State v. Hambrick

WYOMING, THE STATE OF Respondent,

Plaintiff vs. HAMBRICK, N.

GLADYS Appellant.

Defendant (No. August 2367; 3, 1948; (2d) 661) 196 Pac. Appellant, For the Defendant and cause sub- upon argument mitted the brief and oral also of Carl- Lathrop Cheyenne, Wyoming Bry- ton A. and W. A. Denver, ans of Colorado. Respondent,

For the Plaintiff and the cause sub- upon Gray, Attorney mitted the brief of Norman B. General, Cheyenne, Briggs Wyoming, Rawlins, S. K. Wyoming Springs, Wyoming, A. Muir Rock W. argument Briggs and oral Mr. Mr. Muir.

OPINION Blume, Justice.

Three different informations for embezzlement were against defendant, filed Gladys N. Hambrick. The first counts, information contained ten the second two counts, thirty-nine the fifty-one third counts counts — agreement By in all. parties, of the the were con- cases trial, solidated for days. which lasted 23 The court in- jury structed the to guilty find the defendant not on counts, five which accordingly Forty-six was done. counts were left jury, for consideration of the who found guilty the defendant on these counts. Sen- all imprisonment tence of imposed on the defendant pursuant conviction, to sentence, and from that she appealed has alleged this court. The embezzlement of the Hospital funds of the Memorial of Carbon County, generally and that institution will hereafter be hospital. referred to as the Change

I. of Venue. change Defendant filed a motion to the venue of the county, action another on prejudice account of the against people County of of Carbon defendant. change granted, The of venue was not and error assigned prosecuting on The herein account. that motion, taking attorney opposed issue with county allegation prejudice people of the of as to March 1946. The motion was heard on aforesaid. Eight the effect a affidavits were filed to that number case, expressing people of had that discussed guilty; people that of Carbon defendant was Coun- ty prejudiced against her, that she could not were county. receive a fair trial herself, called, aside from the defendant The defense witness, hospital member of the board one a former but place people, and who in a of about 40 who resided testimony the effect that the to have based his seems County not have a fair trial defendant could Carbon person. mainly The wit- on conversation with one his prejudiced, not he himself was stated that ness give fair trial. The state ex- the defendant a would parts from seven witnesses different amined they county. All them testified that did know of why any the defendant could not receive reason county. impartial Some them a fair and trial discussed, knew no even the case had not heard excitement, prejudice against no and of the de- local people lot of The witness Kelser stated fendant. up, came case when it first but had discussed the subject, expressing a closed those an it had become guilt opinion or innocence as to the being evenly Cunningham The about divided. witness had some little been comment on stated there up, but that he heard when it first came had noth- case had ing time. witness Farmer heard since that case, just opinions people with a few discuss about Rawlins, Chaplin, living evenly The witness divided. at prejudice against knew no local that he of stated discussed, defendant, he heard the case had thought people believed more he way. guilty than the other the Rawlins the case published about articles

Two 3,188 in- were Times, circulation Daily with a total published of these was The first in evidence. troduced second, filed; the had been information the first when publica- filed. These information a further when merely the facts. to state purported tions for The case was set the motion. overruled The court meantime, 6, on begin 1946. In on June to trial appeared 1946, in the Rawlins 4, editorial an June following effect: Daily to Times HERE MRS. HAMBRICK “TRY Hambrick, superin- Gladys former Mrs. The trial of Hospital, scheduled Memorial of Rawlins tendent here, be one that should Wednesday held court is in district change of County be no should in Carbon —there chips,’ if there And ‘extraneous whatsoever. venue may. they any, fall where should alleged in Carbon offense occurred FIRST —The County. According released to information SECOND — developments ensued county at the time officials during $37,000 shortage in excess was a there 1945, September when Mrs. June, 1940, period Hambrick money superintendent. That is a lot including paid money, which is taxpayers’ —the county. this by the businessmen of are in- reports current others are THIRD —There deplorable Whether this situation. this volved true is ascertain, Briggs Attorney to County K. up S. accordingly during trial, and to act both before uphold. he sworn to the law has and to thought attempt or no should be FOURTH —There Briggs Attorney transfer this out Carbon Carbon trial affecting county County affair is a Carbon —it county monies. quarters pre-trial in some claim FIFTH —The try jury Mrs. Ham- impossible to obtain a bewill it 16 enough is sheer nonsense. There are more than brick ‘good county and true’ men women in Carbon jury alleged thievery constitute a to sit in this trial of public The from institution. fact that Mrs. Ham- bond, $14,- pending trial, on

brick’s which she is free speaks for the seriousness of this situation. According report, money to the been auditor’s has hospital, support- stolen from Memorial an institution County taxpayers. ed Carbon guilty brought Those should be to trial in Carbon county. up There is a little verse which sums the entire situa- tion : fudge, ‘In vain we call old notions pare dealings; And our conscience to our budge, The Ten Commandments will not stealing stealing.’” And will continue 6, 1946, When court at on convened Rawlins June judge immediately the trial took matter of change permitted editorial in hand and the motion for a reopened. panel jury venue to be con- men, separ- sisted of 32 he examined each of them ately what, any, to determine chambers if effect the upon editorial above-mentioned had the members of panel. Three of them had read the editorial and guilt opinion had formed some to the in- sort as nocence of the defendant. These three were excused jurors. “thought” they Four others had read editorial, but stated that had no effect it on them. “something” One stated that he had read of the editor- ial, any pay without effect. he One stated that didn’t thought much attention to it. read the One editorial but guilty. the defendant not Four others also read the editorial, but stated that it had no effect on them. The panel, constituting majority, remainder of the had change not read the editorial at all. The motion for a again of venue was denied. jurors excused,

After three had been 29 men were cause, challenged left. None of were one them but friendly was excused because he to the thought influence would his decision. apparently mainly Another was excused because he “hang” against jury would not if 11 were him. Of regular jurors serving the 12 in the case and the extra juror, nine of them had not read the editorial above- remainder, merely mentioned. Of one read “some- thing” paid of the editorial. Another no attention to “thought” it. Another that had it. of he read them All the stated that editorial had no effect on them what- ever, against defendant, they prejudice that had the no expressed opinion had not or and formed an as to the guilt Nearly or innocence of the defendant. the same jurors disclosed the were situation was as to who challenged for cause. The state exercised four of its challenges, eight peremptory the that —all all, by panel of allowed statute. In five of the 32 were motion, jurors by the on were excused court its own friendly apparently of them because he was too to one presented A similar to that the defendant. situation appears Bess, case at bar the case of State v. 60 the 426, 558, 199 Pac. where the court Mont. stated: killing, publication of a and even of an account “The guilty party, intimating of the defendant is the is regarded ground not to a itself be as sufficient county of the case to another for trial. transfer the do, doubt, opinion public in mat- Newspapers no affect stand; they upon which take a decided but before ters their effect can be highly pronounced so baneful and change venue, prejudicial it must to warrant a of as enough they passionate to excite be shown that were rendering impos- prejudice, undue the extent it jury excep- free from for an accused to secure a sible ruling against the defend- tion. The court was upon this issue. The voir dire examination of the ant called, jury that, the 40 10 were disclosed talesmen challeneged defendant, by 4 peremptorily state, only they 14 were excused had because form- opinion upon the merits of the case. This fact an ed charge overcoming long goes way a alone by refusing change discretion court abused its whole, no reason- place Upon we find trial. ground upon district court to differ with the able which upon issue.” this killing apt prejudice. A A is to arouse excitement so, apt if nearly to do case of embezzlement is Wyo. Comp. provides in Section 3-1906 St. at all. change that “if regard in a criminal case a of venue hearing, judge, upon such appears to the court it impartial in another coun- more the trial would be granted.” And counsel for ty, application be shall 3-1902 our attention to Section defendant called corpora- provides Comp. if a Wyo. which St. having party to an action in a is a tion 50 stockholders case, party opposite that he on affidavit of the civil county, impartial in the trial have fair cannot persons, of five the venue shall affidavits sustained county. This, say changed counsel for to another defendant, policy of even ain fixes the our statute us, reason that that before for the case such as criminal by public supported hospital case involved in this taxation, taxpayer and each funds raised to county in similar that of a stockholder is a situation corporation. are to the case private We cited of aof 167, State, N. E. 456. In that v. 91 Ohio St. 110 Baxter case, tried for embezzlement of the defendant was 5,000 had 257 and in a bank which stockholders funds change depositors. The held of court that a venue basing reasoning, granted, in have been its the should reading main, upon the a statute as 3- same Section supra. We not thnik that the should 1902 do case be controlling herein. We to hold held be hesitate should, change upon granted application, a of venue be every charged in case which embezzlement of in is county, city, public town, hospital, library, of a funds or organization public supported by or other taxation. be‘going That we think would too If far. carried to

