State v. Cline

No. 1 3 2 2 6

I N THE SUPREME COURT OF THE STATE OF M N A A
OTN

1976

THE STATE OF MONTANA,

P l a i n t i f f and Respondent,

MERREL CLINE, L. R. BRETZ and
SHIRLEY CLINE,

Defendants and A p p e l l a n t s .

Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
Honorable W. W. L e s s l e y , Judge p r e s i d i n g .

Counsel of Record:

For A p p e l l a n t s :

Moses, Kampfe, T o l l i v e r and W r i g h t , B i l l i n g s , Montana
C h a r l e s Moses a r g u e d , B i l l i n g s , Montana
W. W i l l i a m L e a p h a r t a r g u e d , Helena, Montana

For Respondent:

Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
Montana
John F. North a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
Helena, Montana

Submitted: September 9 , 1976

Decided :
>c 1 1 &. 364% 1 4 1975
ailed:
Mr. J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of t h e C o u r t .

Defendants a p p e a l from t h e i r c o n v i c t i o n s of t h e crime

of o b t a i n i n g money by f a l s e p r e t e n s e s f o l l o w i n g j u r y t r i a l i n

t h e d i s t r i c t c o u r t of L e w i s and C l a r k County b e f o r e t h e Hon. W.

W. L e s s l e y , d i s t r i c t judge p r e s i d i n g .

The p r o s e c u t i o n a r o s e o u t o f a c l a i m f o r Workmen's

Compensation b e n e f i t s i n c o n n e c t i o n w i t h t h e d e a t h o f Wesley

Wampole. Defendant B r e t z , a n a t t o r n e y , p r e p a r e d t h e c l a i m f o r

Wampole's widow, Nona, i n which it was r e p r e s e n t e d t h a t Wampole

d i e d a s a r e s u l t of a s e v e r e s t r a i n s u f f e r e d on J a n u a r y 8 , 1973,

w h i l e employed by C o u r t e s y Mobile Homes. C o u r t e s y was a c o r p o r -

a t i o n o f which d e f e n d a n t S h i r l e y C l i n e w a s p r e s i d e n t and d e f e n -

d a n t Merrel C l i n e , h e r husband, was manager. M r s . Wampole s i g n e d

t h e c l a i m f o r compensation b e n e f i t s b u t l a t e r and a t t h e t r i a l

s h e s t a t e d t h a t Wesley Wampole had n o t worked f o r C o u r t e s y on

t h a t day and t h a t d e f e n d a n t B r e t z had made up t h e f a l s e c l a i m t o

g e t money from t h e S t a t e Workmen's Compensation I n s u r a n c e Fund.

Defendant M e r r e l C l i n e s i g n e d t h e Employer's F i r s t Report

of I n j u r y s t a t i n g t h a t Wampole had worked f o r C o u r t e s y on Janu-

a r y 8 , and c a u s e d it t o be f i l e d w i t h t h e Workmen's Compensation

D i v i s i o n i n Helena.

Mr. and M r s . S t u b b s who r a n t h e Conrad, Montana o f f i c e

o f C o u r t e s y , gave a s t a t e m e n t t o t h e Workmen's Compensation D i v i -

s i o n t h a t Wesley Wampole was working f o r C o u r t e s y i n Conrad o n

J a n u a r y 8. A t t h e t r i a l employees of C o u r t e s y t e s t i f i e d t h a t

Wesley Wampole had n e v e r worked f o r C o u r t e s y ; t h a t d e f e n d a n t

Merrel C l i n e t o l d them t o l i e ; t h a t d e f e n d a n t S h i r l e y C l i n e

i n s t r u c t e d t h a t Wesley Wampole's name be e n t e r e d on t h e p a y r o l l

o f C o u r t e s y b u t t h a t h e w a s dead and no check would be i s s u e d .

L a t e r t h e Workmen's Compensation D i v i s i o n e n t e r e d i n t o

a "nonacceptance" s e t t l e m e n t i n t h e amount of $ 5 , 4 0 0 based on
i n f o r m a t i o n c o n t a i n e d i n t h e c l a i m f i l e of Wesley Wampole.
The s t a t e s e t t l e m e n t w a r r a n t was m a i l e d t o d e f e n d a n t B r e t z '

law o f f i c e i n G r e a t F a l l s , Montana i n F e b r u a r y , 1974. Mrs.

Wampole l a t e r r e c e i v e d $2,700 by p e r s o n a l c h e c k from d e f e n d a n t

B r e t z p u r s u a n t t o t h e i r f e e arrangement w i t h o u t e v e r s e e i n g

t h e s t a t e settlement warrant.
The a t t o r n e y g e n e r a l ' s o f f i c e handled t h e i n v e s t i g a t i o n

and p r o s e c u t i o n of t h i s c a s e under a g r a n t o f a u t h o r i t y from

t h e state l e g i s l a t u r e . S e c t i o n 79-2315, R.C.M. 1947.

On October 31, 1974, s p e c i a l a s s i s t a n t a t t o r n e y s g e n e r a l

Richard D z i v i and A 1 W e l l s f i l e d a motion f o r l e a v e t o f i l e a n

I n f o r m a t i o n d i r e c t i n t h e d i s t r i c t c o u r t , L e w i s and C l a r k County.

