In the Matter of the Application of David M. Goldsmith for a Writ of Habeas Corpus. David M. GOLDSMITH, Plaintiff-Petitioner, v. Lawrence CHENEY, Sheriff of Teton County, Wyoming, Defendant.
No. 3857.
Supreme Court of Wyoming.
April 30, 1970.
468 P.2d 813
James E. Barrett, Atty. Gen., Cheyenne, Richard A. Stacy, Frederic C. Reed, Asst. Attys. Gen., Cheyenne, for defendant.
Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.
Mr. Justice PARKER delivered the opinion of the court.
David M. Goldsmith, charged jointly with three other defendants under
Petitioner was arrested in Teton County, January 19, 1968, upon a fugitive warrant issued from Nevada where he, Ted Linn, Glen Lucas, and Robert Lindblad were all charged with having murdered Robert Stucker and Larry Olinger in Nevada on or about August 22, 1967; petitioner was not in the State of Nevada at the time Stucker and Olinger were killed nor had he been there at any time during 1967 prior to the deaths; following his arrest, petitioner was transferred to the Fremont County Jail in Lander; he unsuccessfully filed habeas corpus proceedings before the district court and later in this court; he was thereafter extradited to Nevada; on May 28, 1968, the State of Nevada filed an information in Lyon County District Court against petitioner containing two counts of murder of Robert Stucker and Larry Olinger; on April 5, 1969, Glen Lucas, likewise charged as codefendant with Goldsmith in the two
“171.070 Conviction or acquittal in another state a bar where jurisdiction is concurrent. When an act charged as a public offense is within the jurisdiction of another state, territory or country, as well as of this state, a conviction or acquittal thereof in the former state is a bar to the prosecution or indictment therefor in this state. (1911 Cr.Prac. § 69; RL § 6919; NCL § 10717.)”
“178.562 * * * 1. An order for the dismissal of the action, as provided in NRS 178.554 and 178.556, shall be a bar to another prosecution for the same offense. * * * ”
Petitioner‘s argued basis for discharge from custody can be summarized as follows:
- The trial judge failed to set out his reasons for denying the petition as is required by
§ 1-817, W.S. 1957 . - Petitioner‘s plea of nolo contendere to the charge of conspiracy in Nevada and the dismissal of the charges against him of murdering Larry Olinger constitute double jeopardy in violation of the Fifth Amendment of the Constitution of the United States; Wyoming must give full faith and credit to the Nevada law which provided that if an order of dismissal is entered in the case it must bar another prosecution for the same offense.
- The acquittal of Glen Lucas as principal constitutes a good defense for Goldsmith to the charge of being an accessory before the fact.
- The criminal complaint charges Ted Linn, Glen Lucas, Robert Lindblad, and petitioner as being accessories before the fact of the murder of Larry Olinger in Nevada in violation of
§ 6-14, W.S. 1957 . This section does not apply to felonies committed outside the State of Wyoming, hence the Teton County District Court has no jurisdiction to try the case.
We find the first three points argued by petitioner to be without merit for reasons which we will list, but the argument is so tenuous as to warrant no more than cursory mention.
1. Although the record from the trial court shows no statement by the court of reasons for disallowance of the writ of habeas corpus as is mandatory under
2. Since petitioner‘s nolo contendere plea in Nevada related to a charge different than that under which he is held in Wyoming, the double jeopardy cannot be an issue. The mentioned clause of the Fifth Amendment, which provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb, being designed to prohibit double jeopardy as well as double punishment, is not properly invoked to bar a second prosecution unless the “same offense” is involved in both the first and second trial. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627, 633 (1966); 22 C.J.S. Criminal Law § 278 (1), p. 719. The same reasoning applies to petitioner‘s argument that Wyoming must give full faith and credit to the Nevada law relating to dismissal of the charge.
3. Even were we to assume for the purpose of discussion that the acquittal of the principal constitutes a good defense, it would be unnecessary to consider any effect Lucas‘s being found not guilty of the murder of Larry Olinger by a Nevada court might have upon the status of Goldsmith under the Wyoming charge since Lindblad was charged in Teton County along with petitioner and so far as the record shows he still stands charged with murder in the State of Nevada and his case has had no disposition.