19 extreme, charged with it would mean that a defendant embezzling money a could not receive fair of state case, anywhere. impartial In trial the Ohio and question change ques of one of the of venue was but error was held to be committed tions involved. Serious matters, not at in other and we are all certain that the merely have the case court would reversed be Ohio change granted. is no of venue was While there cause corporation analogy of between the stockholders a an county, generally case, taxpayers of a it is and the get know, taxpayers seldom in all excited as we disposition other with the disbursement or connection course, funds, that, of be more public and would true supported hospital as this where is in a case such only partially. In by public the later case funds Ohio State, App. 297, 161 N. 284 Hawkins v. Ohio E. court, part, an case—the stated —not embezzlement follows: as good expect person crimes cannot who commits “A kindly praise wrongful or speak of him his people to * * * necessarily acts; not it does follow unlawful and denounced, by large even if a

that one so criticized and county, not, placed may if citizens number crime, impartial fair trial a have a and on trial for oc- county where such criticism denouncement duly jury impan- was in fact In case a cur. eled opinions error the instant had five veniremen fact sworn. guilt plaintiff or innocence of toas jury impaneled in a moment. is is of no Seldom excusing one or more any veniremen for case without first criminal merits of the opinions fixed as case.” prejudice, is speaking of local it

In J.C. S. question is whether or determined stated: “The alleged ground that the for fear not there reasonable is actually exists, will re- prejudice that accused merely to trial. It not sufficient show ceive fair against accused; great it prejudice must exists great general appear prejudice is so so prevent receiving him from impartial a fair or change trial.” Whether or not a of venue should be granted ordinarily is within the sound discretion of the trial court. only C. J. S. 323. It is when that dis- cretion appellate has been abused that an court can intervene, often, and whether such abuse exists if is generally, point a most difficult to determine. The hearing change first on the for a motion venue oc- cupies pages more record; than 50 the second hearing examination, and the voir dire some 258. We thereof, have read the compared whole and have what appears appears therein with what in the cases cited by counsel for the defendant and not heretofore men- tioned, they present and which claim facts similar to the facts in the case at bar. We do not find that to be presented true. The situation appears these cases entirely us to pre- different from the situation tell, sented the record before us. So far as we can judge do, the trial did all that he was able to all reasonably expected, that could be to insure for the impartial defendant'a fair only trial. He not made special jurors a examination of the as above-mention- ed, kept jurors together during but also the whole days trial, although of the 23 necessary that was not like in case that at bar under our statutes.

Considering whole, the record as a say we cannot trial court abused its discretion in the matter discussion, assignment here under and the of error in this connection must be overruled.

II. Prosecuting Removal Attorney.

The defendant filed a motion in the case to remove K. County S. Briggs, Prosecuting Attorney County, prosecutor Carbon as from the case. motion, court overruled the assigned and that is point argued error. The in the brief for the defend- great length. ant this court at objected It is that Mr. going case, Briggs to special even took a interest Elwell, expense interviewing former a the of one Jane Lincoln, hospital, residence at nurse at the at her then Prosecuting attorneys do not in this state Nebraska. detectives, ordinarily money employ have the to ordinarily greater investigating a case burden of objection of the to the action falls on them. see no We alleged prosecuting attorney in case. Another this ground Briggs case is the from the for removal of Mr. brought of on fact that he a civil action behalf Hospital the sum of to recover Memorial at Rawlins belonging $10,000 money to the from the defendant as against hospital, be issued an attachment to and caused property It in 18 C. J. defendant. is stated of the attorney 1312, prosecuting has a as follows: “If the obtaining acquittal convic- or personal in an interest * * * in not act tion, may disqualify him. He should it against appeared in a civil suit a case if he has before substantially upon the same party, based same * * * prejudice hand, mere of facts, the other On although against attorney prosecuting him,” court, disqualify by will not open criticism 241, Jones, 2d 93 Pac. 200 Wash. v. In Callahan etc. stated: the court ago no man can long laid down principle was “The public with consistent It is not masters. two serve may personal receive prosecuting officer that a interest acquittal the conviction gain of one result either of as the or in connec- law, charged of the infraction with charge. filing any Neither should of with the tion facts or evidence discover used to power the state be of profit vest- might private to the official result which very power. authority The to use such law with ed the administra- with appearance of evil connection public be avoided.” office must tion sound, is, course, applica- has no principle but The Mr. not claimed herein that case at bar. It is tion bringing.the Briggs any compensation for received above-mentioned, appear that he nor does it civil action brought private individual. of a an action on behalf true, County, Hospital it is The Memorial Carbon Wyo. Comp. body 1945. corporate. St. Section 26-703 county com- board of created The institution is may levied issued and taxes missioners. Bonds Wyo. Comp. 26-701 support institution. Section appointed hospital are St. 1945. trustees commissioners, they county must make the board Wyo. Comp. 26-706 report them. Section an annual fact, is, county hospital in a insti- Hence the 1945. St. Wyo. Comp. provides St. 27-604 Section tution. follows: as attorney receive prosecuting shall county and “Each both, may salary, be allowed him as or or such fees attorney county prosecuting not law, shall and and the any prosecute defend for any from or or fee receive suit, any corporation civil or criminal or in individual county law, or proceeding in which this state his or at prosecute

may party, he a but in all such cases be shall attorney if such county, for the state or or defend shall any fail, neglect perform and all or refuse to law, enjoined upon he and his him official duties sureties shall case, liable, on his official bond in each (S100.00) a sum not than one hundred dollars in less (3500.00), in and not more than five hundred dollars having jurisdiction of such the discretion of the court cases.” above-mentioned, hospital

While, in the civil case necessarily party plaintiff, coun- made the Carbon interest, ques- ty party was a there is some real in not, under the fore- in our mind as to whether or tion going Briggs statute, duty of Mr. to it was not the bring county commissioners the civil action when the county institute the ac- demanded of him to of Carbon tion, necessary appears to be the case. It is not Briggs definitely question. Mr. withdrew decide the action, Johnson, from the civil and Mr. Harold an at- Rawlins, torney Wyoming, place lawat at took his in assignment of it action. think clear We that here merit. error considered is without Prosecuting Attorney. Opening III. Statement of opening complained for Counsel jury prosecuting attorney statement of to the a “brief” which statement of the evidence expected allegations prove state of the informa- tion. The out record and is about statement set in the twenty-six pages length. pages taken in are Several necessary up preliminary with matters were which charged in with be shown the case. The defendant was fifty-one out embezzlement of various items set counts, was, opening so on statement average, length page as to each count. about one-half distinct statement, have read are under the We was, fact, impression “brief.” that the statement prosecuting attorney place one at stated up every involved of embezzlement that is “to set count action, case, large we never could in this be too a would get through it, only set forth a small with so we have embezzlements situation. number actual jury otherwise, of six a trial To do would necessitate longer.” defendant call this months Counsel great tending prejudice statement, create reckless jury. involved The actual amount in the minds the fifty-one was about informations counts the the $2,800. in tends to show that The evidence the case nearly $40,000, we can so that defendant embezzled exaggeration hardly say as an the statement was Hence, say it proven. we cannot to what would be require a of the a as to reversal was such statement judgment. say the for the defendant Counsel monologue.” opening will reveal “laborious statement monologue designed pas- scarcely inflame the A is jury any prejudice in minds. of the or create their sions in on this The statements the- cases cited counsel point altogether are made different from the statements in this case. opening interrupted

Counsel for the defendant objections times, statement at various one of statement, point pro- was sustained. At one of the secuting attorney mentioned the fact that a certain deposited, check had been and counsel for the defend- inquired deposit ant then where the was shown. as to prosecutor objected interruption The assistant to the tending to create a then re- confusion. The court marked that will “counsel for the defendant be admon- any interrupt opening ished not to fur- statement bitterly ther.” Counsel assail this statement of They say court. “the harm that would follow proceeding beyond imagination. the wake of this ** * jury might possibly A conclude that what prosecuting attorney saying then to them met approval with the of the court.” We think that counsel exaggerate importance of the matter. The state- broad, perhaps ment of the court was too inter- since ruption at times is doubtless warranted and sometimes required, any prejudice we but do not think that jury by ruling created in the minds of the reason of the court, any or that harm to defendant resulted. IV. Endorsement of on Witnesses Informations.