T h i s motion was g r a n t e d and a n I n f o r m a t i o n w a s f i l e d c h a r g i n g

d e f e n d a n t s B r e t z and M e r r e l C l i n e i n n i n e c o u n t s w i t h t h e c r i m e s

of g r a n d l a r c e n y , o b t a i n i n g money and p r o p e r t y by f a l s e p r e t e n s e s ,
p r e p a r i n g f a l s e e v i d e n c e , o f f e r i n g f a l s e e v i d e n c e , and p r e s e n t -

i n g f a l s e proof upon a p o l i c y o f i n s u r a n c e . I n t h e same Informa-
t i o n d e f e n d a n t S h i r l e y C l i n e was c h a r g e d w i t h one c o u n t of p r e -

s e n t i n g f a l s e proof upon a p o l i c y of i n s u r a n c e .

S u b s e q u e n t l y t h e c a s e came on f o r t r i a l on March 1 0 , 1975;

t h e j u r y w a s empaneled and sworn; and t h e t r i a l was c o n t i n u e d .

On March 2 1 f o u r c o u n t s were d i s m i s s e d . Both t h e s t a t e and t h e
defendants applied t o t h i s Court f o r a w r i t of supervisory c o n t r o l ,

which w e d e n i e d .

On A p r i l 4 t h e s t a t e moved t o d i s m i s s t h e I n f o r m a t i o n f o r

t h e e x p r e s s and e x c l u s i v e p u r p o s e of f i l i n g a new I n f o r m a t i o n .
The s t a t e ' s motion w a s g r a n t e d and a new I n f o r m a t i o n w a s f i l e d
c h a r g i n g a l l t h r e e d e f e n d a n t s w i t h two crimes: Count I c h a r g i n g
t h e c r i m e of g r a n d l a r c e n y ; and Count I1 c h a r g i n g t h e c r i m e o f
o b t a i n i n g money and p r o p e r t y by f a l s e p r e t e n s e s .

S u b s e q u e n t l y t h e case came on f o r t r i a l , a new j u r y w a s
empaneled and sworn, and the trial proceeded. At the conclusion
of all the evidence Count I charging grand larceny was dismissed
by the court. All three defendants were convicted by jury ver-
dict of Count 11, obtaining money by false pretenses. All
three defendants now appeal from the judgment of conviction.
Defendants have presented many specifications of error
which we group in the following discussion. Such further facts
as appear necessary to an understanding of each specification
of error will be set forth hereinafter.
The first specification of error is that the evidence
is insufficient to support the conviction of defendant Shirley
Cline. She argues that under the instructions to the jury,
proof that she received some of the settlement proceeds was
necessary to convict and there was no evidence that she did.
The state offered its proposed instruction # 4 setting
forth the elements of the crime of obtaining money by false
pretenses. This instruction was given to the jury as Instruction
No. 18:
"Every person who knowingly and designedly, by
false or fraudulent representation or pretenses,
defrauds another person of money or property is
guilty of obtaining money or property by false
pretenses.
"The elements of obtaining money or property by
false pretenses are:
"1. That there was a making by the accused
to the Workmen's Compensation Division of one or
more representations of past events or existing
facts; and
"2. That the Workmen's Compensation Division
believed such representations to be true; and
relying thereon, the Workmen's Compensation Div-
ision parted with its money or property which
accused received.
"3. That such representations were false;
and
"4. Were made knowingly and designedly with
the intent to defraud the Workmen's Compensation
 Division.

" I f , a f t e r c o n s i d e r i n g a l l o f t h e e v i d e n c e , you
f i n d t h a t t h e p r o s e c u t i o n h a s e s t a b l i s h e d beyond
a reasonable doubt t h a t t h e defendants acted i n
s u c h a manner s o a s t o s a t i s f y a l l o f t h e above
e l e m e n t s a t o r a b o u t t h e d a t e and p l a c e s t a t e d i n
t h e i n f o r m a t i o n , you s h o u l d f i n d t h e d e f e n d a n t s
g u i l t y of o b t a i n i n g money o r p r o p e r t y by f a l s e
p r e t e n s e s ; i f you do n o t s o f i n d , you s h o u l d
f i n d t h e defendants not g u i l t y . " (Emphasis
supplied.)

T h i s i n s t r u c t i o n r e q u i r e s t h e s t a t e t o p r o v e beyond a

r e a s o n a b l e d o u b t t h a t S h i r l e y C l i n e r e c e i v e d p a r t of t h e s e t t l e -

ment p r o c e e d s . Although t h e s t a t e now a r g u e s on a p p e a l proof

t h a t defendant S h i r l e y Cline received a p a r t of t h e settlement

proceeds h e r s e l f i s unnecessary t o c o n v i c t , c i t i n g S t a t e v.

L a g e r q u i s t , 152 Mont. 21, 445 P.2d 910, t h e above i n s t r u c t i o n

r e q u i r i n g such p r o o f became t h e "law of t h e c a s e " and t h e j u r y

was bound t h e r e b y . DeLeon v . McNinch, 146 Mont. 287, 407 P.2d

45; McDonald v . P e t e r s , 128 Mont. 241, 272 P.2d 7 3 0 ; Wood v .

J a e g e r , 128 Mont. 235, 272 P.2d 725; Metcalf v . B a r n a r d - C u r t i s s

Co., 1 2 0 Mont. 50, 180 P.2d 263; Bowman v . ~ e w i s , 110 Mont. 435,

1 0 2 P.2d 1; Ingman v . H e w i t t , 107 Mont. 267, 86 P.2d 653.