4. From what has been said, it follows that there is only one real issue presented in the case, that is, whether
“* * * the language ‘any felony’ refers only to felonies committed in Wyoming and not in other states. Since Wyoming has no statute incorporating specific references to felonies committed in other states, the Teton County District Court is without jurisdiction to try the case.
“The Wyoming legislature has the power to incorporate, by reference, offenses of other states into the Wyoming penal statutes. * * * Such incorporation does not follow merely because the legislature has the power to do so. The legislature must not only intend to incorporate by reference, but also must use appropriate language evidencing its intent.”
Counsel for petitioner cites no authorities tending to directly substantiate this position but instead seems to argue that because certain other states have worded their accessory statutes to punish the aiding, abetting, etc., of the commission of a felony “in any state,” “outside the State,” “elsewhere,” and so forth, that such wording is essential. Although the circumstances that the legislatures of numerous other states have seen fit to clarify the question of jurisdiction beyond argument in this technical area of the law may be a commentary upon an oversight by our lawmakers, it falls short of convincing us that Wyoming has no jurisdiction to try an accessory before the fact when the commission of the felony is outside its borders. Analysis of the entire problem indicates to the contrary.
“Forasmuch as the most necessary office and duty of the law is to preserve and save the life of man, and condignly to punish such persons that unlawfully and wilfully murder, slay or destroy men, and also that another office and duty of law is to punish robbers and thieves, which daily endeavour themselves to rob and steal, or give assistance to the same, and yet by craft and cautele do escape from the same without punishment“:
* * *
“IV. * * * be it enacted by authority aforesaid, That where any murder or felony hereafter shall be committed and done in one county, and another person or more shall be accessary or accessaries in any manner or wise to any such murder or felony in any other county, that then an indictment found or taken against such accessary and accessaries upon the circumstance of such matter before the justices of the peace, or other justices or commissioners, to enquire of felonies in the county where such offences of accessary or accessaries in any manner of wise shall be committed or done, shall be as good and effectual in the law, as if the said principal offence had been committed or done, within the same county where the same indictment against such accessary shall be found * * * ”
We inherited this common law and by statute specifically adopted it, thereby making it the background for interpretation of our laws, including
Dismissed.
Mr. Chief Justice GRAY, dissenting.
It is my view that disposition of the question of jurisdiction renders unnecessary discussion of other points raised by the petitioner. The majority, in disposing of the question of jurisdiction, has in my opinion invoked an anachronism of the common law that forms no part of the body of law of this state insofar as it is said to relate to jurisdiction rather than venue. The common-law rule was a rule of necessity that grew out of subtle niceties made in felony cases between principals and accessories before the fact in order that such accessories not present in the jurisdiction where the felony such as murder was actually committed would not go unpunished. That distinction was removed by the legislature of this state both before and after statehood and no recent authority has come to my attention indicating resort to the doctrine under the circumstances presented in this case. The significance of the removal of the distinction lies in the fact that under common law no distinction was made between principals and accessories in cases involving misdemeanors. All participants were considered as principals and could be
Furthermore, if the common-law rule were applicable in this jurisdiction we were obviously in error when we declined to issue a writ of habeas corpus in an original proceeding brought here previously by Goldsmith in Case No. 3699 (unreported). In that case the facts were that Goldsmith, along with Linn, Lucas and Lindblad, was charged by the State of Nevada as a principal for the murder in that state of Stucker and Olinger. One of the points relied upon by Goldsmith was that Nevada had no jurisdiction over Goldsmith inasmuch as he was only an accessory before the fact, and in connection with that point it was stipulated that Goldsmith was not present in Nevada before or at the time of the murders. Nevertheless, we unanimously and summarily rejected that contention, and I think properly so. Clearly Nevada under our law and the law of Nevada had jurisdiction of the entire transaction and of the criminal offenses growing out of that transaction. When Nevada acquired jurisdiction of the persons of the participants therein, which it did, their jurisdiction was complete.
It is also my view that the majority by extending the reach of
I would order petitioner‘s release.