STATE, Respondent v. MYERS, Appellant
File No. 11304
Supreme Court of South Dakota
August 2, 1974
220 N.W.2d 535
“A lien upon property which is the subject of litigation generally gives a right to intervene in the action. Under this rule one who has a lien on the property affected by the suit, or whose lien may be impaired by the judgment, is entitled to intervene in such suit * * *.” 59 Am. Jur. 2d, Parties, § 151, p. 584.
Finally, we feel constrained to point out that the question herein involved is strictly procedural in nature and it is not our intention to comment on the several substantive issues of law presented by this fact situation nor reflect on the ultimate outcome.
Reversed and remanded.
All the Justices concur.
William J. Janklow, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Kermit A. Sande, Atty. Gen., George S. Mickelson, William J. Srstka, Jr., Sp. Asst. Attys. Gen., Pierre, on the brief.
WINANS, Justice.
Defendant was indicted by a Grand Jury in Brown County, South Dakota on September 11, 1972. A change of venue was granted to Brookings County, South Dakota, where the trial was held. The indictment contained two separate counts, the second of which was by the circuit court eliminated from consideration by the jury. It will not be considered further.
Count I is in the following language:
“That Morris B. Myers, on or about the 9th day of January, 1970, in Brown County, South Dakota, while being an attorney duly licensed to practice law in South Dakota, had under his control certain property for the use of another person, to wit: cash in excess of $50.00, said property being entrusted to him by Jeanette Zick, and he did then and there fraudulently appropriate said property to a use or purpose not in the due and lawful execution of his trust contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of South Dakota.”
The jury returned a verdict of guilty on Count I, and defendant was given a two-year State Penitentiary sentence by the court. The defendant appeals under numerous assignments of error, but in his brief on appeal eliminates all except two questions which are covered by the assignments as herein numbered.
The defendant presents such questions as follows:
“I
“DOES THE RECORD SUPPORT THE CONVICTION OF DEFENDANT OF THE ACT AND INTENT NECESSARY TO CONSTITUTE EMBEZZLEMENT? (Assignments of Error I and IV)
“II
“DID THE COURT ERR IN REFUSING TO ALLOW THE DEFENDANT TO TESTIFY AS TO THE REASONS WHY HE BELIEVED HE HAD THE RIGHT TO CASH THE BONDS AND PLACE THE PROCEEDS IN HIS BANK ACCOUNT? (Assignment of Error II)”
The key words in the first question presented for review by this court are “act” and “intent“. Is the evidence sufficient in this regard?
“* * * As a reviewing court we must view the evidence in light most favorable to the state on appeal from a conviction. This court held in State v. Geelan, 1963, 80 S.D. 135, 120 N.W.2d 533, 536:
‘Accepting the state‘s evidence and indulging the most favorable inferences which can fairly be drawn therefrom, as the jury had a right to do, we have no hesitancy in holding that the evidence is sufficient to sustain the verdict.’
The North Dakota Supreme Court has so held in State v. Moe, 1967, 151 N.W.2d 310.”
The section defining the embezzlement charged here is covered by
“The facts were for the jury and this court will not disturb the verdict unless the evidence as a matter of law is insufficient to justify the jury finding defendant guilty.”
The credibility of witnesses and weighing the evidence is for the jury. State v. Burtts, 81 S.D. 150, 132 N.W.2d 209; State v. Buffalo Chief, 83 S.D. 131, 155 N.W.2d 914. In the recent case of State v. Hanson, 1974, 88 S.D. 48, 215 N.W.2d 130, quoting from an earlier case, we said:
“‘When the state has introduced evidence upon which, if believed by a jury, they may reasonably find the defendant guilty of the crime charged, the state has
made out a prima facie case, and the jury, not the judge, ought to pass upon it.’
The jury heard the evidence as offered by the state and the evidence offered in support of appellant‘s defense. As indicated above, the trial court permitted wide leeway in letting appellant develop his defense. His defense was also fully covered by the court‘s instructions. Thus the question of appellant‘s guilt or innocence was fairly and fully submitted to the jury. It is well established by decisions of this Court that ‘The jury are the exclusive judges of the credibility of the witnesses and the weight of the evidence.’ ”
It would extend this opinion beyond reasonable length to review the evidence fully herein, so we will briefly summarize.