T h e r e i s a t o t a l a b s e n c e of proof t h a t d e f e n d a n t S h i r l e y

C l i n e r e c e i v e d any p a r t of t h e s e t t l e m e n t p r o c e e d s . On t h e con-

t r a r y a l l t h e evidence i n t h e c a s e i n d i c a t e s she d i d not. The

u n d i s p u t e d e v i d e n c e shows t h a t t h e $5,400 s t a t e s e t t l e m e n t w a r r a n t

went t o t h e law o f f i c e of d e f e n d a n t B r e t z and t h a t M r s . Wampole

w a s p a i d $2,700. Defendant S h i r l e y C l i n e t e s t i f i e d t h a t n e i t h e r

s h e n o r h e r husband a t any t i m e r e c e i v e d any money from e i t h e r

Mrs. Wampole o r d e f e n d a n t B r e t z a s a r e s u l t of t h e d e a t h c l a i m

f o r Wesley Wampole. Defendant B r e t z t e s t i f i e d t h a t he a t no t i m e

s h a r e d any l e g a l f e e s w i t h d e f e n d a n t s S h i r l e y c l i n e o r Merrel

Cline. Not one w i t n e s s f o r e i t h e r t h e s t a t e o r t h e d e f e n d a n t s

t e s t i f i e d t h a t d e f e n d a n t S h i r l e y C l i n e o b t a i n e d any o f t h e s e t t l e -

ment p r o c e e d s .
 The c o n v i c t i o n of d e f e n d a n t S h i r l e y C l i n e of t h e c r i m e

of o b t a i n i n g money by f a l s e p r e t e n s e s must be r e v e r s e d f o r a

t o t a l f a i l u r e of proof of o n e of t h e e l e m e n t s of t h e c r i m e a s

d e f i n e d by I n s t r u c t i o n No. 1 8 . This r e n d e r s unnecessary d i s -

c u s s i o n of o t h e r s p e c i f i c a t i o n s o f e r r o r c o n c e r n i n g d e f e n d a n t

Shirley Cline.

The same s i t u a t i o n e x i s t s c o n c e r n i n g t h e c o n v i c t i o n o f

d e f e n d a n t M e r r e l C l i n e of t h e c r i m e o f o b t a i n i n g money by f a l s e

pretenses. A s p o i n t e d o u t i n t h e b r i e f of d e f e n d a n t s C l i n e ,

" R e g a r d l e s s of what o t h e r a c t i v i t y M e r r e l C l i n e may o r may n o t

have engaged i n , h e c a n n o t s t a n d c o n v i c t e d of o b t a i n i n g money

by f a l s e p r e t e n s e s u n l e s s t h e S t a t e proved beyond a r e a s o n a b l e

d o u b t t h a t h e r e c e i v e d money a s a r e s u l t o f making f a l s e r e p r e -

sentations". T h i s was r e q u i r e d by I n s t r u c t i o n No. 1 8 .

The o n l y r e f e r e n c e t o d e f e n d a n t M e r r e l C l i n e ' s r e c e i v i n g

any money w a s t h e t e s t i m o n y of M r s . Roane, a n employee o f C o u r t e s y ,

t h a t s h e w a s g i v e n $2,000 t o d e p o s i t s h o r t l y a f t e r Merrel C l i n e

r e t u r n e d from v i s i t i n g d e f e n d a n t B r e t z i n G r e a t F a l l s . The

t e s t i m o n y shows t h a t M r s . Roane q u i t working f o r C o u r t e s y i n 1973

and t h a t t h e $2,000 d e p o s i t was made i n 1972. T h i s was a l m o s t

two y e a r s b e f o r e t h e $5,400 s t a t e s e t t l e m e n t w a r r a n t was i s s u e d

i n F e b r u a r y , 1974. There i s a t o t a l a b s e n c e of e v i d e n c e t h a t de-

f e n d a n t Merrel C l i n e r e c e i v e d any o f t h e s e t t l e m e n t p r o c e e d s a s

r e q u i r e d by I n s t r u c t i o n No. 1 8 .

A c c o r d i n g l y , t h e c o n v i c t i o n of d e f e n d a n t M e r r e l C l i n e

must be r e v e r s e d f o r a t o t a l f a i l u r e o f proof of one of t h e ele-

ments of t h e c r i m e o f o b t a i n i n g money by f a l s e p r e t e n s e s a s re-

q u i r e d by I n s t r u c t i o n No. 1 8 . This likewise renders unnecessary

f u r t h e r d i s c u s s i o n of o t h e r s p e c i f i c a t i o n s o f e r r o r c o n c e r n i n g

d e f e n d a n t Merrel C l i n e .