The state had endorsed on the information the Union Company Pacific Wipprecht, Railroad R. Auditor company, Compensation also the Workmen’s Department Wyoming Wright, of the State of and Earl Treasurer, McIntyre, State also the name of John J. specific State ap- Auditor. The officials named did not pear, testify but sent other officials in their stead to case; namely, Sweeney, Deputy John F. Auditor of Company; Petry, charge Railroad William Compensation Department; Workmen’s Josephine Dendinger, Deputy Auditor, prosecution, and the on 7, 1946, June day commenced, after the trial asked to endorse the names of these substitutes on in- formations, permitted and the court it be done. is, course, It way clear that the defendant was no prejudiced by these substitutions. 18, 1946,

On prosecuting attorney June filed a motion, supported by affidavit, to endorse names Farmer, óf Hoyme B. Amy Sundquist, Thelma N. informations, as witnesses on the wit- stated that these testify they gave nesses would receipts money hospital due to the money and turned such over to the hospital. office of the The motion further stated “That why the reason said witnesses’ names were not endors- upon ed the Criminal follows: The Informations is as Wyoming, State of prosecution, had no idea the defense would raise the inference that the above persons named receipted who for certain monies re- hospital ceived deposited never the same drawer; cash that counsel for the defense were shown all of the receipts prosecution unnumbered held possession, in their among signed receipts which were by Hoyme, T. Amy Sundquist, B. Farmer and N. thereby apprised were of the names of said witnesses now wished to be endorsed on said Informations employees

These hospital. witnesses were at the In main, they merely they signed testified that had receipts previously evidence, pre- introduced in viously receipts referred to other witnesses. signed by They them were not numbered. were taken from an receipt book, and, unnumbered as will more fully be guilt shown when we come to discuss the defendant, innocence of the that fact itself would seem indicate, referring without testimony witnesses, these money evidenced those receipts, probability in all came into the hands of the words, defendant. In other their testimony, 26 ef- merely strengthened to that other evidence

main, counsel in the record is that fect. The indication wit- knowledge that these of the fact had above-mentioned, had signed receipts nesses testimony these knowledge which of the nature of the give probably to the witness if called witnesses would have sur- been Hence counsel cannot be said stand. testimony prised by these witnesses. the offer of merely any, coun- surprise, if have could been up case sel to the fact that the state’s for the state woke having might strengthened possibly wit- these be testify. nesses among Comp. provides, Wyo. St. 1945

Section 10-602 things, attorn- prosecuting other with reference ey, the names also endorse thereon as follows: “He shall may known to become such witnesses as thereafter may as the court him at such times before trial Wyo. prescribe.” rule 10-603 or otherwise Section provides Comp. “The 1945 failure St. follows: witness, prosecuting endorse the name or witnesses, ground of other for the names shall not be quashing setting un- or aside of the information and counsel, request less move the defendant or his shall or made, already that such be if endorsement shall not made, the to have waived defendant shall deemed right made, en- his to have such and such endorsement may before, any dorsement be made trial.” at after (Italics supplied). were These statutes considered length State, this court at considerable in Boulter 6 v. 66, Wyo. 606, Bemis, 218, Wyo. 42 Pac. 34 State v. again 242 802, Pac. not we need do case. so this general, In these endorse rule cases stated in may, C. 252-254 J. S. to the effect that the trial court discretion, in its allow the endorsement the names during of witnesses on the even informations the trial court, of a (34 238) case. The Wyo. in State v. Bemis provisions expressly stated of Section 10-603 Wyo. Comp. 1945, “such endorse- St. to the effect that trial,” may before, be made ment at or after Wyo. provisions 10-602 controlled of Section conferring Comp. 1945, St. but should be construed as express authority after the com- for endorsement at or trial, any by permission mencement of at least court. for the defendant seem to think Counsel duly motion for the en- when a defendant made a has mention- dorsement of on an information as witnesses Wyo. Comp. and an en- ed in Section 10-603 St. thereafter, accordingly, dorsement has been made too, may point, no further endorsement be made. That 238) supra (34 Wyo. was considered in State v. Bemis disagreed the court with of counsel the contention facts, now made. In view these and the of authorities in we hold discretion cannot that the court abused it permitting testify. that these to It is true witnesses matters, Hoyme Thelma testified to some collateral say, directly with the that is to connected matters not However, fifty-one her counts of the informations. testimony testimony of was but cumulative similar given by we do not think that the witnesses, other case should be because of the admission of reversed testimony. V. Innocence of Defendant. Guilt argue for the evidence in Counsel defendant case this for conviction. We think insufficient They counsel in error. the defendant are admit that personally charged received the amounts to have been of the informa- embezzled four or five of the counts tions, paid and it is shown that these amounts were not hospital. accordingly virtually over to the are Counsel compelled appropriated to admit her own use the sums involved in these counts of the prison informations. Defendant was sentenced eight years a term four to forty-six on each of the 28 guilty, the sentences

counts on which she was found that, if in such concurrently. It been held run has valid, it is unneces cases, any on count is the conviction any other count. sary on to consider the convictions 379; Sup. Sheridan, 67 Ct. v. 329 U. S. United States States, 320 332; 359; Hirabayashi v. United 91 L. Ed. 1774; 1375; Pinker 81, 85; Sup. 87 L. Ed. 63 Ct. U. S. 1180; 640; States, Sup. 66 Ct. 328 U. ton v. United S. However, have 1489; we 673. L. Ed. J. S. C. evidence laboriously painstakingly examined the which the defendant to each of the counts on convicted, that the evidence and we have not found have any for conviction. We of the cases is insufficient although defendant, opinion thought it fairer to long, evidence in the case to some will be to discuss the give extent, although, course, we can do is to all testimony summary in some of the vital contained 3,000 pages or more exhibits of the record and the 500 Reed, auditor of the introduced in evidence. an C. W. years Ernst, firm of Ernst and and with a number books, experience auditing examined and audited hospital. examination the books of the He started the 19, 1945, September de on and testified that the first 4, 1940, place on December falcation defendant took September 17, and the last on 1945. general superintendency of

Defendant had the naturally hospital, of the which included the affairs duty money deposit deposi- its and to it in the receive tary hospital. depositary, case, was That the First National Bank of A cash was Rawlins. book kept daily receipts. which showed the The entries therein, case, ordinarily far were so as relevant commencing by defendant, particularly made early part excepting, course, about of 1941 dur- ing the times when the defendant was absent from Rawlins, generally comparatively which for short although periods, at one time in 1944 she was absent period eight for a deposit slips of about weeks. The herein, too, generally relevant were made out defendant unless otherwise stated herein. The cash deposits book listed the which were made and the deposited amounts were mentioned “banked”, fol- lowed the date and the amount. It was the custom hospital at the to issue what is called an admittance patient card for each which contained the name of the patient, the date hospital, of admittance to the and the discharge. that, date of In addition to there was used ledger what is called a card that contained the name patient, the date of hospital, admittance to the discharge and the date of They therefrom. were num- consecutively. They separate bered also contained columns for debit and credit entries. The column for parts, showing credits was divided into three one payment, receipt issued, date another the number paid. and another the amount superin- time

At the when the became only hospital, receipts tendent of the one set of money received was issued. That set was numbered defendant, consecutively. however, changed The this sets, adopted two one numbered and one unnum- Payments were made bered. at times to nurses employees girl other when neither an office nor the de- generally night, fendant was in the office. That was at and, cases, receipt given, in these an unnumbered leaving copy perhaps a carbon in the book. It was con- venient, cases, in these receipt that an unnumbered judging testimony be used. book But from the Ford, Sjogren, Hagins, McCarthy, witnesses and Beel- er, commencing February 1942, with about after Jeane Spencer, up time, left, office clerk receipts had receipt appear from unnumbered books to have patients, paid money, been issued to who in all or near- ly say all cases—that is to even the office clerk and the defendant herself. evidence indicates that kept on, receipt book was the time numbered

from that The unnum- separate of defendant. office the the office kept in the office receipt of book was bered hospital. general clerk, office of the the which also was the in amounts shown to enter all the was intended It receipt receipt the into numbered book unnumbered receipt receipt the unnumbered a from Since book. given patients, already at least to the had been book them, original receipts the of from the most of instances, book, receipt few in all but numbered basket, leaving only the thrown into the waste was system adopted, the defend- copy. The as carbon claimed, would be neater. Of so that records ant course, involved as above-mention- with the waste even nothing wrong particularly ed, have been there would by adopted system if all the with the amounts shown receipt copies had the carbon unnumbered books actually by receipt book, but the numbered been shown instances, that, many true. in- is not The evidence destroyed, or defendant caused to be dicates that receipt destroyed, and the all of unnumbered books except copies therein carbon contained the last book October, used, covering part November and of Decem- ber, 1945. At least none other were found when the That, course, was made. audit above-mentioned opened up perpetration field for the an unlimited danger well as to her. fraud Since receipts receipt most of the the unnumbered books defendant, slightest were issued others than the suggested precaution danger would have of des- books, troying suspicion these is not unwar- express purpose this was done ranted that covering up appropriation money unlawful to her receipts use. About of the numbered own were 38% defendant, persons other but after issued than left, generally Spencer percentage Jeane had short- much The witness Reed testified that no smaller. ages re- which numbered were found in cases in the by ceipts others. were issued information, the de-

