dissenting.
I do not think the trial court exercised a discretion when it refused to adjudicate the merits of defendant’s motion to suppress evidence and would therefore reverse the case and remand to the trial court with instructions to adjudicate the merits. Since I find no other error in the proceedings, I would require it only to consider the evidence as presented and resolve the question in such manner that its action can be reviewed by this court upon any law questions should an appeal be taken. I have deliberately failed to examine the evidence and reach any conclusion as to the merits of the motion because I do not think that we should determine the sufficiency of or weigh evidence prior to the trial court.
Since I see no need for a new trial before a jury and am concerned as to the legal propriety of rendering opinions on questions not specifically before the court and argued by counsel upon a record clearly showing the need for consideration of the point, I would not undertake to overrule Mulligan v. State, Wyo., 513 P.2d 180 (1973), and other undesignated decisions of this court which have established a rule concerning the effect of circumstantial evidence and the instructions that should be given to the jury.
It has been said by the Supreme Court of the United States that the purpose of the principle first established by court decision and later formalized as Rule 41(e), F.R.Cr.P. (our Rule 40(e), W.R.Cr.P.) is that consideration at the trial of the manner in which papers or other articles used in evidence have been obtained would
“halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation and which is wholly independent of it.” Segurola v. United States, 275 U.S. 106, 112, 48 S.Ct. 77, 79, 72 L.Ed. 186 (1927).
To the same effect is Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307, pointing out that dispatch in the disposition of criminal cases is essential, and
“[t]o interrupt the course of the trial for such auxiliary inquiries impedes the momentum of the main proceeding and breaks the continuity of the jury’s attention.”
As stated by the majority, “A claim of illegal search must be presented to the court seasonably before trial.” Rule 40(e) does not use the word “seasonably” and I cannot read it as governing the disposition of this appeal since to my way of thinking there can be no question but that a motion *865brought on for hearing the day before the trial is to begin is “made before trial.” The majority, as was the Supreme Court of Colorado in Morgan v. People, 166 Colo. 451, 444 P.2d 386 (1968), is then forced to go to another rule, 43(a) and (c) relating to times for giving notice of hearing, and hold that since the motion and notice were not timely served, the motion could not properly be heard on the day it was heard, notwithstanding the fact that the county attorney filed no objection and participated in the hearing and argument without asserting any interruption of or jeopardy to the proceedings. The trial judge similarly did not indicate any concern that there would be interruptions or delay, merely stating that:
“The Court is not ruling on the validity of the search. * * * The Court is going to rule that there is an absence of special circumstances in this case and the Court rules that the defendant was represented by competent counsel throughout all this time from April the 30th, 1974, to the present date, Mr. Davis. The Court rules that the motion was untimely filed.”
If the purpose of the rule is to prevent interruptions of the trial and it can be said that hearing and deciding a motion to suppress the day before the trial results in such interruption, the majority view does not solve the problem since, as I interpret the opinion, if notice had been given on Tuesday instead of Thursday, there would have been compliance with Rule 43(a) and (c) and the trial judge would have been obligated to hear the motion on the same date that it was actually heard. If the majority intend to vest authority in the trial judge to hear or not hear the motion, even if timely notice is given, when in the discretion of the trial judge it is filed or brought up for hearing at a date too close to the trial, then this court is drafting a new rule of criminal procedure. I am not concerned with the merits of such a change and note that the comparable federal rule had been amended in a way that may eliminate the problem with which we are confronted, but I cannot agree to the amendment of rules of procedure on a case to case basis.
Moreover, bearing in mind the purpose of the rule as stated by the federal Supreme Court, I do not think that we may properly say in this case that its orderly progress has been halted or that the jury’s attention has been broken. While it is true that the suppression of the evidence might leave the prosecutor without a case, that is a necessary result of violation of Fourth Amendment rights, incorporated into our own constitution as § 4 of Art. I.
Morgan, supra, may be indistinguishable in principle, but I cannot agree that it has reached either a proper or logical result and do not think that application of Rule 43(a) and (c) can be used to achieve a result not contemplated by Rule 40(e). It has always been my understanding that provisions of the rules relating to notice of hearing have been enacted in furtherance of the salutary principle that no one should be required to participate in a hearing unless he has had sufficient notice of the time and place to be prepared intelligently and competently to present his side of the case. This has led the federal courts, in passing upon civil contempt citations growing out of refusal to answer questions propounded by a grand jury, uniformly to hold that five-day notice provisions of Rule 6(d), F.R.C.P., similar if not identical to our Wyoming Rule 6(d), W.R.C.P. and Rule 43(c), W.R.Cr.P., do not impose
“a hard and fast rule, and that technical compliance may be dispensed with if ‘it is shown that a party had actual notice and time to prepare to meet the questions raised by the motion of an adversary * * *Herron v. Herron, 5 Cir., 255 F.2d 589, 593.” Marshall Durbin Farms, Inc. v. National Farmers Organization, Inc., 446 F.2d 353, 358 (5 Cir. 1971).