W e now d i r e c t o u r a t t e n t i o n t o t h e c o n v i c t i o n o f d e f e n d a n t
Bretz of the crime of obtaining money by false pretenses. At
the outset, he contends that the attorney general and his
assistants had no authority to prosecute this case and there-
fore the conviction must be reversed.
Initially defendant Bretz argues that the attorney
general's sole authority to prosecute is based on the legis-
lative authorization contained in section 79-2315, R.C.M. 1947;
that such authorization does not cover this case; and that any
authorization granted the attorney general cannot be delegated
by him to nonresident assistants not authorized to practice law
in Montana.
Section 79-2315, R.C.M. 1947, provides:
"Attorney general shall prosecute. The attorney
general shall conduct on behalf of the state, all
prosecutions for public offenses disclosed by an
audit of a state agency performed by the legis-
lative auditor. If the attorney general shall
decline such prosecution or shall fail to commence
action on a public offense within a reasonable
time the county attorney of the appropriate county
shall conduct on behalf of the state such prosecution."
Defendant Bretz points out that the legislative auditor
never investigated the contents of the Wesley Wampole file;
that the charge in the instant case originated from a telephone
call the attorney general's office received from a person who
claimed he had received a threat from Merrel Cline for having
fired his attorney on a workmen's compensation claim; and that
the attorney general had no authority to prosecute an offense
not disclosed by an audit performed by the legislative auditor.
We decline to construe or apply so narrowly the authority
granted the attorney general by section 79-2315. The audit by
the legislative auditor disclosed numerous apparent violations
and public offenses in connection with workmen's compensation
settlements from the state fund. The area of apparent criminal
activities and public offenses was exposed by the legislative
 audit of the Workmen's Compensation Division. Whether disclosure
of the individual offense in question came about independent
of, coincidental to, or as a result of information received by
the attorney general in his ongoing investigations and prose-
cutions of criminal offenses exposed by the legislative audit
in connection with workmen's compensation settlements from the
state fund is immaterial. The statutory grant of authority
covers "public offenses disclosed by an audit of a state agency
by the legislative auditor" and does not require individual
identification of a particular offense or a particular offender
by the legislative auditor as a precondition to the attorney
general's authority in such a manner as to defeat the obvious
purpose of the legislation.
Defendant Bretz additionally contends that section 79-2315
cannot be applied retroactively to authorize the attorney general
to prosecute crimes committed prior to such statutory grant of
authority. Defendant Bretz refers us to section 12-201, R.C.M.
1947, which provides:
"No law contained in any of the codes or other
statutes of Montana is retroactive unless ex-
pressly so declared."
This Court has previously held that procedural laws may
be given retroactive effect, notwithstanding section 12-201.
Dunham v. Southside National Bank of Missoula, Mont . I

548 P.2d 1383, 33 St.Rep. 372, and cases cited therein. Whether
the attorney general or the county attorney prosecutes is simply
a procedural matter, so section 12-201 is not applicable. The
obvious purpose and intent of section 79-2315 was to give the
attorney general authority to prosecute public offenses disclosed
by the legislative audit of the Workmen's Compensation Division.
Defendant Bretz next argues the attorney general unlaw-
fully delegated responsibility for the prosecution of this case
to special prosecutors not licensed to practice law in Montana.
This refers to the part that nonresident prosecutors employed
by the attorney general played in the prosecution of this case.
This Court has the exclusive power to determine who may
practice law in Montana. Article VII, Section 2, Montana Con-
stitution; Section 93-2005, R.C.M. 1947; In re Senate Bill No.
630 Relating to Bar Examination, 164 Mont. 366, 523 P.2d 484.
This Court by order of February 24, 1975, specifically admitted
Alfred A. Wells to the practice of law in Montana "to act as
Special Assistant Attorney General in all matters concerning the
investigation and prosecution of criminal offenses disclosed by
the legislative auditor's audit of the Workmen's Compensation
Division * * *.I1

The next specifications of error raised by defendant
Bretz relate to alleged deficiencies in the Information charging
the crime. He contends the State of Montana and its agencies
cannot be the victims of grand larceny or obtaining money by
false pretenses; that the crimes charged were violations of a
repealed statute under the old criminal code; that charging the
two crimes constitutes duplicitous pleading and additionally re-
quired an unlawful joinder of inconsistent and repugnant defenses;
and the Information was fatally defective in failing to charge
the place where the crime was committed.
We hold that the crimes of grand larceny and obtaining
money by false pretenses can be committed against the state of
Montana and its agencies under the old criminal code and that
those crimes do not require that they be committed against a
natural person or a corporation. The gravamen of the crime of
grand larceny under the old criminal code is the intent to deprive
or defraud the true owner of his, her, or its property. Section
94-2701, R.C.M. 1947. The victim, by statute, may be a body
politic. S e c t i o n 94-105, R.C.M. 1947, p r o v i d e d :

"What i n t e n t t o d e f r a u d i s s u f f i c i e n t . Whenever,
by any of t h e p r o v i s i o n s of t h i s c o d e , an i n t e n t
t o defraud i s required i n order t o c o n s t i t u t e
any o f f e n s e , it i s s u f f i c i e n t i f a n i n t e n t a p p e a r s
t o d e f r a u d any p e r s o n , a s s o c i a t i o n , o r body p o l i t i c
o r corporate, whatever," (Emphasis added.)

The same i s t r u e of t h e c r i m e of o b t a i n i n g money by

f a l s e pretenses. S e c t i o n 94-1805 d e f i n e d t h i s c r i m e a s a p p l y i n g

t o "Every p e r s o n who knowingly and d e s i g n e d l y , by f a l s e o r f r a u d -

u l e n t r e p r e s e n t a t i o n o r p r e t e n s e s , d e f r a u d s any o t h e r p e r s o n o f

money o r p r o p e r t y " and d i d n o t r e q u i r e t h a t t h e p e r s o n d e f r a u d e d

be t h e owner o f t h e p r o p e r t y . S t a t e v . Hanks, 116 Mont. 399, 153

P.2d 220. Here, t h e I n f o r m a t i o n c h a r g e s " t h a t t h e IAB/WCD and

a u t h o r i z e d r e p r e s e n t a t i v e s t h e r e o f b e l i e v e d and r e l i e d upon s u c h

r e p r e s e n t a t i o n s and p r e t e n s e s a s t r u e " and t h u s p a r t e d w i t h t h e

s e t t l e m e n t money. This i s s u f f i c i e n t t o charge t h e crime of

o b t a i n i n g money by f a l s e p r e t e n s e s .

