One of the assignments of error challenges several rulings which were made over objections interposed by the defendant that permitted six witnesses to testify that they purchased stock in the defendant's office which was never delivered to them. None of these six persons was the complaining witness. The stock they purchased was of such concerns as the Anaconda Copper Mining Company and the American Steel Foundry *Page 567 Company. In other words, it was stock listed on the stock exchanges and of the kind which dealers in securities make a part of their daily transactions. None of these six witnesses was in any way associated with the complaining witness, and the transactions which they described were separate and apart from the one mentioned in the indictment.
The majority hold that no error was committed when the defendant's objections were overruled and the six witnesses gave their testimony. They say that the testimony given by these witnesses was admissible for the purposes indicated in an instruction which the trial judge gave to the jury. In that instruction the jury was told that this evidence was received "for the purpose of motive of the defendant, or a purpose or design, or for the purpose of showing the absence of mistake." The majority hold: "For the limited purposes stated in the foregoing instruction the evidence of the other transactions was admissible."
The part of the bill of exceptions which delineates what occurred when this evidence was offered says:
"During the course of the trial the State called a number of witnesses for the purpose of showing that each of them was involved in transactions with the defendant, where each of them had paid the defendant certain sums for the purchase of securities and had not received such securities or had sold or placed securities with defendant for sale and had not received the payment therefor. Defendant objected to the introduction of this line of testimony upon the ground that the same was prejudicial, wholly incompetent, irrelevant and immaterial. The court overruled the objection."
I interrupt the quotation for the purpose of stating that the words which follow, and which give the trial *Page 568 judge's reasons for his rulings, are in his own handwriting. Thus, there can be no doubt as to the reasons which prompted the reception of the challenged evidence. The handwritten words are:
"for the reason that defendant had withdrawn his objection to a similar transaction with Gus Anderson, and that other transactions were stated in defendant's opening statement."
If those reasons are not sound, the ruling can not be sustained. By glancing over the ruling again it is seen that it says nothing about motive, design or intent.
Gus Anderson, the person mentioned in the quoted words was the complaining witness. After he had testified that he purchased through the defendant 35 shares of stock issued by Marshall Field Company, he was asked whether or not he had had another transaction with the defendant. The latter objected on the ground of irrelevancy. The district attorney at that juncture stated that the defendant's counsel, in his opening statement to the jury, had "opened up the entire issue here, to the extent of saying that this particular witness bought other — had other transactions with him (defendant)." The transcribed opening statement which defendant's counsel made to the jury is before us. Concerning this other transaction which Anderson had with the defendant, the opening statement says:
*Page 569"Ankeny sold to Anderson this Marshall Field stock and he gave him a confirmation slip. In fact, he sold him two consignments of stock. He sold him stock that he should deliver in the future, he sold him what is charged in the indictment, $1,676.37 worth of Marshall Field; and he sold him about the same amount in Lockheed Aircraft; — that is not involved here, however."
After defendant's counsel had been reminded of that statement, he said: "I will withdraw my objection." Thereupon Anderson's testimony concerning the Lockheed Aircraft stock was held admissible.
The defendant's withdrawal of his objection to Anderson's testimony concerning the Lockheed transaction certainly could not justify the reception of evidence showing the purported transactions with the other six witnesses whose names were Hauger, Jenkins, Dunn, Todd, Palmer and Lyle. None of those six persons was mentioned in the opening statement. The first reason, therefore, given by the trial judge for the reception of the testimony of those six witnesses fails.
It will be observed that the second reason given by the trial judge for the reception of the testimony given by Hauger, Jenkins, Dunn, Todd, Palmer and Lyle was: "Other transactions were stated in defendant's opening statement." An opening statement is not a rule of evidence. It never justifies the reception or exclusion of evidence. No attorney can render evidence admissible or inadmissible by saying something about it in his opening statement. The statement just made is especially applicable to the trial of criminal cases. I am satisfied that the reasons upon which the trial judge based his challenged rulings can not be justified.