In first count of the first charged of fendant with embezzlement $54.49. was was, 16, 1941, January paid to the That amount on entry hospital by Eugene The by check one Williams. Spencer, covering byis in the cash date Jeane book that which evident- but does not contain check the Williams ly herself. The was over to the defendant turned by book was collected, amount as the cash shown duplicate deposit slip contains The $637.42. handwriting Spencer. It in the of amount and is Jeane currency and a total as in the of shows amount $79.24 original deposit slip is of The above-mentioned. bottom, handwriting of in the in evidence. On also $54.49, Williams check is inserted the only currency is sum of thereon shown but $79.24, exact difference of $54.49 instead of $24.75 reasonably represented by check. It seems the Williams change by made the defendant and was clear this currency in the of appropriated sum $54.49 that she her own use. defendant, the first in- count of the second The embezzling charged the sum of formation, with is 11, February appears It 1943. on $180.00 County Welfare hospital the Carbon received from defendant, in her hand- of Board sum $489.12. receipt writing, 6616 the the numbered sum entered on entry like received. A of the sum instead of $309.12 personally cash by in the book the defendant made 11, 1943, deposit February of date Thus, accordingly. there was a her was made bank hardly probable shortage these It is of $180.00. A falsifica- mistake. deliberate made were entries be indicated. received seems to the amount tion deposited, shortage $489.12 the check While appropriating must have occurred her to her own currency use in that amount. shortage

A similar like and in manner $100 shown in connection the first with the third count of information. The defendant received from the State state, 1943, Auditor of the or on about November Compensation, in connection with war- Workmen’s Defendant, handwriting, rant for in her en- $406.30. $306.30, receipt tered numbered 7919 for the sum entry, less than received. She made a like $100 handwriting, her in the cash book as of date November 24, 1943, deposit and the in the bank was in accordance hardly likely with such entries. It is that these entries by were made mistake. information,

In the sixth count of the first the de- charged embezzling May, fendant is with in 1944. $200 hospital The from received the Union Pacific Railroad Company $608.80, defendant, by of the sum but the re- ceipt by herself, numbered 8577 written shows the $408.80, amount received as short. The cash $200 by only $408.80, book also written her shows deposit in the bank was made her in accordance with figure. hardly possible the lower It is that these entries mistake, shortage brought were made and the was in about a manner similar to that mentioned above. information, In nine count of the first the defendant charged embezzling July is with sum on $106.20 18, She, hospital, 1945. on behalf received this sum from receipt Arnold An unnumbered Good. receipted an itemized bill for this amount is in her handwriting. receipt Neither the numbered book nor entry the cash amount, book shows an in that and the deposit bank made does not include it. It seems clear appropriated defendant this amount to her own use. twenty-eight-

In the count information, of the third charged embezzling the defendant was with $92.10. paid hospital July W. C. Johnson that amount to the on 5, 1944 behalf daughter, on Patricia. The item- his receipt signed ized statement and for amount this was ledger personally. the defendant The of Pat- card ricia Johnson is in the record. It that the fore- shows going paid by 8733, Receipt amount was No. but that was, receipt fact, is not That true. numbered issued entry to someone else. No of the amount is received receipt book, found in the numbered book or the cash deposit and no for the amount was would made. It seem to appropriated be clear that the defendant foregoing to her own amount use. thirty information,

In count of the third the de- charged embezzling fendant with the sum of $70.24 paid on That December 1944. amount was to the personally by defendant Charles Ballard on behalf of Ballard, Elsie but the amount received was not entered book, on the book receipt cash nor in the numbered nor deposit of was a this amount made the bank. The appropriation amount, too, by of this the defendant her own use seems to be clear. thirty-three information,

In count the third charged embezzling July with $74.70 on 12, 1945. The record shows an itemized statement and receipt for this amount in the defendant’s handwrit- ing. patient entry Madeline Teers. No this amount is found the in cash nor book in num- the receipt book, bered nor was the deposited amount in hospital. the bank for the It seems clear this that amount, too, appropriated by was the defendant to her own use. thirty-seven

In connection with count of the third information, appears hospital it that the received the Hansen, sum of from patient. Jens a $183.45 The seemingly paid check, amount was and this check on the de- deposited by and shown the defendant was handwriting the the of posit slip 11,1943 in on October the defendant, that there can be no doubt so that the paid came into the check was that amount defendant, the is not not- but amount possession the book, that The amount shown on the cash book. ed on defendant, up handwriting received the as all the in date, foregoing including is $319.50. to and with amount. slip accordance deposit is made in book, it would the cash on been shown Had $183.45 larger by the amount of of course $183.45. have been it shortage accordingly to be is shown and seems A appropriated her that sum to clear that the defendant currency appropriating the check own use in instead ledger patient shows that card of the itself. The by receipt foregoing paid was numbered account was, true, receipt since numbered but is Kennedy $5.00, fact, the sum of in issued to Tom handwriting receipt in the of the defendant. and the is foregoing A shown in connec- similar situation it with count four of the first information where ton appears appropriated own the defendant to her paid use the sum of C. C. Cox. $130.21 single good purpose out no It would subserve specific in bearing upon other counts of the evidence of our discussion will remainder formation. The general. counts connection with a number In was, money shortage found, which instance, employee in collected a nurse or other first clerk, Elwell, hospital. of these was Jane office One Lincoln, Nebraska, w7ho, living appears from now defendant, who, record, friendly to the we judge record, appear from refused to as a should Sjogren, witness case. Others were Grace Anette Beeler, Hagins, Nancy Lee Laura Ford—office clerks— Hoyme, Amy Sundquist, and Thelma Beatrice Farmer parties they These testified that —nurses. turned mon- ey by by collected re- them and shown unnumbered ceipts put a over to the defendant or it in drawer hospital. office of the for the defendant seem Counsel guilt to think that there doubt of the de- as the claim, because, they fendant in these as cases it actually money. not shown received the ways by money But the record which indicates two the so received is traced into the of the hands defendant. ledger One of these is in connection with the so-called speak particularly cards. And we of the time after Spencer, clerk, February, Jeane office left in 1942. It ledger has heretofore been stated that the cards of the patients showing payments contained column made by by foregoing them. The amounts collected em- ployees in connection with the counts in informa- ledger tion now considered are in fact found on patients, thereon, ordinarily cards of the entered at If, least, accordingly, ap- one of the office clerks. it pears ledger that these cards came to the attention of defendant, showing we come close to that she knew of money parties collected above-mentioned. defendant, superintendent hospital, primarily responsible money for the collection of hospital. Presumably due the pa- she knew when the hospital leaving, tients in the were ordinarily and that payments by them were made at that time. Presum- ably also she would at time or soon thereafter ledger examine patients cards of these and dis- paid. fact, cover what had been In the evidence of the office clerks above-mentioned indicates that after the payments date and amount of were entered them cards, ledger together these cards on with the un- recepits would be laid on numbered the defendant’s enter desk for her to on former the number she, receipts, exceptions, and that with numbered few actually whatever number was entered inserted. One showing payments division of the column was intended evidencing receipt entry such numbered for the of a might payments. such a number Not to have entered Hence, suspicion. was insert- one have created instant kept in de- receipt was the numbered book ed. Since office, private have been hazardous it would fendant’s money else, anyone attempt of in an to embezzle likely hospital, It is to enter such numbers. they current in numbers would have known the danger greatest They would have been in the that book. detection, and defendant would of almost immediate shortages. complaints no There is have entered of Sjo- complaints. The witnesses Grace evidence such Ford, Hoyme, Farmer, gren, Nancy Thelma Beatrice none; Beeler, and Laura Lee testified made that she think, testimony, properly we admitted. was Hence, highly probable it is that the numbers were en- tered, entered, by per- or were directed to be that, accordingly, sonally, and she knew of the amounts collected, they possession.. and that came into her But considered, in connection with the counts now the re- ledger ceipt correspond number of the cards does not actually receipt with numbered as issued. In other words, ledger entered on the numbers cards in or, expressed by cases are these false as the witness receipt support Reed: “One would be used numbered payment by people.” made two or more For in- stance, already as mentioned in the case of Jens Han- sen, Receipt actually No. was for the amount of Kennedy. issued to Tom $5.00 same number was ledger card of inserted Jens Hansen. No num- receipt payment by for the bered Hansen $183.45 actually issued. Hence that number entered on his ledger evidently card was false and was inserted mere- ly possible so that detection of the fraud only would be receipt of the after examination number ac- as tually theory issued. It is the of the state all of and, false these numbers were entered the defendant instances, most so far the counts now considered as concerned, to be are that was shown direct evidence correct, theory true. And to be of the state seems related, not alone in view of the but also evidence receipts, ac- reason of the fact that numbered when, tually time false issued at about these inserted, hand- numbers were in the defendant’s were writing, showing her at that time of books control containing Invariably receipts. the numbered cases in connec- which false was entered in number tion, least, information, at with the counts of the no correctly corresponding receipt issued numbered entry corresponding appears at all. No amount cash deposit book and no involved amount point, was made. The combined facts here described think, we credibility the to the who testi- of witnesses above-mentioned, fied as to the and correctness of the jury conclusion at which the arrived in these cases. Morever, receipt the unnumbered the car- book and copies bon receipts of the unnumbered contain- therein possession, ed came into the she des- defendant’s and troyed them, or sup- be caused that to done. was She posed, system by her, copy the adopted under to these receipts receipt the into numbered book and show the book, amounts received at one of the numbers that many but times she failed to do so. It is unbelievable that copies she did not examine the carbon of the un- receipts numbered not did know the amounts thereby, knowing shown she must have as known that copy the failure to the amounts as above-mentioned and the to failure turn these amounts over the hos- pital constituted embezzlement or the connivance at by others. The failure here mentioned embezzlement ignorance only grossest or to could be due to the the Judging generally intention to defraud. from what we glean record, ignorant. from the the defendant is not contrary, the On she strikes us as woman above aver- age intelligence. words, only reasonable In other know of each would to be that she conclusion seem hospital every by of item received others on behalf book; receipt she on and entered the unnumbered possession, and that she into her received these items by num- every appropriated item not shown said by de- receipts, not the cash book and and hence bered posit. only escape would seem from conclusion or all of employees that her did not in some receipt receipt use a from the unnumbered instances evidence, pos- contrary to the book. That sibility minimized, entirely dissipated, if of that is stated, by defendant, entry already num- of a as ber, ledger one, and that a of the false on the cards patients. counts, no there was of the with some