Defendant B r e t z f u r t h e r a r g u e s t h a t t h e c r i m e s c h a r g e d

w e r e v i o l a t i o n s of a r e p e a l e d s t a t u t e . He c o n t e n d s t h a t e v e r y

n e c e s s a r y e l e m e n t of t h e crimes c h a r g e d c o u l d o n l y have been

committed a f t e r J a n u a r y 1, 1974, a f t e r t h e s t a t u t e s under which

he had been c h a r g e d had been r e p e a l e d . H e p o i n t s o u t t h a t it d o e s

n o t make any d i f f e r e n c e when t h e f r a u d was p r e p a r e d , b u t o n l y

when t h e f r a u d was a c t e d upon i n 1974.

This contention i s f a l l a c i o u s . I t assumes t h a t a l l e l e m e n t s

of t h e c r i m e s charged must be completed b e f o r e J a n u a r y 1, 1974.

T h i s i s d i r e c t l y c o n t r a r y t o t h e c o n t r o l l i n g s t a t u t e , C h a p t e r 513,

S e c t i o n 33, 1973 S e s s i o n Laws:

"The Montana C r i m i n a l Code and a l l o t h e r p r o v i s i o n s
of t h i s a c t a r e e f f @ c t i v e J a n u a r y 1, 1974, and s h a l l
a p p l y t o a l l o f f e n s e s a l l e g e d t o have been committed
on o r a f t e r t h a t d a t e . The Montana C r i m i n a l Code
and a l l o t h e r p r o v i s i o n s of t h i s a c t d o n o t a p p l y
t o o f f e n s e s committed p r i o r t o i t s e f f e c t i v e d a t e
and p r o s e c u t i o n s f o r such o f f e n s e s s h a l l be governed
by t h e p r i o r law, which i s c o n t i n u e d i n e f f e c t f o r
t h a t purpose, as i f t h i s a c t w e r e n o t i n f o r c e .
For t h e p u r p o s e of t h i s s e c t i o n , a n o f f e n s e
was committed p r i o r t o t h e e f f e c t i v e d a t e o f t h i s a c t
 if any of the elements of the offense
occurred ~ r i o rthereto." (Em~hasis
added.)
Here the fraud, a necessary element of the crimes charged, was
committed in 1973 and the crimes were properly charged under the
old criminal code.
Defendant Bretz argues that charging the two crimes con-
stitutes duplicitous pleading. He argues that the prohibition
against duplicity is designed to protect his right under the
Sixth Amendment to the United States Constitution to notice of
the nature and cause of the accusation against him so that he
might prepare a defense, and to guard against the possibility that
confusion as to the basis of the verdict may subject him to
double jeopardy in the event of a subsequent prosecution, citing
United States v. Tanner, 471 F.2d 128, cert.denied 409 U.S. 949,
93 S.Ct. 269, 34 L ed 2d 220.
Here, the two offenses charged, grand larceny and obtain-
ing money by false pretenses, are but different legal theories
covering the same transaction. They are charged in the alterna-
tive as provided by statute, section 95-1504(a). The state did
not seek conviction on both counts, but was required to elect and
did elect to stand on Count I1 charging obtaining money by false
pretenses, at the conclusion of all the evidence. The defendant
knew what he was charged with doing and could prepare his defense.
This Court held in State ex rel. McKenzie v. District Court, 165
Mont. 54, 63, 525 P.2d 1211, that "The purpose of an information
is to inform the defendant of what he is charged, nothing more,
nothing less." There can be no double jeopardy under the alterna-
tive pleading in this case.
Bretz further claims prejudice by requiring joinder of
inconsistent and repugnant defenses. This argument loses its
vitality where, as here, the alternative counts are simply dif-
ferent legal theories covering the same transaction. We have
previously upheld joinder of the crimes of grand larceny and
receipt of stolen property, where pleaded alternatively and where

the State sought conviction upon only one of the counts. State
v. Tritz, 164 Mont. 344, 522 P.2d 603. Defendant Bretz' argument
on this point is without merit.

Finally Bretz charges the Information is fatally defective
in charging that the place where the crime was committed was in

Lewis and Clark County and then failing to prove that Bretz com-
mitted a single act in that county.

One of the elements of the crimes charged is fraud in

obtaining the state's settlement money. This occurred in Lewis
and Clark County where the settlement money was disbursed. As

this final element of the crimes occurred in Lewis and Clark
County, it was proper to charge the crimes as committed there.
There was no variance between pleading and proof.

Defendant Bretz next contends that the district court
committed prejudicial error in refusing to hold a hearing on his

motion for change of venue. He contends that Cascade County was
the proper place of trial.
Either Lewis and Clark County or Cascade County is a proper

place of trial because some of the elements constituting the offenses
occurred in each county. Such being the case, the action must
remain in the county where the charges were originally filed, here
Lewis and Clark County. State v. Bretz, 166 Mont. 444, 534 P.2d