The parties in a divorce action, Mr. and Mrs. Zick, called on Mr. Myers to get the divorce. The husband was to pay for the legal services, and defendant Myers was to get the divorce for Mrs. Zick. Certain United States Savings Bonds, property of Mrs. Zick, registered in the names of Herman Weismantel, P.O.D. Mrs. Jeanette Zick, were discussed. The defendant told Mrs. Zick that the value of the bonds would bring a better rate of interest if they were cashed and invested in something else. Mrs. Zick was requested by defendant to endorse the bonds, which she did. The defendant then took the bonds so endorsed to a local bank for redemption, and the bank sent them in to the Federal Reserve Bank. The defendant on the strength of the bonds and his personal note borrowed from the bank the amount of the redemption value in the sum of $4,035.60 which he deposited in his own personal account. The defendant gave his personal note to the bank. He told the banker that he needed the money that day so that he could give the money to Mrs. Zick because of her financial condition. Defendant asked the banker if he could borrow the money, then when the proceeds were received, to apply “those against the note to pay it off.” This was what was done, and when the proceeds of the redeemed bonds were returned to the bank, the note signed by defendant was canceled as paid in full. The bank endorsed the check from the treasurer of the United States with a credit and guaranteed the endorsement. It was not endorsed by Mrs. Zick.
It was Mrs. Zick‘s testimony that she discharged defendant as her attorney the end of February or first part of March 1970, and it was not until some time in April 1970, and after she had discharged him, when defendant first told her the bonds had been cashed “but he didn‘t have time to go into what they had been invested in.” This was the first time she had been informed they had been cashed. It was not until August 1970 that defendant paid the proceeds of bonds over to her new lawyer, less $617.50 for attorney fees for services rendered by him in the case of Zick v. Zick. The statement dates from December 30, 1969 to March 2, 1970. The remittance from defendant to Mrs. Zick‘s new attorney is in the amount of $3,418.10. Mrs. Zick received her divorce through the services of her new attorney.
We have given but the skeletal outline of the claims made in the case. The stories told in court by Mrs. Zick and the defendant were conflicting, and also the banker‘s testimony was damaging to the defendant. It was for the jury to search out the truth.
“The Court erred in overruling the objection of the defendant to the introduction of any evidence under the indictment for the reason that the indictment failed to state a public offense or charge a violation of any law of the State of South Dakota.”
The law which defendant is charged with violating is
“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator, or collector, or being otherwise entrusted with or having in his control property for the use of any other person or persons or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with the fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”
At the beginning of the case defendant‘s attorney made the following objection:
“Before any testimony is taken, the defendant objects to the introduction of any evidence on the part of the State for the reason and on the grounds that the indictment fails to state a public offense or charge of violation of any laws of the State of South Dakota, and in fact, I point out to the court that the indictment fails to allege the ownership of the money and fails to allege the name of the person against whom the offense was committed; that being wholly as required by the statute. And for the record, that is
SDCL 23-32-5 .”
“The indictment or information must be direct and certain as it regards:
(1) The party charged;
(2) The offense charged;
(3) The name of the thing or person upon or against whom the offense was committed.”
The trial court overruled this objection, and we believe correctly. The indictment stated that the person who had entrusted the money to the defendant was Jeanette Zick, and it sets forth the facts done by defendant upon which he was being charged.
In State v. Blue Fox Bar, Inc., 1964, 80 S.D. 565, 128 N.W.2d 561, 563, we stated the rule to be:
“The test of the sufficiency of an information under these provisions is whether it apprises a defendant with reasonable certainty of the nature of the accusation against him so that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455; State v. Wood, 77 S.D. 120, 86 N.W.2d 530; State v. Belt, 79 S.D. 324, 111 N.W.2d 588.”
See also State v. Henry, 210 N.W.2d 169, supra, at pages 173, 174.
Assignment IV under question I reads as follows:
“The Court erred in denying the defendant‘s motion for a directed verdict of acquittal for all the reasons stated in the motion for directed verdict of acquittal made at the close of all of the evidence.”