In connection testimony money turned over had been direct ledger on shown The amounts were defendant. receipt instances, too, number In these cards. entry no false. on the There entered cards deposit and no on the cash book amounts received here- we depositary bank. have was made What with false numbers in connection tofore said receipt receipts applies The false in these instances. above-mentioned, appear in which connection numbers constitute, in- information, with the counts of the record, part but a small of the total dicated Reed, receipt ac- false issued. The witness numbers countant, falsifying testified this method defendant, numbers, shortage the of the as discovered him, $23,276.17. amounts a total of In some in- to ledger stances, patients found, of the no card was but paid by the them was discovered in various amounts ways. instances, too, relating In these at far least so as information, properly in counts the there is no cor- responding receipt, entry numbered in no cash the book, deposit no of the involved. amount The wit- approximately Reed testified he found ness ledger missing; pursuant to the audit cards investigation shortage made, in ac- which he counts of the in connection amounted defendant that by namely $10,706.50; method, the sum of another by crediting hospital amounts than with smaller actually shortage received, he the accounts found a in $2,908.56; of the in further defendant the sum of that a shortage appears by of another method. The $373.01 shortage total in defendant, the accounts of the by him, found sum of $38,762.93. currency made, in

In the midst that was of audit hospital. The first the sum of sent to the $2,200 was sent on 1945 in the sum October $500. were in $200, others the sum of $900, $600, $100. in The sum of to Ernst and Ernst Denver. was sent $40 apparently All them were from Rawlins—four of sent envelopes hospital. envelopes in of the The first two superintendent were addressed the defendant as delivery hospital, by special sent letter. and were testimony on the There is Royal typewriter address was written de- oifice. Counselfor defendant’s type- fendant wrote claim that their client never on a by special delivery writer. The third sent sum was envelope hospital an of the the defendant addressed to superintendent, pasted as envelope on but the address was typewriter.

and written on a different One envelope of the lesser sums was contained an of the hospital and was shoved under the door of the office hospital. theory It seems to be the of the state that money hospital by this herself, portunity was sent to guilt, op- of her

conscious and that she had an procuring currency since she was on the. a vacation soon after the audit was commenced. The defendant in with conversation the witness Reed dis- ownership money, saying claimed of the that she had any money hospital never taken of the and that 40 theory of being is doubtless

she “framed.” It was by someone money was sent defendant money hos- who had embezzled some of else de- on the suspicion pital, cast or that it sent to was judge. jury to for the fendant. matter was one The hos- of superintendent became defendant The salary first was at August 15, Her 1940. pital about increased, and on gradually month, per was but $150 in addi- per month July 22, was the sum $225 salary paid total etc. The room, to her board and tion was superintendent during the time that she her evidence introduced $11,271.10. The state the sum of National during the First deposits in this time her her checking Rawlins, account in her Bank of both Savings and account, savings Federal and also in the checking account Her Association at Rawlins. Loan savings 1941, February, account her commenced October, her de- Bank on the First National Savings Loan Association posits Federal deposits shown various have combined the 1943. We the tiine not taken testimony, we have and while given items, here the amounts and recheck the to check deposits in the total approximately Her are correct. superintendent of foregoing while she institutions $29,383.75. difference The hospital amounted salary was the sum deposits and her these between attempt on $18,112.65. was made behalf An amounts difference in the to show that this appropriating by the defendant not come about did hospital. appears she received It funds from the checks from the from allotment about $600 $800 Sjogren Albert The witness United States Government. bought radio, and towels he a silverware testified that The of about from the defendant in the amount $285. Hoyes, hospital former nurse at the for witness Ruth a years, period of a little more than two testified that defendant, Denver, bought goods when at her annum, she, per in the sum of and that $200 $250 witness, repaid credibility the defendant. Her was a question jury. testimony for the indicates that bought goods others, including defendant for some of nurses, tell, the but so we did in- far as can this any great money, volve sums of so that the record be- fore us does not show the difference above-men- by anything compar- tioned was reduced than more a atively remaining small amount. fact this correspond difference does not to the amounts of short- ages not, course, testified to the Reed witness is important, may deposited since the defendant have other amounts other Her banks and in other states. checking account in the Raw- First National Bank at husband, joint lins was for time in the name with her testimony but the shows that the defendant made all deposits the importance point. so we see no in that course, might Of deposits the extra have come from perfectly legitimate. sources That matter within was peculiar personal knowledge defendant, necessary, nor should it have been counsel for argue, defendant that defendant take the witness stand explain money in order to the situation. The extra source; persons, partner- was derived from some from ships corporations. or parties At least some of the could produced testify have been that at least some money legitimate sources, came from if that was the fact, testimony but no produced, permitting such shown, inference that the difference above major part thereof, part money of the of the hos- pital which appropriated to her own use. showing reputa-

Defendant introduced evidence her honesty good. tion to be doWe not think it would any good purpose testimony subserve to set out other produced on her behalf aside from what we have men- tioned. None of it modify was such as to or to over- come the case testimony made of the state. Tak- consideration, ing foregoing we are into all of the facts perform any jury its would unable to see how which duty different properly a result could have arrived at jury case at bar. that arrived at from seem, need not would defendant, Counsel for the it greater making ef- better or blame themselves for not They did forts save the defendant from conviction. they simply appear to be such the best could. The facts counsel, ingenious, could have that no however able or they done better than did. Testimony Instruction Thereon.

VI. Collateral already noted, testimony re- quite As a little of lated to than those accounts of embezzlement other charged fifty-one specific informa- counts particularly tions. That was true in the case of charged witness C. W. Reed. testi- Error this mony damitted, should not have been but the courts generally agree do not with case such as counsel a State, 19, Wyo. the one before us. Edelhoff v. 36 Pac. 5 627; State, 466, 39; Lewis v. 22 30 Ariz. 248 Pac. J.C. may 1123-29. A S. full discussion of the rule be found Commonwealth, Shipp Ky. 634, v. 19 L. 41 S. W. 856. statement, prosecuting attorney, opening

The in his stated other than those that evidence of embezzlement directly charged in of the informa- the various counts showing purpose tions would be introduced for the motive, intent, systematically planned and a and. delib- erate embezzlement. Counsel for the defendant con- given tend that court should in addition have an instruction that such collateral evidence was admitted only purpose. for such limited No such instruction was requested. subject is discussed in 23 C. J. S. 415 856, and 16 appears C. J. from which it that an in- limiting purpose struction for which evidence of necessary. other often crimes is admitted is A number

43 Jaynes People, 44 v. homicide. In cases involved length 325, later 535, in the 99 mentioned at Colo. Pac. 71, 192, 34 Pac. 2d Reppin People, case v. Colo. is of other crimes it was said when such evidence attorney sought introduced, prosecuting to be sought purpose it to be should state the for which is requested, introduced, court, when should and that the limiting up by testi- proper such follow instruction bar, mony purpose. case at to a definite In the mentioned, prosecuting attorney, already stated purpose limited to collateral for which the evidence as crimes, matters, say, be in- is to collateral would troduced, request by the and no for an instruction State, requested. trial court was In Baxter v. Ohio 167, case, 456, St. the court 110 N. E. an embezzlement though attorney prosecuting held that even stated purpose the limited for which of other crimes evidence introduced, nevertheless, the failure of the trial give subject court to an instruction on the was error. case, In appears however, it that other embezzle- sought ments with be shown were not connected charged information, contrary embezzlement bar, testimony of which is true in at the case convincing. toas such other embezzlements was not In 23 C. S. J. it is said that no instruction of the limiting purpose testimony court nec- certain essary “where the evidence admitted to motive or show may supposed intent is of acts which well be to have been done in furtherance of such motive or intent.” A good Shipp illustration of is found the case of Commonwealth, supra. v. case That involved false entries the books of a bank a cashier —a case accordingly to the case The similar at bar. court held limiting pur- an instruction of the trial court testimony pose for which of similar were made entries unnecessary, stating: the court “In was the case at bar, may proper jury, while it have been to inform the testimony admitted, purpose

when the of its of the admission, which evidence admitted was of acts may supposed well be to have been done in furtherance general design bank, upon of a of fraud and there- ’ part gestae.” And, fore formed a of the in 23 J. res C. 950-951, general S. it is stated be a that failure to rule give limiting to purpose an instruction for which particular may evidence error in considered is not request think, according- the absence of a therefor. We ly, that of contention counsel for the defendant above-mentioned cannot be sustained. Necessity

