*1 STATE OF WYOMING THE Respondent
Plaintiff vs. DITZEL,
CHARLES Appellant.
Defendant 1957; (2d) 961.) 4th, (No. 2727; 311 Pac. June *2 appellant, For the defendant and the cause was sub- upon argument and mitted brief oral of Vincent Mulvaney, Cheyenne, Wyoming. plaintiff respondent, For the and the cause was upon George Guy, Attorney submitted General, briеf of F. Black, Deputy Attorney General, Howard B. Fisher, Crowley, Badley, Arthur E. sistant Ellen P. Bruce As- Attorneys Cheyenne, Wyoming; General or- argument by Phelan, County al B. Walter and Prose- cuting Attorney County, Roncalio, of Laramie Teño County Deputy Prosecuting Attorney of Laramie Crowley. County, and Ellen C.J., Blume, Harnsberger Heard before and Park- er, J.J. *4 OPINION opinion
Mr. Justice HARNSBERGER delivered of the court. complaint against Dit-
Criminal was filed Charles zel, charging “acting fiduciary ca- that defendant in a pacity, did, good cause, refuse, fail and whеn without legally required by proper persons, for and to account pay persons lawfully over to such entitled as were same, property receive the into hands which came his * * *” fiduciary capacity virtue of his . wording charge languаge
This of the conforms to the Wyoming used Complied 9-328 Statutes § which calls such conduct inform- “embezzlement”. The guilty up- ation plea to which Dftzel entered his of not on which he was tried and in the identi- convicted was language complaint. cal of thе principal questions is,
One of the two for decision refusing prejudicial whether was there error to al- questions low accused answer about consent being approval representative
the the manner entruster in to use the entrusted funds defendant claimed he had done. statutory question is, crime
The other whether our charged sufficiently couched of embezzlement when the in the words of the which has omitted statute feloniously”. “unlawfully words and The as defendant in real was the estate businеss engaged financing incident thereto he in certain also doing activities. This with Kassler included business Company, mortgage banking pro- & a concern which portion financing vided at least a of defendant’s the required. charging complaint business the dе- The grew fendant with out of this relation- embezzlement ship signed by with Kassler & and was E. Kass- Co. S. ler, Jr., president the of Kassler & The home of- Co. company operated fice of the in it was Colorado but part loaning city of its Denver business outside the of thrоugh rep- employees appeared certain who its be negotiating resentatives. In loans from Kassler & Co. practice it was the the defendant to forward the ne- cessary applications company’s Denver office office, turn, and that in sent to the defendant “clos- ing together for statements” with its checks drafts However, approved loans. one amounts of Buntin, company’s representatives, a Mr. was the on- any ly person with who had connected Kassler & Co. contact, any personal who alone had transacted Seemingly company with the defendant. business transactions, Mr. Buntin these business was facilitate keys provided with to defendant’s business office and and full access to all the defendant’s was free books, papers, and business effects. records Evident- the defendant used those ly time to time monies from ways, applying instead of monies re- other various in Co.,& in the from Kassler manner di- received upon closing called rected statements. When monies, there- the defendant was to account for these applied the same fore unable to show that he had clos- contained in those accordance with the directions being ing prosecuted statements. This resultеd his provisions for the of embezzlement under crime our statute. dif- asked on three
At trial defendant was *6 placed in if the ferent occasions the diversion of funds directed, hands, originally was purposes from his the with the approval & Co. or done with the of Kassler Objeсtion Buntin, representative. approval Mr. its questions upon the by was the these made state to hearsay. grounds testimony The that would be such theory. objections These on court sustained the that rulings clearly were erroneous. proffered probative
The force of defendant’s the may testimony any approval have which relative to way money given in the the been to use entruster’s solely up- used, depended it he claimed was would have credibility and could been on the оwn have defendant’s subjected well cross-examination as to the assaults of contradictory by The defend- as evidence. to rebuttal words, spoken testify to the ant was as entitled to given by persons third which or directions statements have conduct as he would motivated his he claimed acts, conditions, circum- physical to been describe especially, explained More what he did. which stances purport words, to or directions where the statements right having the the of control of from a source come testimony subject dispute is admissible. in such matter State, in Little v. point well illustrated The is rather 374, 375, the defendant where 119 Ark. 178 S.W. property with larceny he took the a case maintained in permission. the owner’s error The court held was it to testimony exclude the that the owner had “* * * permission, saying: not the nature This was hearsay testimony, tending to but was evidence prove fact, wit, permission a substantive of the to appellant cultivator, owner for which to take the wаs very fact; gist for, shown, material of the as is offense larceny property is that the must be taken ** *” Additionally with a felonious the court intent. * * “* testimony competent said: in this The was as to, if form as it had either the owner been testified * * *” property aрpellant. (Em- himself or phasis supplied.) case, gist statutory
In this of the offense is that good the defendant “without cause” failed to account pay coming over funds into his hands a fiduci- ary capacity. testimony The exclusion relative of his any approval given to way he in which used the funds, opportunity denied him to show he had the that best cause the best reason be for his there could complying not pay with the demand account and funds, say over prepared the trust if he was alreаdy previous- had applied funds been in a manner ly approved by the owner. See also Buchanan v. United *7 States, Cir., 257, 259; States, 8 233 F. Miller v. United Cir., Haigler 968; States, 10 120 F.2d 10 v. United Cir., 986; States, Cir., 172 F.2d Frank v. United 10 559, 563, Wigmore 564; 220 F.2d Vol. 6 Evidence on 42, 1789, p. 236; State, 3rd Ed. Walker v. 117 Ala. § 149, 152; 23 So. 3 Evidence Underhill’s Criminal 5th Ed., 576, 1421; p. 1 Underhill’s Criminal Evidence § 54, Ed., 94, 95, 296; pp. p. Pye State, 5th 162 v. § § 74 322, 741; State, R Tex. Cr 65 171 S.W. Nesbitt v. Tex. 349, 946, 944, R 144 Cr 947. S.W. wording, by