Notwithstanding the recitals of the bill of exceptions, the majority believe that the challenged testimony given by these six witnesses was capable of proving that the defendant had a design, an intent, a motive, and that he was not the victim of an innocent mistake. There is no rule of evidence applicable to criminal cases which is better established than the one which holds that evidence showing an accused's commission *Page 570 of other crimes is never admissible unless it serves a legitimate, material purpose. For instance, in a murder case, no one would think of offering evidence of other purported murders unless they were by chance in a material manner connected with the crime recited in the indictment. Everyone knows that evidence which blackens an accused's character and which makes it appear that he is a scoundrel whose imprisonment will be a boon to all, induces the jury to become reckless in dealing with his defense. However, proof of other transactions sometimes serves a material purpose. For instance, a cashier who daily handled large sums of money and who has been indicted for the embezzlement of one dollar, may try to explain his shortage by saying that he was the victim of an innocent mistake which someone made in entering records. In order to negative that contention and prove that his shortage was intentional, the prosecution may be permitted to prove that he was daily short one dollar in his accounts and thereby show that he was operating under a systematic scheme of embezzlement. Thus, in a case of that kind, evidence of other transactions is capable of proving design, intent, motive and absence of innocent mistake. Those are the elements which the majority say the challenged evidence established in this case; but this is not that kind of case.
In the present instance, it can not be claimed that the defendant's purported transactions with these six witnesses was the result of a criminal plan or design upon his part. Of course, he had transactions with other people; he was in the business of dealing in investment securities, and for close to two years conducted an office in an office building in Klamath Falls. The evidence indicates that he transacted a large *Page 571 volume of business. The hurtful part of the testimony given by these six witnesses was not their statements that they had purchased securities in the defendant's office, but that the securities were never delivered to them. None of the six witnesses expected to receive the securities overnight, and in at least one of the instances the defendant's office was placed in the custody of a conservator within four days after the purported transaction took place. At least four of these six witnesses had had previous transactions with the defendant and the previous transactions had been conducted to the witnesses' satisfaction. For instance, Mr. Todd testified:
"Q. You had many transactions with him?
"A. Certainly.
"Q. And this was the only transaction where you did not get your stock you bought?
"A. I did not get my stock, no.
"Q. Now, on other occasions that you bought stock from Ankeny, did you ever receive a stock certificate, or were you simply credited on the books?
"A. I received my stock certificate in every case, yes."
It is clear that the six transactions mentioned by the six witnesses whose names I have given differed in no detail whatever from numerous, possibly thousands, other transactions which the defendant had had with customers, except in one particular: in these six transactions he failed to deliver to his customers the stock they had purchased. Manifestly, the majority believe that these six instances show that the defendant had devised a felonious plot to steal his customers' money. When the evidence of these six witnesses was presented, the District Attorney made no claim that *Page 572 it would show an artifice upon the defendant's part to embezzle his customers' money, and his brief does not contend that this evidence tended to prove that the defendant had formed a criminal design to steal money entrusted to him. With the greatest respect for the majority's view, I express my opinion that, so far as this evidence indicates, his failure to have delivered the purchased stock to these six customers did not show that he had devised a scheme to embezzle money. The six transactions mentioned by these witnesses proved nothing, I believe, except that the defendant was in the business of dealing in securities, and that in these six instances he failed, for some reason which no witness mentioned, to complete the transactions. In the meantime, however, his office was open daily, and, as nearly as can be learned from the record, other transactions were moving along properly.
Although in the quietude of our chambers we can readily see that this evidence proved nothing of a criminal character, yet very likely the jury inferred that since the trial judge permitted these six witnesses to testify, over the defendant's repeated objections, this evidence proved that the defendant's conduct was, in fact, felonious. The majority, referring to this evidence, use the term, "tending to establish a common scheme, plan or system." Since the majority draw that unwarranted inference — which even the District Attorney does not vouch for — the jury must have drawn it also. Possibly the testimony given by these witnesses may show that the defendant was incapable and that, therefore, insolvency overtook him, but it does not prove that he was operating under a criminal machination; and yet its admissibility was dependent upon its *Page 573 capacity to prove artifice. Unless it proved that fact, this evidence was inadmissible. Since the State offered it, the burden of meeting that requirement rested upon the State. So that there may be no misunderstanding about the character of this evidence, I now quote everything said by one of these six witnesses upon direct examination:
"Q. Will you state your name, please.