496. Bretz could not prevail on his motion for change of venue,

so the district court committed no error in summarily denying it
without holding a hearing.
One of defendant Bretz' principal contentions is that "the
massive long-time publicity on this defendant and relating to this
case has been so prejudicial'' that he could not receive a fair

trial. In the event the case was not dismissed on this basis, he
moved for a continuance "until such time as the effects of such
massive long-time publicity against him have diminished".
The principal objection of defendant Bretz concerned a
press conference called by the attorney general for all news
media on September 18, 1974, in Helena, Lewis and Clark County,
Montana. At this news conference the attorney general submitted
a three page document entitled "Rejection" stating in substance
that more than 35 counts of criminal violations of section 93-
2108, R.C.M. 1947 (solicitation of clients by an attorney through
employment of "runners") involving defendants Bretz and Merrel
Cline during 1970-1972 could not be prosecuted because of the
one year statute of limitations on misdemeanors contained in sec-
tion 94-5703, R.C.M. 1947. The document further stated that
Special Assistant Attorney General Donald N. Eastman had "over-
whelming evidence and documentation which clearly and unimpeachably
demonstrates" that Merrel Cline and others were employed as runners
for Attorney L. R. Bretz of Great Falls, Montana, during the years
1970-1972. It further stated that the "dimensions of this illegal
and patently unethical course of conduct, combination, and collu-
sion are repugnant."
The "Rejection" further stated that reports of interviews
of workmen's compensation claimants "flatly demonstrate" that the
"runners" were soliciting workmen's compensation business for an
attorney and were being paid for it; that "direct witness evidence"
from claimants that came to be retained by said attorney as a
result of a direct solicitation by a runner appears in at least
38 claims, listed by file number. It then stated that employing
runners to solicit law clients by an attorney is a violation of
Montana statutory standards of conduct for lawyers, an unethical
practice for attorneys, and is grounds for disbarment from the
practice of law, setting forth the applicable statutes. This
statement thereafter appeared in the "Rejection":
"Therefore, it can be plainly concluded that the
above-named runners, Attorney Bretz and others
committed criminal offenses during 1970, 1971,
and 1972 by soliciting claimants in Workmen's
Compensation cases to hire Attorney Bretz. The
above 37 (sic) listed case numbers are but a
sampling of the occasions when this occurred."
The document then went on to cite the statute of limi-
tations, observing that "Running, capping, solicitation, ambulance-
chasing for attorneys---however it is named---is a universal prob-
lem. It is the scourge of the responsible legal profession, and
perilous to society and those clients solicited." It then indi-
cated that in many states these practices can be prosecuted as

felony conspiracies with extended limitation periods; that cur-
rently ambulance-chasing rings are under indictment and being prose-
cuted for conspiracy in many parts of the United States; but
unfortunately Montana conspiracy statutes are inadequate to deal
with this aggravated problem.
The document continued with the observation that although
"This matter cannot now be handled at the criminal plateau because
of the statute of limitations." the attorney general's special
investigators "have been instructed to conduct an even more
sophisticated probe to look for evidence of felony fraud by these
runners. "
The document concluded with the statement "The matter will
be referred to the Commission on Practice of the Montana Supreme
Court for their independent evaluation of possible administrative
violations."
Bretz also complains of inappropriate comments by the
attorney general at this news conference; a front page story in
the Billings Gazette concerning a civil action where he and his
wife were defendants in a $54,000 damage suit "charging fraud in
the sale of a dying horse to a minor" with a concluding paragraph
stating "Bretz is also charged by the state with a total of
60 felony counts in two counties on charges relating to the
Workmen's Compensation Division affair."; and numerous unidentified
press conferences by the state concerning the three defendants

in this case and the resulting coverage in the press, radio and
television.

At the outset we observe that the attorney general's news
conference and "Rejection" was held on September 14, 1974, about
9 months prior to trial of this case which commenced on June 16,

1975. Bretz has not attempted to prove actual prejudice or any

specific difficulty in choosing a jury. There is nothing in the
record before us indicating that any member of the jury or pros-

pective juror had knowledge of the attorney general's "Rejection",
comments, or the ensuing publicity. Instead Bretz relies on the
contention that there was such a high probability that prejudice
would result that the whole prosecution in this case was inherently
lacking in "due process".

Defendant Bretz cites a number of federal cases wherein
charges were dismissed because of inherent, as distinguished from
actual or demonstrated, prejudice. They all involve very extreme
situations. We do not pretend to condone the publicity actions of
the prosecution, but the facts here fall short of the type of

situations involved in the federal cases. We will briefly dis-
tinguish them on the facts.
The case of Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628,
14 L ed 2d 543, involved the nationally publicized trial of Billie
Sol Estes. Pretrial hearings in that case and portions of the
trial were carried live over radio and television. Eleven volumes
of press clippings were on file with the clerk of court. Pictures
of witnesses, jury members, counsel, and defendant were broadcast
on the nightly television news. The ever present cameras could
n o t be ignored. The C o u r t s e t s f o r t h t h e e x t r a - j u d i c i a l i n f l u e n c e s

t h a t c o u l d r e a d i l y a f f e c t t h e j u r y and t h e judge.

I n Rideau v . L o u i s i a n a , 373 U.S. 723, 83 S.Ct. 1417, 1 0

L ed 2d 663, a c o n f e s s i o n o f d e f e n d a n t t o bank r o b b e r y , k i d n a p p i n g ,

and murder was r e c o r d e d l i v e on f i l m w i t h sound and was t e l e c a s t

showing d e f e n d a n t i n j a i l w i t h two s t a t e t r o o p e r s and t h e s h e r i f f

asking leading questions. To t h e v i e w i n g p u b l i c t h i s would a p p e a r

t o be h i s t r i a l o f g u i l t .

The c a s e o f T u r n e r v . L o u i s i a n a , 379 U.S. 466, 8 5 S.Ct.

