“The rule has long been that one preliminary hearing, unproductive for the State, does not prohibit another. . . . ‘Such an examination is not a trial in any sense and does not operate to put the defendant in jeopardy.’”
How later courts described this case
- “The rule has long been that one preliminary hearing, unproductive for the State, does not prohibit another. . . . ‘Such an examination is not a trial in any sense and does not operate to put the defendant in jeopardy.’”
Written by the judges who cited it.
The opinion
McCLINTOCK, Justice,
concurring in the result, in which ROSE, J., joins.
I concur completely in the affirmance of the conviction but cannot concur in the majority’s refusal to consider appellant’s contention that his confession was secured and used in violation of his Fifth Amendment rights and without the point having been raised in any way by appellant, deciding that the confession and use thereof did not violate Art. 1, § 11 of the Wyoming Constitution. I am firm in the belief that appellant has not established a violation of his Fifth Amendment rights, would so hold, and leave the matter there.
The course followed by the majority appears to me to ignore principles previously announced by this court that constitutional questions should not be considered unless specifically phrased and completely argued. Doe v. Burk, 513 P.2d 643 (Wyo.1973); Johnson v. Schrader, 507 P.2d 814 (Wyo.1973); Miller v. Board of County Commissioners of Natrona County, 79 Wyo. 502, 337 P.2d 262 (1959). As I view it, the presentation of contentions under a specific clause of the federal constitution should not and does not open the whole question of constitutionality to such research and disposition as we may care to make of our own motion.
I do not deny the power and right of this court, provided only that it is convinced that consideration of questions not raised by counsel is necessary for a complete and just disposition of the case before it, of its own motion to raise such questions, whether constitutional or otherwise, but I think that we should rule upon them only after opportunity has been given to opposing counsel to present their views. There was no such possibility of plain error present in this case that I think we need to pose, then answer questions not raised.
I would further observe that notwithstanding the fact that appellant sought only to raise a point under the Fifth Amendment, possibly with the view of getting a ruling from the Supreme Court of the United States on that particular point, the majority opinion may very well impair the possibility of obtaining certiorari from that Court. The power of that Court to grant such writ under Title 28, § 1257(3) of the United States Code appears clear, but under its Rule 19, subd. 1(a) an important consideration in the grant of such writ is whether the state court “has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court.” While I do not think that appellant has sustained his claim of violation of Fifth Amendment rights and believe the cases cited by the majority are more au *1235 thoritative on that point than they are on the construction of our Wyoming constitution, the majority leave the case with no decision at all upon the federal question. I do not think that in the interest of construing our own constitution we should interfere with appellant’s presentation of federal claims to the proper federal court. '