"A. Ruth M. Dunn.
"Q. Are you acquainted with the defendant?
"A. Yes.
"Q. When did you first become acquainted with Mr. —
"A. I think about December or January of 1946.
"Q. You transacted business with him in the stock brokerage business?
"A. Yes.
"Q. During the month of August, 1946, did you purchase stock from the defendant?
Mr. Anderson: Same objection.
The Court: Same ruling.
"A. I ordered stock; I paid for it.
"Q. How much stock did you order?
"A. Seventy-five shares of National Cylinder Gas.
"Q. How much did you pay for it?
"A. Twenty-one and one-quarter.
"Q. That would be a total of how much?
"A. There was a New York tax commission on it; I paid that, too.
"Q. Do you know how much, the total amount, that you paid?
"A. Yes, I have my confirmation and cancelled check: $1,609.06.
"Q. Was that stock ever delivered to you?
"A. Never. *Page 574
"Q. Do you know whether or not his office closed up here in town?
"A. I know it closed.
"Q. When was it closed?
"A. It closed about, I think, about between the 7th and 11th of September.
"Q. Between the 7th and 11th of September?
"A. Yes, sir.
"Q. What year?
"A. 1946."
The testimony given by the other five witnesses was no more favorable to the State than Mrs. Dunn's testimony. In fact, the testimony of at least one of them was less favorable, as I shall now show. This witness was W.E. Palmer. He testified that in September, 1946, he purchased through the defendant 150 shares of listed stocks and paid for them $5,885.61. He also testified that none of the stock was delivered to him. Upon cross-examination the following developed:
"Q. Is it not a fact that four days after you bought this stock you had a conservator appointed to take charge of Mr. Ankeny's assets?
"A. Well, through —
"Q. Is that not right?
"A. Yes."
Further questioning developed the following:
"Q. Mr. Ankeny was not in Klamath Falls?
"A. No, sir. I never dealt with Mr. Ankeny; I dealt with one of the clerks or bookkeeper.
"Q. Who did you deal with?
"A. The bookkeeper, clerk; office girl, in other words.
"Q. Did you ever buy any stock from Mr. Ankeny?
"A. I never did personally.
"Q. Who was the bookkeeper?
"A. I did not get her name." *Page 575
Shortly the following examination took place:
"Q. The fact is that you never saw Ankeny, you never saw him at the time you turned this money over to him, to the clerk there, did you?
"A. I did not."
At the time of that purported transaction the defendant was in San Francisco endeavoring to secure capital for his business. So far as the record indicates, he and this witness may have been wholly unacquainted. No effort was made to prove the identity of the person whom Mr. Palmer identified as "the bookkeeper, clerk; office girl, in other words." Unless those loose terms show that that nebulous person was an actual employe of the defendant, the latter had had no connection whatever with this transaction. The majority seemingly sustain the admissibility of that evidence by resort to the following words which defendant's counsel employed in his opening statement: "The fact is Lewis Ankeny operated the place and was responsible for whatever transactions occurred." When those words were spoken defendant's counsel had no reason to believe that the testimony of these six witnesses would be held admissible. I submit that it was inadmissible. At any rate, the majority evidently believe that the act of "the bookkeeper, clerk; office girl", in accepting Palmer's money, is evidence that the defendant was operating under a criminal plan for stealing his customer's funds. I can not concur in that point of view.
Without further review of the testimony given by these witnesses, I express my conviction that it wholly failed to show that the defendant operated his business under a plan or scheme to embezzle his customers' funds.