546, 1 3 L ed 2d 424, d i d n o t i n v o l v e p u b l i c i t y b u t r a t h e r was

r e v e r s e d b e c a u s e two d e p u t i e s who had i n v e s t i g a t e d t h e c r i m e and

w e r e p r i n c i p a l p r o s e c u t i o n w i t n e s s e s w e r e a l s o i n c a r e of t h e

sequestered jury. They t r a n s p o r t e d t h e j u r y t o and from c o u r t

and had m e a l s w i t h them. They w e r e i n c l o s e c o n t a c t w i t h them

and c o u l d have d i s c u s s e d t h e c a s e .

I n t h e i n s t a n t c a s e t h e s i t u a t i o n i s not analogous i n

o u r view. A s u b s t a n t i a l l e n g t h of t i m e i n t e r v e n e d between t h e

a t t o r n e y g e n e r a l ' s p r e s s c o n f e r e n c e and t h e t i m e o f t r i a l . The

p u b l i c i t y d i d n o t a p p r o a c h t h e volume n o r t h e c o n t i n u i t y o f E s t e s .

The s u b j e c t o f t h e p r e s s c o n f e r e n c e d i d n o t c o n c e r n t h e c h a r g e s

upon which B r e t z was t r i e d i n t h i s c a s e . No c o n f e s s i o n s w e r e

i n v o l v e d and no showing o f i n t e r v i e w s w i t h d e f e n d a n t B r e t z w e r e

made a s i n Rideau. N sequestered jury i n charge of p r i n c i p a l
o

prosecution witnesses i s presented a s i n Turner. The s i t u a t i o n

i n t h e i n s t a n t c a s e f a l l s s h o r t of s u c h i n h e r e n t p r e j u d i c e a s

t o deny d e f e n d a n t B r e t z "due p r o c e s s " i n h i s t r i a l f o r t h e two

c r i m e s w i t h which h e was c h a r g e d .

The o t h e r m a t t e r s mentioned l a c k s p e c i f i c i t y w i t h o n e

exception. The news i t e m i n t h e B i l l i n g s G a z e t t e i s s i m p l y a

news r e p o r t o f a damage s u i t f i l e d a g a i n s t d e f e n d a n t B r e t z , t h e

concluding paragraph simply i s a r e p o r t o f pending c r i m i n a l
charges filed against him. The remaining matters are so lack-
ing in identification, time of occurrence, and specificity that

we are unable to assess their import.
Another principal specification of error is Bretz'

contention that double jeopardy bars his prosecution and con-
viction in the instant case. He argues that the "double jeopardy"

provisions of the United States Constitution prohibit the dis-

missal and refiling of the two charges against him after the
jury had been empaneled and sworn to try the original charges.
We have held to the contrary in State v. Cunningham, 166 Mont.

530 , 535 P.2d 186, 32 St.Rep. 433. The United States District
Court for Montana has denied the "double jeopardy" claim now

raised by Bretz. Bretz v. Crist, 33 St.Rep. 13. An appeal from
the latter decision is now pending before the Court of Appeals
for the Ninth Circuit in San Francisco. Unless and until this
issue is finally resolved by a contrary decision of a higher

federal appeals court, we stand on the decisions in Cunningham

and Bretz.
Defendant Bretz next contends the giving of an instruction
to the jury during the course of their deliberation constitutes
reversible error in that it tends to coerce the minority of jurors
to agree with the majority for the sake of reaching a verdict.

Bretz claims that he has a right to a deadlocked jury.
The instruction reads:

"INSTRUCTION NO.
"Ladies and Gentlemen of the Jury:
"When the trial of this cause began more than
two weeks ago you were selected from a possible
jury panel of 87 jurors. The questioning was long,
varied and searching on behalf of both the State
and all the defendants. As a result of that
voir dire and after exercising 36 preemptory
challenges you were the chosen 12 to decide this
case.
The judicial process assigns tasks to the
various units. It is the task of the witnesses
to testify truthfully as they recall the facts.
It is the task of the lawyers to prepare the
case for final submission to the trier of the
facts, the jury. It is the task of the Judge
to preside, instruct you as to the law and to rule
on the admissibility of the evidence. It is the
task of the jury to decide the case. Scores of
exhibits, lengthy and complete, and many witnesses
have been presented to you in the course of this
trial which has lasted beyond two weeks. The
ultimate responsibility of the jury is to render
verdicts in this cause. You are not partisan nor
are you advocates in this matter but you are the
judges; you are the only judges of the facts; it
is you and you alone that can render verdicts in
this cause. There is no reason to believe that
any other 12 men and women would possess any more
ability, intelligence and courage to do the
ultimate task assigned to a jury under the American
system of justice.
"The final test of the quality of your service will
be in the verdicts which you return to this Court.
It is only by rendering verdicts in this cause
that you can make a definite contribution to effi-
cient judicial administration as you arrive at just
and possible verdicts. We have never asked, as a
matter of fact we have instructed you, that you
should not surrender your honest convictions in
this matter for the mere purpose of returning a
verdict or solely because of the opinion of other
jurors, but this does not mean that you should avoid
a task assigned to you of rendering verdicts in this
cause.
Bretz objected to this instruction as follows:
"MR. MOSES: On behalf of Mr. Bretz, we object
to the Court's proposed instruction to the jury,
a copy of which we have received, to be given dur-
ing the time of the deliberation of the jury. Our
objections are specifically as follows: Number one,
that instructions as to what the law is, or what
their duties are, should not be given to the jury
during the course of its deliberations. Secondly,
that the giving of such instruction may create
undue prominence to any particular phase of the
law and the jury may single out this particular
instruction for guidance when the rule is that the
jury cannot in fact single out any instruction but
that all instructions should be read together and
as a whole. Thirdly, there is an impression left
by this particular instruction that the jury should
take into account the judicial process of selection
of jurors, and the whole system rather than as
having some bearing upon the question of whether a
jury should be pressured into reaching a verdict
in this particular case. Accordingly it is my
judgment and I may say to the Court that it has
always been my opinion-I object to any instruction
given to the jury during deliberation."
 The case had been submitted to the jury at 12:40 p.m.

on June 30, 1975, after approximately a two week trial. The
jury continued its deliberations until about 1:00 a.m. on July
1. The jury foreperson, Mrs. Cumrnins, then indicated to the
judge that the jury had not reached a verdict and she did not
know whether the jury could reach one after a good night's sleep.

