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Duffy v. State3/21/1990
ly one conviction even though the language provided for alternative ways of committing the offense. The same evil was addressed. See also Dycus, 529 P.2d 979; Boyd, 528 P.2d 287; Jackson, 522 P.2d 1356. Compare Carter, 714 P.2d 1217.
In Jerskey, the rationale of Tobin was invoked with the result that Jerskey could not be convicted of both possession with intent to deliver a controlled substance and an attempt to deliver the same controlled substance. The evidence demonstrated that a package containing seven bricks of marijuana had been sent to Jerskey. The authorities intercepted the package, removed six of the bricks, and then permitted the package with the one remaining brick to be delivered to Jerskey. The court ruled that the same evidence supported both charges and that, had the police not intervened, the package would have been delivered with all seven bricks. Consequently, separate charges of possession with intent to deliver and an attempt to violate the statute could not be sustained. In that instance, the product of the court's decision was that a lesser included offense, attempt, could not be punished separately from the actual offense. See Brown, 432 U.S. 161, 97 S.Ct. 2221. Only one sentence could be sustained.
The rationale of the Wyoming cases is consistent with that of the Supreme Court of the United States concerning the question of whether separate evidence demonstrates separate offenses or a continuing single offense. The defendant in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), contended that two sequential drug transactions constituted only one offense. The Court there said at 301-02, 52 S.Ct. at 181:
"* * * The sales charged in the second and third counts, although made to the same person, were distinct and separate sales made at different times. It appears from the evidence that shortly after delivery of the drug which was the subject of the first sale, the purchaser paid for an additional quantity, which was delivered the next day. But the first sale had been consummated, and the payment for the additional drug, however closely following, was the initiation of a separate and distinct sale completed by its delivery.
"The contention on behalf of petitioner is that these two sales, having been made to the same purchaser and following each other with no substantial interval of time between the delivery of the drug in the first transaction and the payment for the second quantity sold, constitute a single continuing offense. The contention is unsound. The distinction between the transactions here involved and an offense continuous in its character, is well settled, as was pointed out by this court in the case of In re Snow, 120 U.S. 274 [7 S.Ct. 556, 30 L.Ed. 658]. There it was held that the offense of cohabiting with more than one woman, created by the act of March 22, 1822, c. 47, 22 Stat. 31 [now 18 U.S.C.A. § 514], was a continuous offense, and was committed, in the sense of the statute, where there was a living or dwelling together as husband and wife. The court said [120 U.S. at 281, 286, 7 S.Ct. at 559, 562]:
"`It is, inherently, a continuous offense, having duration; and not an offense consisting of an isolated act.
"`A distinction is laid down in adjudged cases and in textwriters between an offence continuous in its character, like the one at bar, and a case where the statute is aimed at an offence that can be committed uno ictu.'
"The Narcotic Act does not create the offense of engaging in the business of selling the forbidden drugs, but penalizes any sale made in the absence of either of the qualifying requirements set forth. Each of several succes
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