VII. for Demand. argue Counsel for the defendant seem to that it was necessary to make a demand on the defendant for the payment money which was found to be due from her. court jury instructed the that defendant was prosecuted Wyo. 1945, under 9-322 Comp. Section St. which necessary. does not make a demand That section is as follows: officer, agent, clerk, “Every attorney, servant or em- who, ployee any person having to, access control or any possession money, thing value, article or possession employer entitled, shall, of which his take, employment, while purloin, in such secrete or in any way appropriate use, whatever own to his or to the others, money, coin, bills, any notes, credits, use of action, value, property choses in or other or articles of belonging in whose deposited with, person, or held such employment officer, agent, attorney, said clerk, employee may be, servant or shall be deemed guilty of imprisoned embezzlement and shall be penitentiary (14) years.” for not more than fourteen That statute was considered in the case Edelhoff v.

State, Wyo. 19, 627, 36 Pac. where was held that it necessary allege it a demand in the informa- tion for an embezzlement under this statute. That would seem to indicate that no demand would be neces- sary proven. to be In 18 Am. Jur. it is stated:

45 general accompanies a rule, “As if intent a a criminal agent misappropriation property of funds or held an fiduciary, complete the crime of embezzlement is and property the owner of embezzled need a de- not make return, mand for its to the absence of a statute contrary. only prove It is when other evidence to proof fraudulent conversion of is not available that the necessary.” a demand is See also 29 suf- J. S. and C. J. 429. There was C. ficient intent evidence this case to show criminal objection above-mentioned and the above-mentioned must be overruled. Deposits

VIII. Defendant’s in Bank. Bible, ofOne the witnesses for the state was Robert Cashier and President of the National Bank Vice First He Rawlins. testified the defendant a check- had ing bank; that, savings account and a account in the during superintendent the time that defendant was deposited hospital, she in these accounts net that, $27,846.64; amount, sum of of this to from $600 consisted of allotment checks from United $800 Government, $11,271.10 States and the sum of salary time, during which defendant received this leaving unexplained nearly $16,000 the source of objected deposits. these The defendant to this testi- mony ground, first, proved on the the state had not case; corpus incompetent, delicti in the that it'was immaterial, second, irrelevant the reason, attempt compel it was an indirect to the defendant to against testify herself, third, because it was a con- privileged fidential and matter between a banker and depositor, which could not be disclosed former objection over the of the defendant. further ob- jection is raised this that the court was in- witness competent, so but far we can point find that below, not raised in court so we need consider not sustaining it. no Counsel have cited cases- the last court, we know of objections in the trial made attempt compel none; it was an think that nor do we surely against It testify herself. the defendant testimony prejudicial the defendant rule that merely by of the fact that reason must excluded explain it. au- only can No one who is the As a matter of cited. thority effect has been to that say that stated, to fact, already is no reason there explain only person who could was the the defendant belonged fact, legally her. they, to in deposits if these nothing legitimate sources, money from If received she why have had at could not appears in the record she parties received it to from whom she of the least some objec- foregoing the the testify first of in the case. On corpus delicti should not tion, if the ruled that the court testimony order stricken. The proven, would be largely testimony in the discretion of producing is Bemis, 218, Wyo. 34 242 Pac. v. State the trial court. foregoing rulings Hence, we see no error 802. the court. Bailiffs.

IX. Oath of stated, together jury kept already were dur- As permitted not ing trial and were time of the the whole although it in discretion of the was separate, to separate when the court was permit them to court 10-1315, Wyo. Comp. 1945. St. Section not session. bailiffs, charge who took placed in of two They were immediately jury after were oath as such their again they have taken should It claimed sworn. is jury sent out to find a verdict. It an when oath however, 23 in C. J. S. that: “Where the is, stated charge jury inception from of the has same officer sworn, properly necessary it is has been the trial and specially sworn each time that he he be retires jury.” with that the oath taken

It is also bailiffs claimed

47 provisions with the of our did not conform statutes. The oath administered them as follows: you faithfully solemnly do will “You swear honestly perform term present Bailiffs at the duties of Court; you obey will all instructions of this your jury placed a of custody during and that when is Court any case, you will not allow the trial of jury anyone separate to converse such nor allow them, anyone, nor them with with except upon turn them allow to converse Court; you will re- order of and that this may help order. So into Court as the Court you God.” 15-122, Wyo. Comp. pre- Our Statute Section St. charge placed scribes oath to be taken a bailiff court, jury justice’s of a in a criminal case in but no specific prescribed oath in the trial of criminal Wyo. Comp. case in the district court. 10-1315 Section provides proceedings provided that: “The St. jury, law in civil cases as to the conduct of the the ad- court, returning and the manner of monitions indictments, verdict, upon the shall be had all trials on may proceedings applicable, so far as the be and when provided.” Wyo. it is not otherwise Section 3-2410 1945, relating Comp. cases, provides: civil St. to submitted, jury may the case is the decide in “When deliberation; jurors retire, or if court retire the together they kept place, must be in some convenient charge officer, they agree upon a the of an until under verdict, discharged court, subject or are to the permit separate of the court to them to discretion meals; night, temporarily at at their the officer having charge any com- them under his shall not suffer himself, them, any make to be made to nor munication agreed except they upon ask them if their ver- have not, dict, court; by order and he shall unless any rendered, communicate to before their verdict is deliberations, person state their or the verdict agreed upon.” Assuming the oath taken should bailiffs be compliance provisions in substantial with this section, any they we find that must not commun- suffer ication to be made to while the oath taken was them, they anyone with should not allow to converse 632, jury. Chitty’s In 1 Law we find the oath Criminal prescribed permit to the effect not that a bailiff should anyone “speak” jury. supra to the Section 3-2410 provides any also that the officer should not make com- jury himself, exception munication with the with the actually mentioned in the statute. The oath taken was permit jury that he should to converse with anyone (which himself), would include the officer ex- cept upon improvements order of the court. While might actually taken, made the oath we do not therein, deficiency any, if think that the was such as to judgment court to reverse the on warrant this herein ground. Furthermore, court, Instruction jury as follows: No. told you charge while are instructed that are in “You n bailiffs, discuss, you will not a any room bailiff or or in sworn case, for except while in manner deliberate convenience, your provided the Court only while under locked doors and while no then other hearing. person present or within is necessary during your it become “Should deliberations you meals, bailiff to conduct for the or bailiffs or to night you dormitory, retire with for the to the or other ; sleeping quarters upon retiring instructed “You are to such dormi- tory sleeping quarters, or the bailiff of the in- Court is sleep .you, structed to room same with and while you from you charge, going to, returning are in his during, and meals, you, or while he room the same with discuss, any deliberate, will not or in manner talk about the case.” is no provisions There indication in the record that the supra violated, of Section 3-2410 were or that the bail- jury guilty any iffs or the were of misconduct. The ob- jections of counsel herein discussed were not made un- jury til the think, returned their verdict. We accord- ingly, assignment of error in this connection should be overruled. See C. S. J. 1013.