The judge sent the jury to bed for the night and it came back
into court at 10:OO a.m. the following morning.

The testimony of defendant Shirley Cline and Mr. Nicolls
was reread to the jury at its request. Then the above quoted

instruction was given. The jury retired to continue its deliber-

ations and returned to court at 2:30 p.m. with its verdict.
We do not consider the above quoted instruction objection-
ably coercive. It does not single out the minority juror and ask
him to reexamine his views for the purpose of reaching a verdict,
a practice this Court found objectionable in State v. Randall,

137 Mont. 534, 353 P.2d 1054. It is not a traditional charge of
the type set forth in Allen v. United States, 164 U.S. 492, 17

S.Ct. 154, 41 L ed 528, which tends to coerce a dissenting juror
into examination of his opinion with respect to reasonable doubt
and which has been condemned by this Court. State v. Randall,
supra. It is not an instruction to the jury to continue its de-
liberations until they reach a unanimous verdict as in Fields v.

State, Alaska 1971, 487 P.2d 831, nor a statement by the judge
that "You have got to reach a decision in this case.", as in
Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L ed 2d
957, 958. Unless we are to outlaw any instruction to the jury
during the course of its deliberations, a view we do not entertain,
it is difficult to draw a more innocuous instruction. We find
no error in giving this instruction.
 Bretz next contends that the admission of state's Exhibit
#2 (the state settlement warrant for $5,400) was error. His con-
tention is that no sufficient foundation was laid for its ad-
mission in that there was no showing who made the endorsement,
under what circumstances the endorsement was made, and that the
endorsement was not connected up with one or more of the defend-
ants.
We hold that the warrant was properly admitted in evi-
dence under the Uniform Business Records as Evidence Act, sec-
tion 93-801-2, R.C.M. 1947, providing:
"A record of an act, condition or event, shall,
in so far as relevant, be competent evidence if
the custodian or other qualified witness testifies
to its identity and the mode of its preparation,
and if it was made in the regular course of business,
at or near the time of the act, condition or event,
and if, in the opinion of the court, the sources of
information, method and time of preparation were
such as to justify its admission."
The foundation showed the settlement warrant had been
prepared in the regular course of business of the Workmen's
Compensation Division; it was certified as the settlement warrant
in question; and the testimony showed it was mailed to defendant
Bretz. Identification of the endorser's signature is not required
as a precondition to admissibility, as it is no less a business
record regardless of who endorsed it. Identification of the
endorser's signature goes to the weight of the evidence, not its
admissibility. [See Wharton's Criminal Evidence, 12th ed. V. 1,
s269, pp. 610, 611, for limitations on admissibility of documents
under the Uniform Business Records As Evidence Act.]
Bretz finally contends the district court improperly
allowed state's witness Lester Jones to testify concerning his
conversation with Wesley Wampole in Dillon, Montana on January 3,
1973 and later on that day during a ride to Great Falls. Bretz
contends the statements were hearsay, did not fall under any
exception to the hearsay rule, and admission in evidence was
reversible error.
The gist of the conversation was that Wesley Wampole
told the witness he had terminated his present employment and
Wampole and the witness had arrived at a tentative agreement
that Wampole would go to work for him.
The significance of this testimony, according to Bretz,
is that it tended to show that Wesley Wampole did not ever work
for Courtesy and this was a vital part of the prosecution's
proof. The state contends the conversation was not introduced
to prove the truth of the assertions, but only to show Wampole's
state of mind.
We hold the testimony inadmissible hearsay. Wampole's
state of mind on January 3 was not material to any issue in the
case. However the admission of the statement was harmless error.
Section 95-2425, R.C.M. 1947, provides:
"Any error, defect, irregularity or variance which
does not affect substantial rights shall be dis-
regarded. * * * "
See also section 95-2412, R.C.M. 1947,to the same effect.
The fact that Wesley Wampole had never worked for Courtesy
was established independently by testimony of Wampole's widow,
Nona, that Wampole had not worked for Courtesy on January 8; and
by the testimony of various employees of Courtesy that Wampole
had never worked there. The objectionable hearsay is simply cum-
ulative testimony on the point. Cumulative testimony has been
held harmless error where, as here, the fact in question is well
established by admissible testimony. Keller v. Safeway Stores,
Inc., 111 Mont. 28, 108 P.2d 605; In re Spoya's Estate, 129 Mont.
83, 282 P.2d 452.

We have considered the other specifications of error in
the briefs of defendant Bretz. None would change our decision
herein. Discussion of each in this Opinion is unwarranted in
our view. We have discussed the principal specifications of error

raised by defendant Bretz with the reasons for our rulings on

each.
The conviction of defendant Bretz is affirmed. The con-

victions of defendant Merrel Cline and defendant Shirley Cline
are reversed and the charges against each dismissed.

Justice

-----

dge, sitting lace of Mr.
Justice Gene B. Daly.