Duffy v. State3/21/1990
ender may be indicted as for one combined act in violation of law; and proof of either of the acts mentioned in the statute and set forth in the indictment will sustain a conviction.'
"Byrne v. State, 12 Wis. 525; Howard v. State, 191 Ind. 232, 131 N.E. 403; State v. Jackson, 242 Mo. 410, 146 S.W. 1166; Grayson v. State, 92 Ark. 413, 123 S.W. 388, 19 Ann. Cas. 929; Bradley v. State, 20 Fla. 738; Smith v. State, 40 Fla. 204, 23 So. 854; State v. McWilliams, 7 Mo. App. 99; The People v. Mackin, 159 Ill. App. 125; People v. Gossett, 93 Cal. 641, 29 P. 246; Bishop's New Criminal Proc., Vol. 1, § 436, and many cases cited in Wharton's Crim. Proc. (10th ed.) § 742." State v. Tobin, 31 Wyo. 355, 367-68, 226 P. 681, 685 (1924).
In that case, the court ruled that Tobin had been illegally sentenced because he had been convicted of both gambling and permitting gambling to be carried on in his house. The court held that one act necessarily was embraced in the other. Examination of the statutes and the authority cited in that opinion establishes that the court perceived the purpose of each statute to be directed toward the same evil, prohibiting gambling, and that both gambling and permitting gambling were intended to be alternative means of committing the same offense. See also §§ 3389 and 3391, W.C.S. 1920; Howard v. State, 191 Ind. 232, 131 N.E. 403 (1921). The result was that, even though separate evidence demonstrated that the appellant had transgressed both provisions, he could be sentenced for only one violation, even though committed in the alternative.
The rationale of Tobin was invoked in 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), with the result that the defendant could be sentenced for only one offense when charged with malicious destruction of a telephone line and larceny of the same line. The reasoning is not precise, but the court did not hold that separate offenses merged into one simply because they were part of the same transaction. The court quoted extensively from 24 C.J.S. Criminal Law and, in the same section as that quoted, the following statement appears:
"It is generally recognized that if accused enters a plea of guilty or is convicted on several counts of an indictment, and each count is for a separate and distinct offense, a separate sentence may be pronounced on each count, and the court may pronounce separate and distinct sentences which are cumulative, and are to run consecutively. This is true, even though the several offenses were committed in the course of a single transaction, or arose out of one general set of circumstances." 24 C.J.S. Criminal Law § 1567(3) at 424-28 (1961) (footnotes omitted).
Loddy is consistent with the conclusion that the legislature did not intend to punish separately the destruction of telephone line which was stolen, any more than it would intend to punish separately the breaking of a window which was accomplished in the course of a burglary.
In Dorador, 520 P.2d 230, and the cases which follow it, Tobin was relied upon to hold that the defendant could be convicted of only one offense when charged with delivery of a controlled substance and possession with intent to deliver the same substance. The alternative method of violation was articulated in the same statute in this way:
"`* * * t is unlawful for any person to * * * deliver, or possess with intent to * * * deliver, a controlled substance.'" Section 35-347.31(a), W.S. 1957, (Cum. Supp. 1973), as quoted in Dorador, 520 P.2d at 231.
The court concluded that the legislature intended that a violation of the statute would result in on
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