The motion made at the close of all the testimony is a long one which we will not set forth at length. We reiterate this, however, the evidence was conflicting. If Mrs. Zick was correct in her testimony, if the banker was correct in his, then the defendant was wrong in certain crucial aspects of his. There was at least a prima facie case made by the state “and the jury, not the judge, ought to pass upon it.”
Point II or Question II by appellant brings up a ruling by the trial court refusing to allow the defendant to testify why he in good faith believed he had the right to cash the bonds and place the proceeds in his bank account. This defense is specifically authorized by
“Upon any trial for embezzlement it is a sufficient defense that the property was appropriated openly and avowedly and under a claim of title preferred in good faith even though such claim is untenable. But this provision shall not excuse the retention of the property of another to offset or pay a demand held against him.”
This assignment is predicated upon the offer of proof which was made by the defendant at the trial. It is predicated on the following questions and answers:
“Q Mr. Myers, did you believe, when you completed this transaction over at the bank, and the banker put the money in your account, did you believe that you had the right to do that?
A Yes, I did.
* * * * *
would you state why you believed you had the right to do it?
A I was authorized by Mrs. Zick when she signed the bonds.
Q Did you continue to believe that you had that right, up to and after you completed the deal?
A Certainly.
BY MR. BUTLER: Now I would just like to point out to the court that this offer of proof is based on
SDCL 22-38-10 .* * * * *
BY THE COURT: Well, it seems to me that it is a self-serving statement as to what he believed. The testimony here is that she endorsed the bonds and he received the proceeds which were put into his checking account.
Well, I am going to permit the answer to that first question, that he believed he had a right to put that in his account. That is as far as we will go with it. That is the one that was stricken out.”
The jury was returned and the court had the reporter read the first question of the three asked, and the answer to it, to the jury. This limits the error, if any, to questions two and three and their answers.
The contention of defendant is stated as follows:
“The state of mind of the Defendant was clearly a material issue in this case under
SDCL 22-38-10 . Denying him the right to explain his actions was highly prejudicial. The Court submitted the issue of the Defendant‘s good faith to the jury in the instructions, but yet denied him the right to state to the jury what his state of mind was and his reasons therefor. This clearly was prejudicial error.”
We believe the court was clearly wrong in his denial of the last two questions and the answers. Warner v. Hopkins, 42 S.D. 613, 176 N.W. 746; State v. Holter, 30 S.D. 353, 138 N.W. 953; Wigmore on Evidence, 3rd Ed., § 581, pp. 714 and 715.
In State v. Reddington, 80 S.D. 390, 125 N.W.2d 58, we held:
“There is no definite rule by which to measure prejudicial error and each case must be decided on its own facts.”
In a definition of prejudicial error we have said:
“Prejudicial error is such error as in all probability must have produced some effect upon the final result of the trial, namely, the verdict of the jury.” State v. Pirkey, 24 S.D. 533, 124 N.W. 713.
An examination of the whole testimony of the defendant shows that it is replete with questions and answers of similar content and importance to the defendant‘s contention. Actually there is nothing in the offer of proof that wasn‘t fully and completely before the jury by the evidence of the defendant himself. We hold that the denial of the two questions together with their answers in the offer of proof was simply not prejudicial under the circumstances. It added nothing to his previous testimony and a reversal on this error would be to exalt form over substance. The defendant had a fair trial.
The judgment is affirmed.
DOYLE, J., and RENTTO, Retired Judge, concur.
BIEGELMEIER, C. J., concurs by opinion.
DUNN, J., concurs specially.
RENTTO, Retired Judge, sitting for WOLLMAN, J., disqualified.
BIEGELMEIER, Chief Justice (concurring).
DUNN, Justice (concurring specially).
I would concur in affirming the decision of the trial court under the facts of this case. I believe, however, that a word of caution is in order as to the implications of this decision.
The intermingling of a client‘s funds with his own by an attorney is a serious breach of trust and has always been frowned on by the legal fraternity. I am sure that most attorneys have trust accounts for their clients’ funds, but to those few who don‘t I would state that this charge of embezzlement should be a red alert; a trust account for clients’ funds becomes imperative; and, further, personal bills best not be paid out of that trust account. At some place the commingling of clients’ funds with one‘s own becomes embezzlement. If personal checks are written by the attorney on an account containing clients’ funds, this is sufficient to show appropriation under the broad language of