X. Reference Testifying. to Defendant Not

The defendant did take not the witness stand. It is contended that reference thereto was made Mr. Johnson, state, of counsel for the in violation of Article 1, Section 11 of State, the Constitution of the which provides person compelled testify “no shall be to against any case;” also, himself in criminal in violation of the Fifth Amendment of the Constitution of * * * States, providing, person United any “nor shall compelled against himself, be to be a witness nor be life, deprived liberty property pro- of without due law;” of and also cess in violation Section 10-1201 Wyo. reading ,as Comp. St. follows: cases, “The in all criminal in all the courts state, may witness, in this be sworn and examined as a elect, required testify any if he so but shall case;, neglect testify or refusal shall not any him, presumption against any create ference be made shall re- nor to, any nor shall comment be made upon, neglect testify.” such or refusal to point puzzled here involved has as well as troubled meager us no little in view of the record before us. As nearly record, we can tell from the the court was recess, judge and the trial inwas chambers 10:30 at 25, 1946, M. day A. on June the last of the trial. A recess then day, taken to 1:45 P. M. of the same purpose preparing the court’s instructions. Exception was reporter’s taken to some of them. The giving do Chambers, presence the of the out in

ings had were jury, to-wit: objects to now The Defendant BRYANS: MR. “BY argument, closing where- portion of counsel’s latter the explained not her bank had Defendant the he said in jury instructed be now the accounts, moves that and the it, be stricken from disregard the same and to record. granted and will motion THE COURT: “BY disregard it. jury to instructed

the for a now moves The defendant BRYANS: MR. “BY the remarks reason that case for the this mistrial may closing argument at this time in his of counsel against jury the tendency prejudice the to had a have rights to the defendant, prejudicial and same is the of the of the Statutes violation defendant and the provided. Wyoming, and case made in such State case a mistrial of this moves further The Defendant has because, notwithstanding the the fact that Court record, granted from the same a motion to strike jury, were made to this of counsel the said remarks whether impossible determine it is for this Court to and such remarks minds may may be eradicated from not jurors. memory individual is denied.” “BY THE The motion COURT: court, it is stated that the In the in this brief state’s argument of argument of Mr. followed the Johnson defendant, Bryans, Mr. chief counsel for argument argument by the Johnson’s followed Mr. state, Muir, and it is further of Mr. of counsel for the defendant made stated: “At the time counsel judge objection, re- nor counsel his neither the trial language in his Mr. Johnson called exact used * * * closing argument. then, Johnson stated Mr. contends, request he that he made no such or com- still language jury. It will be noted that ment marks, quotation explained ‘The her defendant has accounts,’ possibly Mr. could not be correct. bank What said, he he and what still contends Johnson contended said, attorneys have he is ‘that defendant’s failed explain the defendant’s bank accounts.’” Similar argument statements were made in the oral in this court, they and we do not recall were contradicted by counsel for the defendant. It is unfortunate record fails show the facts as now contended shape counsel for state. In the which we find the record, certainty it lacks which would make a solu- satisfactory. point tion of the before us The record fails to show that Mr. stated Johnson that, explained “The defendant not bank ac has her counts.” have the mere We assertion of counsel for the assigned defendant to that effect. Matters as error appear affirmatively record, by should on the not the (See mere statement of counsel to what as was done. State, Wyo. 66, 80, 606). Boulter v. 6 42 Pac. Nor is it plain whether or not meant counsel to the state exact language alleged merely gen to have been used or the give lang If eral effect of it. he had meant to the exact uage, then it would seem counsel should said “de have explained fendant not her bank has accounts” instead saying explained that “defendant not her had bank important accounts.” How it is that the record should language gleaned, may show the exact before us instance, for the from able discussion in State v. Mona 289, han, 102, 96 114 Atl. and see Conn. Miller v. Com monwealth, 459, 890, Va. 153 149 S. E. A. L. R. 1102; Commonwealth, Mundy v. 161 Va. 171 S. judge is apparently E. 691-696. It true that the trial acquiesced in the assertion counsel for the defend ant, point and if should the we reverse case on the un discussion, solely it der would have to be because of acquiescence implied judge, that of the trial since there nothing support is else to record the assertion of Bryans. say Mr. is It almost needless we should be reluctant to base a reversal on foundation, such a having unequivocal without before us an statement of judge the trial that Mr. Johnson stated exact ac- explained her bank “The has not words: defendant Bryans counts,” possibly Mr. meant assert. as chambers, probably to the judge, as doubt trial Johnson, by language Mr. sustained used exact disregard jury the state- for direction to motion give Johnson, as to of Mr. so ment de- “The The exact statement: his doubt. benefit of would, accounts” explained her not bank fendant has judge fear, fatal. But trial perhaps have been we a mistrial. So it the motion for promptly overruled did not statement quite apparent he consider He have actually fatal. must made Mr. Johnson as meaning Bryans interpreted of Mr. the assertion language used Mr. Johnson the effect explained her bank had the defendant justified in that And we think that he was account. Bryans interpretaton, Mr. makes assume that we infallibility; in- we attribute such nor can no claim to making ruling judge. last fallibility In to the trial mentioned, judge have been at least trial must Johnson, language the exact used Mr. doubtful as to may above, he even certain or, as indicated have been language way in no fatal. In view that the used may uncertainty as what have been in the trial to apparently acquiesced judge’s mind when he Bryans, Mr. that we assertion of it would seem should give apparent acquiescence hesitate to the force which counsel for the defendant now claim for it. difficulty confronting all, any part, us cannot if judge. laid at the door of the trial It be could have been by easily they for the avoided counsel defendant. All request arguments needed to do was that the for the reported. They request, be state made no such and no report Again, they thereof made. could have promptly objected open court in at the time when the made, offending might statement was so there be stated, actually no doubt as to what was and not leave

58 they conjecture. uncertainty the matter But and judge and the trial waited until court stood in recess us, chambers, inwas the record stated in before they gen any objection. a before made It is rule objections erally promptly. v. should be made State Wilson, Wyo. 37, 803; People, 32 228 97 Pac. Webb v. 262, 381; And, Colo. 49 2d 23 it is Pac. C. J. S. 595. objection further held that make accused should his publicly, open State, Gillespie court. v. 85 Tex. Crim. Rep., 967; 210 S. W. 23 J. 597. In Horn v. C. S. State 705, Wyo. Potter, quot 80, 163, Pac. Justice after ing length dealing at from an Iowa with case miscon holding State, objection duct of counsel and promptly, say: should be made ad had this to “As an ap ditional reason for the rule have been we led to may prove, judge ordinarily it be said that the trial will capable fairly determining be more whether language legitimate prejudicial if his attention be Weber, called to it the time.” In at Commonwealth v. 481, court, 167 Pa. speaking 31 Atl. of mis prosecuting attorney, conduct stated: judge expected anticipate “No can be the line of argument improper adopt, against counsel will and caution him judge speech; may does, a often of his motion, stop improper statements, own counsel may give administer rebuke. But he close attention say addressing jury; all that counsel when nor required to; duty counsel, he opposing is and should that is the argument objectionable, if the objection be court; at once be made to then the can words be taken down reporter, the official and made the subject ruling court, and review here.” pursued Had bar, that course been in the case at dif- ferent situation us, would be before we could then be more actually certain as to what was said and what judge trial having the understood as been It said. is unlikely that, all not at when an interval of time inter- argument vened between the made Mr. Johnson chambers, the judge his was in time when trial the actually took the state for facts mentioned in the brief disregard and ex- But, denials place. if we must state, in made this planations as of for the counsel perhaps court, will which the defendant on counsel for solely insist, rely on we be technical and and if must ignore only part, here, a not we must the record then said on everything state have that counsel for the but chambers, subject, including presence in their shows, us, far the record as situation then before so recess, states the record this: The court was is in question place in proceedings here in took there, Mr. judge as as well chambers. The trial appear Bryans, It spoke. does for both of them anyone not show that else was The record does there. op- present to an for the were as have counsel state so Bry- explain Mr. portunity deny of to the assertion or justify or of law would ons. We know of no rule indulging presumption that certain authorize us a par- present judge’s a chambers at counsel were at the being particular Not occasion. ticular time on a opportunity present so to have the shown to be Bryans above-mentioned, of assertion Mr. neither the judge implied acquiescence above- of the trial nor binding can on the state. fault mentioned be held herein, course, before in the defect the record of lies of present duty appellant to this of us. It was the pass on a which enable court to court record would resorting complained of, to con- without error jectures. of states,

In a held that “Misconduct number it is commenting prosecuting attorney failure a on the a testify result in mis the defendant does not reversal, carriage justice warranting when the clearly guilt established.” evidence of the defendant’s already have heretofore indicated A. L. R. 791. We guilt not, defendant. need our view as We go not, applic and do so far as to hold rule be this to positive able when it is clear and was ac as- what tually stated, but we think that the rule should applied in a open question case where it is as what actually said, as is true in the case at We bar. think, accordingly, assignment error foregoing connection must be overruled. points argued.

A few other are have considered We them with do any prejudicial care. We find error Among points connection therewith. these spectator fact that a made a remark to the witness lengthy argument Reed. A is made in connection with was, this irregular, matter. While it was of course it shows, perfectly so far as the record harmless.

Finding error, judgment no reversible is af- firmed. J., J., C. concur.

Riner, Kimball, ON PETITION FOR REHEARING AND ON MOTION FOR DIMINUTION THE OF

RECORD (November 1948; 9th, (2d) 969) 198 Pac. General, Cheyenne, Wyo- Gray, Attorney

Norman B. Wyoming, ming, Springs, and K. Muir Rock S. W. A. Briggs Rawlins, Wyoming, plaintiff and re- spondent.