Possibly the majority, in holding that the evidence *Page 576 about these six transactions showed the nature of the defendant's intentions, have in mind the burden which rested upon the State to prove that the defendant intentionally failed to account for the money the Andersons had bailed to him. Generally, no conduct is criminal unless it was intentionally pursued; in other words, action taken by a person while he was unconscious or under a hypnotic spell is not deemed intentional. The indictment charged that the defendant was the bailee of $1,676.37 lawful money belonging to Gus A. and Veva Anderson, and that he, as bailee, "unlawfully, wilfully and feloniously" did "fail, neglect and refuse to deliver, keep and account for said property according to the nature of his trust." Section 23-524, O.C.L.A., says:
"If any bailee, * * * shall fail, neglect, or refuse to deliver, keep, or account for, according to the nature of his trust, any money * * * such bailee, upon conviction thereof, shall be deemed guilty of larceny * * *."
The State claimed that the Andersons delivered $1,676.37 to the defendant as bailee under an agreement upon his part to purchase for them 35 shares of Marshall Field stock. The defendant admitted that he received from the Andersons $1,676.37, but denied that it came to him as bailee. He swore that it was paid to him for 35 shares of Marshall Field stock which he, as vendor, sold to them. The nature of the transaction was the sole issue. It will be observed that neither the issue in this case nor the provisions of § 23-524, O.C.L.A., concern themselves with any form of intent, except the common one which is an element of virtually every crime; that is, that the act was performed conciously and not unwittingly. In this case, it was wholly unnecessary, in order to prove intent, to show what *Page 577 the defendant had done in other transactions. The truth of the matter is, the action he took in other transactions with other people's money had no tendency to show his intention in his dealings with the Andersons.
Without resort to further analysis, I express my belief that error was committed when this large mass of challenged testimony was received. This evidence, of necessity, was prejudicial. Had it not been received, the chances are that the defendant would not have been convicted.
I wish to state another reason for my dissent. I am satisfied that the State failed to prove the charge averred in the indictment. The complaining witness, Gus Anderson, gave the defendant his (Anderson's) check in the amount of $1,676.37 to pay for 35 shares of Marshall Field stock. The defendant at that time had at least four bank accounts in Klamath Falls, one of which was with the Klamath Falls Branch of the First National Bank of Portland. It was entitled thus: "Lewis Ankeny Company Trustee Account." The defendant deposited Mr. Anderson's check in that account. Approximately a month and a half later the defendant was adjudged a bankrupt and a trustee took charge of his estate, which was worth $10,000.00. There is no evidence that the defendant's trustee account contained less than $1,676.37 when the Trustee in Bankruptcy assumed charge. The State attempted to prove the amount held by the defendant's bank accounts when he was adjudged a bankrupt, but the trial judge ruled that the documentary evidence which it offered was inadmissible. The State, seemingly, had no other evidence concerning the condition of the defendant's bank accounts, and abandoned its efforts after it had met with the adverse ruling just mentioned. As a result *Page 578 of that situation, the jury had nothing before it, when it retired to deliberate, from which it could determine whether or not the defendant's trustee account possessed $1,676.37 when the Trustee in Bankruptcy took charge. In short, the State presented no evidence that the defendant ever withdrew the Andersons' $1,676.37 from the trustee account or converted it to his own use. The burden of proof rested upon the State, and, in the absence of evidence showing that the defendant withdrew from the trustee account amounts which reduced the balance below $1,676.37, a verdict of guilty was unwarranted.
Anderson conceded that he never demanded of the defendant delivery to him of the Marshall Field stock. Mrs. Anderson did not testify. There is no contention that either of them ever requested of the defendant that he return to them the sum of $1,676.37. Unless he applied the Andersons' money to some unauthorized purpose — and the evidence does not indicate that he did — his guilt was not established. So far as we know, the Andersons' money was still in the trustee account when the defendant was adjudged a bankrupt. The foregoing being the state of the record, the judgment of guilty can not be sustained.
The defendant appears to be a young man. Upon his discharge from the Marines at the close of the late war, he went to Klamath Falls as a stranger and established himself in the business of dealing in securities. I am prepared to believe that he was not adapted to the vocation which he chose, but the judgment of guilty should be affirmed only in the event that he violated § 23-524, O.C.L.A. I do not believe that failure to account for the Andersons' money has been shown. Further, I believe that prejudicial inadmissible evidence was received. I, therefore, dissent. *Page 579