building in violation of § 6-130, W.S.1957, and alleging, pursuant to the Habitual Criminal Act, §§ 6-9 to 6-11, W.S.1957, three prior convictions in this State of felonies. The jury found him guilty of breaking and entering and affirmatively answered special interrogatories concerning the three prior felony convictions. Defendant was then sentenced by the court for one to ten years on the breaking and entering charge and for life under the habitual criminal charge, the sentences to run concurrently. He appeals, arguing that his conviction cannot stand for four reasons:
1. The information was amended in a matter of substance without obtaining leave of court;
2. He was tried upon an amended information without being arraigned or afforded an opportunity to enter a plea;
3. The court abused its discretion in allowing a witness to testify against him in violation of an exclusionary ruling by the trial court; and
4. The court admitted into evidence certain items of property obtained by an unlawful search of defendant's automobile.
There is no disagreement concerning the salient facts, which are recited by the defendant substantially as follows: On November 23, 1964, certain business establishments in Saratoga were broken into, including the Rustic Bar and Shively's Hardware, the offenses being investigated by the Carbon County Sheriff, who, acting on a tip, the next day signed a complaint charging defendant and another with breaking and entering the building identified as the Rustic Bar. This complaint was made before a justice of the peace at approximately 11:30 a. m. on the 24th, and a warrant issued. 1 After the investigation, the sheriff put out a state item on the radio to pick up two suspects of the breaking and entering, defendant and another. The message went to the network at Casper and was transmitted over the State, received by the Albany County Sheriff's Office and communicated to the Laramie Police Department, the message giving names and descriptions of the two persons and advising the type of car probably being driven and amount of money taken, including certain old coins with the dates. 2 Late at night on November 24, a Laramie patrolman, in reliance on the information in the radio item, arrested the defendant and his companion. At the time, the patrolman had no warrant for defendant's arrest nor search warrant. The officer together with a deputy sheriff, who had come up in the meantime, searched the car and removed a number of items introduced in evidence, including tools and old coins, identified at the trial as taken from Shively's Hardware. On the next morning, defendant was taken to Rawlins and a new complaint and warrant were issued for the breaking and entering of the hardware store and defendant was bound over and later tried.
The first two points of claimed error should be considered together. It is true that there is no notation upon the amended information nor no separate statement of the judge's reciting the arraignment of defendant. However, the judgment and sentence does specifically recite this in the following words, 'said Defendant having heretofore been duly arraigned and having been informed by the Court of his constitutional rights and said defendant having entered a plea of not guilty to the crimes herein charged, to-wit: Breaking into a Locked or Sealed Building and to three separate counts of previous convictions under the habitual criminal act of the State of Wyoming.' Such recitation in the judgment must be accepted as true, and cannot be attacked peripherally, by insinuation or by any claimed omission of matters concerning the arraignment. The presumption is that a judicial record speaks the truth. State v. Holm, 67 Wyo. 360, 224 P.2d 500, 512. This court made some extensive analysis of such principle in the Holm case, applying this rule to stenographic notes, and of course, it would apply even more positively to the statement of the court in the judgment. We hold, therefore, that the record shows defendant to have been arraigned on the amended information, and accordingly, there exists no error in that aspect of the case. Neither do we find that there was any error because of the contention that the information was amended in a matter of substance without obtaining leave of court. The case of State v. Knight, 143 Mont. 27, 387 P.2d 22, cited by defendant, is not helpful because there following the amended information there was no plea made by defendant and the court proceeded immediately to trial, while here the amended information was made several months before the trial and the defendant, according to the records of the court, was arraigned on the amended information and thereafter proceeded to trial, while represented by counsel, without raising any question concerning the propriety of the amended information. In so doing, he waived any right to attack the amendment. State v. Mares, 61 N.M. 46, 294 P.2d 284, 286; White v. People, 79 Colo. 261, 245 P. 349, 351; 42 C.J.S. Indictments and Informations § 310.
As to the asserted violation of the exclusionary ruling, the circumstances according to defendant were these: At 9:30 a. m., May 20, 1965, the defendant took the stand and testified with respect to his defense of an alibi, and among other things, that on November 23, 1964, he left Rawlins to return turn to Cheyenne at 6 p. m., 7 p. m., or 7:30 p. m. The State then called Leonard Russell Marion and Whiteley objected to the witness's testifying on the ground that the montion to exclude had been granted and Marion had been present that day during the trial. The county attorney explained that he had not known he would need Marion as a witness until after Whiteley had testified, and upon this explanation, defendant's objection was overruled and Marion testified that he had seen the defendant in Rawlins between 8 p. m. and 8:30 p. m. on November 23, 1964.
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