OPINION ON REHEARING Justice. Blume, rehearing petition filed herein

A for a has been again They counsel for the discuss defendant. attorney prosecuting from the brief the removal case, opening statement, questions his with refer- testimony, objections ence to collateral raised against points certain considered these witnesses. We original opinion fully them rather in our discussed pointless, in this case. Further would seem discussion change opinion thereon. and we have been unable to our urged considering It when whether or not granting judge in not trial abused his discretion venue, change of we consider the fact that did not Sec- 3-1906, original partially cited in the tion W. C. S. opinion, provides appears it that: “If the court judge, upon hearing, that the trial would be more such impartial county, application in another shall be granted.” argue (Italics supplied). Counsel degrees impartial just statute makes an as of trial degrees negligence. speak of of re- courts statute lating subject is, herein, to this in so far as relevant as follows: may “The defendant in a criminal action make an affi- stating he davit believes he cannot receive a fair owing prejudice judge

trial to the bias or of or the against prejudice county; excitement or him in the ** * if the affidavit sets forth that there is excitement prejudice against defendant, county or prosecuting attorney may in the thereupon traverse his allegations defendant, affidavit the or of court judge trial before him at presented shall thereon down issue so for set the time, stated a which at time both respective affi- support

parties appear their shall affidavits, orally or davits witnesses examined judge, upon hear- appears if or such it to the court ing, county, impartial in another that the trial would be more granted.” application shall be exactly like We have found no statute of another state may ours, It and none called our attention. has been according part of the section be noted that the first quoted, the as to whether issue to be determined is county not the defendant can have a “fair” trial charged. in which he is The term “fair” doubtless equivalent “impartial”, and we do intended as the of point not broad- think that the meant the statute when, section, part ened it mentions the latter degrees impartial” a “more natural There are trial. negligence. degrees impartial- There are no natural ity. tautological impartial” merely The term “more is expression “impartial.” dif- Even if there were a ference, question in connec- of abuse of discretion just impartiality” tion with “more would be as difficult to determine as an of discretion in connection abuse “impartiality,” to assert with unless counsel mean appears part any prejudice if it on the that there any persons against county a defendant in the in which charged, change granted he is then a of venue should be as a matter of course. cannot read the statute as it We clearly stands that manner and we did not consider way Vines, Wyo. 212, it in that 54 Pac. State vs. 826, although point 2d that exact was not discussed therein. original opinion, question

In the we discussed the Johnson, state, to whether or Mr. of counsel for the jury: explained stated to the “Defendant has not her bank accounts.” held We record was so in- point on that definite that we could not reverse the any objections case on account of made in connection for the have now therewith. filed in Counsel

59 and correction court a motion for diminution this by supported affidavits. the record. The motion is Briggs, Briefly, Mr. affidavits that it is stated in these case; state, opened that he counsel for Johnson, for the by of counsel also followed Harold argument state, of Mr. and the close of the that at making Johnson, reference immediately upon him arose, in defendant, counsel for the defendant objections mentioned open and motions court made the argu- original opinion. they in their And insist “Defendant ment at time Mr. Johnson stated: this motion be explained If the has not her bank accounts.” in one record corrected construed as to have the State, court, etc. with the case trial then we are met Allen, 1058, Wyo. 51, and cases therein vs. 288 Pac. cited, application for with- in which it is held that an appeal for from drawal of the record on correction memory close of the of witnesses late after the is too rendered, judgment at which the has been term only upon or minutes it can then be amended judge. possession It does in of the court or memoranda appear affidavits attached the motion any are in minutes or memoranda thereto that such however, judge. possession We, of the court or should be motion to mean that record construe the point, it is stated corrected this court. On errors, from clerical S. that aside some C. J. exceptions. appellate amend bill of court cannot an That, course, applies Appeal. to a Kecord on It also foregoing authority: is said only appellate upon court acts the record of “Since up in which made the court the court below as place, proceedings took in the absence of statute trial the power appellate to amend the bill of court has no parties, exceptions, even consent of and defects only in trial court.” therein are amendable Again, Jakway, in the case of Hatfield vs. 102 Neb.

831, 170 N. the court held the record in a W. case should not amended the case had be after been argued by appellate and submitted and decided stated, among things: court. The court other days only reporters, “Before the of official court obtaining party a method preserve submission review for each was and, exceptoins, the evidence and his after party, to the adverse have the court settle them, part and make the bill a This re- record. sponsibility appealing party. still rests on the heWhen presents party court, his bill to the adverse he and the correctness, vouches for its ait and when the court makes part imports verity, only of the record it and can by being be corrected withdrawn and corrected in the from court which it comes. a comes too Such motion Otherwise, late after the case been re- has decided. a viewing record, might spend court upon time and labor case, and, decided, such as in this after it was compelled be again.” to review the whole case Again, counsel for the state have filed a resistance to supported by motion made herein. affi- That is Briggs, davits of prosecuting attorney, by Mr. W. Muir, state, A. one of the by counsel for the and Harold Johnson, M. also one of the counsel for the state. We just are not certain even now Mr. what Johnson stated argument jury. his to the He tells inus his affidavit fully he aware of the law that no reference taking to the defendant not the witness stand should made, Bryans Mr. objection that when made the discussion, strong disagreement under “there was a Bryans between the affiant and Mr. as to the exact argument.” swears, words used in the affiant’s Mr. Muir among things, other by the motion made Mr. Bryans, objecting to the statement made Mr. John- son, just chambers, made in as stated in the record Among things, before us. other he states: Johnson, during argument “That the said Harold his Jury, to fendant’s Court and at no time mentioned de- name, and at no time stated: De- ‘That the explained has fendant not her bank accounts.’ That the Johnson, during argument, Harold did not said his state, accounts,’ refer to defendant Jury’s explained ‘that the Defendant had not her bank recalls, any manner, nor did he in as affiant personally, attempt to call to the attention, either in- direct statement or fact, nuendo, the defendant had been sworn stand, and taken the witness or testified in her own behalf.” Briggs substantially The affidavit of Mr. to the same foregoing, effect. In view of the we think that denied, motion for the correction of the record must be we and must adhere to the conclusion arrived in the at original opinion. all, counsel, eloquent After in their appeal court, to this overlook the basic fact that it is our function to determine whether or not the record affirmatively prejudicial discloses error to the defend- not, duty ant. If it does it our is solemn to affirm the judgment. Painstakingly as we have examined the conclusion, not, though record, we have come to the perhaps, misgivings, without some that it not dis- does judge presumed close such error. The trial know is not, think, the law. It is we unreasonable for us to con- clude, already substantially original stated in the opinion, really if that Mr. Johnson had in fact amade statement, prejudicial granted he would have the mo- having so, tion for a mistrial. Not done we are not justified indulging- presumption in the fatally prejudicial, statement made Mr. Johnson was justify contrary nor conclusion because of the asser- Bryans. tion made Mr. petition rehearing

In addition to the for filed herein, counsel for the defendant we have before us signed by personally, a document may petition rehearing which we consider aas for filed by herself. We need not comment on this unusual as- pect say anything propriety toas thereof or as we to what should do in another case where a similar might of the appear. The and substance sum situation trial, that in another personal is document defendant’s go refute and ex- on the witness stand and could she her, against charges makes a she plain made appears of what in contradiction number of assertions apparently, doubtless us. She record before generally, many laymen believes that with common open appeal, for on it is court a case comes this when hear no new evi- not true. We purposes. But that is all merely upon the record as the case We consider dence. court, brought and we con- to us from the trial it is law, merely questions not of fact. We can do sider quote we in the recent from what said than no better 1948, Koch, January, decided vs. of State case Wyo. 2d 175 189 Pac. 169: appearing in 64 jury posi- judge in much better and the were “The trial evidence, court to substitute weight judge and it is of the tion not our there ordinarily province of this case, when, jury inas this judgment that of the believed, evidence, if to convict sufficient * * * responsibility for conviction The defendant. belongs. jury properly upon where it herein rested * * * judge he saw approved the verdict and trial It would seem witnesses on the witness stands guilty, and we are not felt that the defendant is he wrong.” say he position be able to a woman, highly intelligent, Defendant, proud, al- a make ways chose to her freedom as she accustomed to agonizing probability of it, with the is now confronted years enough to daunt several confinement for — personal petition herein like heart. So her stoutest now cry in which she of her mental wilderness out cry. can We can understand herself. We finds callous; Judges chord of appreciate it. are their suffering, too, human to human sympathy, is attuned to agony, of others. our pain, as is that But to human prescribed the constitution power It is is limited. defy ignore of this state. We cannot laws and the sought had, it must be to be provisions. If relief is these power different with vested of authorities the hands at rehear- petitions for in this court. vested from that accordingly denied. ing herein must J., J., Kimball, concur. C. Riner, notes not mention the instructions arguments jury or open of counsel in court. The only point question reference to here is as fol- lows: “WHEREUPON, argument following at the close for the State, by Johnson, Mr. proceed- Harold

Case Details

Case Name: State v. Hambrick

Court Name: Wyoming Supreme Court

Date Published: Aug 3, 1948

Citation: 196 P.2d 661

Docket Number: 2367

Court Abbreviation: Wyo.