As indicated its an element of our sta- tutory by of crime embezzlement fiduciaries is that refuse good and did fail “without cause” the accused entrusted the properly pay over for and to account de- the money. denied property or the court When concerning approval testify opportunity an to fendant that from apply money a different the in manner to may directed, have originally which had which been reрresentative, given by company the its or been jury right that deprived to show the of he was his “good It was cause”. with his failure to account was weight any, what, jury’s province if to determine the testimony on that the be defendant’s should score, just privilege rеbut or re- it was the state’s as it, The exclusion such if be done. fute that could a testimony deprive defendant of sub- the served to right prejudicial. therefore and and was stantial vital says, respect question, appellant to the second With words, “un- the information of the the absence from charge lawfully feloniously”, in a failure and results against any of this commission offense the laws the prosecution replies, information state. The that as the statute, the it is in the that of itself makes words and, any event, criminality the sufficient in acts by implied intent “unlaw- criminal words feloniously”, charged fully sufficiently other statutory language. words included in question considered, As this has been discussed and 410, 411, State, Wyo. 396, 409, in settled Waxler v. 518, charge 224 P.2d where it was held that language sufficient, of the statute was we must hold this contention of the defendant to be without merit. excluding competent
For error relevant and testimony in behalf of the defendant which offered ruling prejudiced, judgment we find he was
sentence of the is re- court reversеd and the cause manded the district court for a new trial. Reversed and remanded for new trial.
ON PETITION FOR REHEARING (No. 2727; August 20th, 1957; (2d) 832.) 314 Pac.
OPINION Mr. Justice opinion HARNSBERGER delivered the of this court.
The petition rehearing. state has filed its The for grounds points relied on much the same are аs and arguments previously advanced resistance of appeal. They again defendant’s not will be considered. disregarded long It is also claimed we established judgment rule and substituted our for that of trial recog- court. This contention indicates a failure to nize that the reversal case this was due to of error disagreement law rather than with the determi- court’s nation of facts. We reversed because the lower court erroneously opportunity denied defendant an havе to proper jury. assumption evidence submitted to the No to was made as what answers defendant would given. merely have We that held defendant had the right testify any approval given relative to testimony such the entruster that would not be hearsay. says
Petitioner also the defendant failed to make and, therefore, proof, an offer of the exclusion of the evidence was not reversible error. This overlooks testimony, expected the nature
the rule that when proof un- clearly appears, offer of an otherwise questions necessary. left this case the unmistak- In testimony ir- expected subject matter of able the being an affirmative respective the answers 75, 73, pp. negative Trial §§ See 88 C.J.S. charaсter. 101, 90, together 180, 181; p. with Am. Jur. § cited. authorities ordinarily requires the rule which
The reason for objection preserve proof in an offer of order necessity of improper is the of valid evidence exclusion reviewing and the court apprising the trial both materiality relevancy ex- competency, of the *10 However, pected where this is evidence. disclosed disap- interrogation itself the reason for the rule the pears. by the lower on
The of the evidence cоurt exclusion ground hearsay, plainly the it the that would shows be compe- respect with to court misconceived the law its tency. an does not indicate the court Such exclusion testimony expected the was unaware of nature relеvancy materiality. or cir- or of its Under these cumstances, requiring for offer the reason the rule an proof present hence offer was not not an required. sup cite from
Counsel several cases this State as porting position, namely, State, Wyo. its v. 22 Jenkins 58, 749, 34, 260, gave 134 135 P. P. where the record question material; indication that the no was State v. Boner, Rouse, 468, 1116; Wyo. 477, 134 58 P.2d State v. 41, 13; Wyo. Goettina, 36, 40, 42 P. v. 288 State 448, 865, Wyo. 420, 158 61 P.2d in each of which cases
245 interrogation did not disclose the nature of the ex pected testimony. The also v. State cites McGinness State, (McGinnis State) 115, 122, 978, Wyo. v. 4 31 P. 492, said, P. proffer 53 it where a was should be made question except of what the would elicit where wit incompetent, indicating ness was excluded as thus question itself not had done None оf so. these cases upon important point presented touch where here competent the witness very was and the nature question that, law, itself showed as a matter of expected testimony testimony competent was and would be relevant and material to the issues involved. addition,
In carefully Wyoming we have examined Wax, 321, 339, Wyo. 918; Inv. v. Cooley Co. 45 18 P.2d Frank, Wyo. 436, 451, 446; v. 68 235 P.2d and Watson Klindt, 402, 282, Wyo. v. 280 P.2d where failure fatal, proof make offer of be but held to none of was present us, these cases a situation such as that before to, questions objected sufficiently where the advised testimony. expected the court the nature of the Its admissibility depended solely upon as evidence whether competent repeat any the witness what if was di- approval rection or was him the entruster representative. testimony As matter of its law this hearsay not but direct evidence. was might Casper Attention also be called Motor Co. Wyo. 115, Marquis, 119, 764, v. 223 P. where *11 exception court referred to the to the rule made State, supra, pointed v. in McGinnis and also out that exceptional might require “other circumstances modi- * * fication of the rule Rehearing denied.