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Duffy v. State3/21/1990
ike ours, so frequently subject to changes in popular feeling and sentiment, was the design of introducing into our Constitution the clause in question."
That court then concluded:
There is no more sacred duty of a court than, in a case properly before it, to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman; and in such cases no narrow or illiberal construction should be given to the words of the fundamental law in which they are embodied.
Ex parte Lange, 85 U.S. at 178, 21 L.Ed. 872.
Additionally, by oath and responsibility, this court cannot abstain from the jurisdiction which has been conferred to sustain the rights guaranteed not only by the United States Constitution, but more immediately by the Wyoming Constitution. As Justice Scalia stated for the United States Supreme Court in New Orleans Public Service, Inc. v. Council of City of New Orleans, ___ U.S. ___, 109 S.Ct. 2506, 2512, 105 L.Ed.2d 298 (1989) (quoting Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821)), "` e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.'"
C. There are a multitude of cases which are quite similar in factual circumstances which involve burglary and robbery. My uneasiness about this case is the observable ineffectiveness of counsel in relinquishing the armor of double jeopardy by the entry of a plea to these duplicated charges. Axiomatic as a result of this decision, aiding and abetting can similarly accommodate the separate criminal offense of conspiracy, since aiding and abetting is in essence conspiratorial in conduct. This majority adds gloss but no real substance by taking one aspect of the transaction and attaching conspiracy to it without any particular rhyme or reason and then separately applies aiding and abetting to another aspect of the same criminal event. This is only done to create two crimes out of one. This observation was also recognized by the Vermont court in State v. Perry, 563 A.2d 1007, 1010 (Vt. 1989):
" he same act may constitute two separate crimes, and, if they are not so related that one of them is a constituent part, or necessary element, in the other, so that both are in fact one transaction, a prosecution and conviction may be had for each offense." State v. Parker, 123 Vt. 369, 371, 189 A.2d 540, 541-42 (1963).
See also State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988), where robbery and larceny could not be divided to create two separately punishable crimes and Vines v. United States, 540 A.2d 1107 (D.C.App. 1988), kidnapping and armed robbery with confinement momentary and co-existence.
This appeal does not require extricating conspiracy from commission of the principal offense for merger or double jeopardy assessment. We have here two inchoate or agglutinative offenses for which the identical evidence was used. Conspiracy and aiding and abetting under Wyoming law are inchoate offenses, drawing criminal responsibility from the categorized offense. No individual can be guilty of a crime of conspiracy unless it relates to the intended commission of a crime and aiding and abetting only denominates a participant for responsibility when the criminal act is committed. Aiding and abetting and conspiracy as applied here are separate characterizations of the same conduct directed to assess separate responsibility for the same criminal misconduct. The penalties in both cases are the same as the designated offense. See W.S. 6-1-304 and 6-1-201.
Within the mass of cases, authority can be
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