In ruling upon objection that five days notice had not been given, it was said in *866United States v. Weinberg, 439 F.2d 743, 746 (9 Cir. 1971) that the rule
“also provides that a different period may be fixed by the court. In effect, that is what happened here; the district court denied appellants’ motion for a continuance and ordered that the section 2514 proceeding' be had almost immediately after the respective appellant had refused to testify-before the grand jury.”
If a different time for hearing may be fixed in advance, it is contrary to reason to hold that the requirement of five days notice is mandatory. If the court may in advance fix a time for hearing within a less time than contemplated by the rule, why may it not proceed to hearing on lesser notice, thereby ratifying what defendant’s counsel may have had every reason to expect was agreeable to all? The real point of my dissent, however, is that requirements of notice can be waived, and I think that the county attorney in this instance clearly waived his right to insist upon a notice for the full period fixed in the rule. Assuming only for the purposes of this case that a situation might exist where the court would have the right to ignore the county attorney’s waiver and of its own motion invoke the time restrictions, I think that it would have to be for some good cause, not shown to have existed in this case. I therefore conclude that the refusal to rule upon the motion was not an act of discretion.
With respect to the statement of a new instruction as to circumstantial evidence, I can add little to what I said in the opening paragraphs of this dissent. As I read the former opinions of the court, it has attempted over the years to come up with workable standards to be applied in the appraisal of such evidence. In Mulligan v. State, supra, which along with other un-designated decisions of this court is now overruled, we did not deal with the instruction which had been given but were concerned as to whether the evidence adduced was sufficient to sustain a conviction for possession of marihuana. We there reiterated what we then took to be the established rule of this jurisdiction, that circumstantial evidence “must be not only consistent with the guilt of the accused but it must be inconsistent with any other rational conclusion.” We adhered to this rule in Lewallen v. State, Wyo., 536 P.2d 148 (1975). I construe the majority opinion as holding that we will no longer apply this rule but will consider
“whether there is substantial evidence, direct or circumstantial, or both, which, with the reasonable inferences that may be drawn therefrom, will sustain the verdict.”1
What bothers me, despite the assurance of the majority that we are merely abandoning a rule that is “wishy-washy, misleading and constantly raising questions as here” is that we play a word game and eliminate a test which I think must be applied in reaching a decision as to whether the jury’s verdict is based on reasonable inferences. How can we conclude that a jury has properly weighed “the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference”2 without reference to some standards ?
I am not convinced at this time that Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), and other cases cited by the majority establish standards that are more workable and efficient in solving that problem.
Nor can I agree with Mr. Justice Thomas in his observation that application of the rule now abandoned by the majority means that the jury is to be advised that to find the defendant guilty beyond a reasonable doubt “ ‘the circumstances when considered together must point clearly and conclusively to the guilt’ ” of the defendant. This language he says “is very like *867proving it beyond a possible doubt” which he says was long ago repudiated by this court. (Emphasis mine) The quotation including the word “conclusively” is found in Gardner v. State, 27 Wyo. 316, 196 P. 750, 752 (1921), as a quotation from Davis v. State, 18 Okl.Cr. 112, 193 P. 745, but I find nothing in the opinion of this court that indicates that it adopts that language. Reference is specifically made to Horn v. State, 12 Wyo. 80, 73 P. 705 (1903), mentioned in the concurrence, as not requiring proof beyond a possible doubt. I have found no other decision of this court indicating in any way that the circumstances must point conclusively to the guilt.
It has long been the attitude of this court that points not raised in the briefs and argued by counsel will not be considered by us yet the majority opinion seeks to do just that. I do not say that a change of viewpoint may not be desirable. I only say that I do not think it should be considered in the context of this case. I would therefore concur in the affirmance of the instruction as being consistent with the previous holdings of this court and then leave the matter.
ROSE, J., concurs in this dissent.. Harris v. State, Wyo., 487 P.2d 800, 801 (1971), reh. denied September 20, 1971.
. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954).