Duffy v. State3/21/1990
affair, and the offender may be indicted as for one combined act in violation of law; and the proof of either of the acts mentioned in the statute and set forth in the indictment will sustain a conviction."
It is completely unjustified to now deny that wisdom by "finding" in what was not and, in the following cases, "reconstructing" what never existed. Without application of a characterization of preciseness of reasoning, what had really happened in Wyoming's early criminal law history limited the prosecution to one charge for one course of events where there was only one victim. Jerskey v. State, 546 P.2d 173 (Wyo. 1976); Dycus v. State, 529 P.2d 979 (Wyo. 1974); Boyd v. State, 528 P.2d 287 (Wyo. 1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975); Jackson v. State, 522 P.2d 1286 (Wyo. 1974); Dorador v. State, 520 P.2d 230 (Wyo. 1974); Loddy v. State, 502 P.2d 194 (Wyo. 1972), cert. denied 414 U.S. 1134, 94 S.Ct. 877, 38 L.Ed.2d 760 (1974).
Acceptance of the differentiated questions of successive prosecution driving under the influence and felony homicide elicited in Nowack, 774 P.2d 561; see, however, Corbin, 543 N.E.2d 714, does not take me to a contrary persuasion. Neither do I find the felony murder dual sentence persuasive where the court adopted a very restricted minority position. Birr, 744 P.2d 1117, Urbigkit, J., dissenting. Cf. Lauthern v. State, 769 P.2d 350 (Wyo. 1989); Gardner, 340 S.E.2d 701; and Note, supra, XXIII Land & Water L.Rev. 603. Finally, this court just continues to be wrong in permitting the use of lesser included offense for dual punishment. Lauthern, 769 P.2d 350.
Rephrased in early terms from our heritage in ruling case law, we find stated in People v. Cook, 236 Mich. 333, 210 N.W. 296, 296-97 (1926) (quoting 8 R.C.L. 143):
"Stated in another form, if there was one act, one intent, and one volition, and the defendant has been tried on a charge based on such act, intent, and volition, no subsequent charge can be based thereon, though the crimes involved in the two proceedings are entirely different."
The rule is general that, where one offense is a necessary element in, and constitutes part of, another, and both are in fact on transaction, an acquittal or conviction of one should bar the prosecution for the other.
It is obvious that the offenses charged in the two informations are one and the same, and in fact here constitute one transaction; that, under facts undisputed, one is a necessary element in, and a part of the other, and an acquittal or conviction of one bars the prosecution of the other.
Particularizing a difference in Cook was involvement of successive prosecutions, although the case remained as a basic premise in constitutional law for double jeopardy.
The principle was similarly addressed by the Supreme Court of Washington in Arndt, 553 P.2d at 1334 (quoting Com. v. Colonial Stores, Inc., 350 S.W.2d 465, 467 (Ky. 1961)):
"Doubts in the construction of a penal statute will be resolved in favor of lenity and against a construction that would produce extremely harsh or incongruous results or impose punishments totally disproportionate to the gravity of the offense; so in case of ambiguity the construction will be against turning a single transaction into multiple offenses."
We have no actual evidence here in Duffy II that the legislature intended the initial burglary to be punished in addition to the robbery. This lack of intent to double up is strengthened where the same aggravating factor can be applied to burglary as to robbery and where applied to achieve the identical scope of punishment. See W.S. 6-
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