concurring specially as to Part II.
I concur only in the result reached by the majority in Part II of the court’s opinion. The same general reasoning I used in my specially concurring opinion in Buckles v. State, Wyo. 1981, 622 P.2d 934 is applicable here and this specially concurring opinion may be in part repetitive in that regard. Here, though, I do agree that the question of the statutory requirement of the jury finding value of property is squarely before the court and that it must be decided.
Appellant seeks reversal of his conviction because of alleged inadequacies in the jury’s *746verdict. He cites § 7-11-502, W.S.1977, which provides:
“When the indictment charges an offense against the property of another by larceny, embezzlement or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in their verdict the value of the property stolen, embezzled or falsely obtained.” (Emphasis added.)
He then notes the jury verdict:
“We, the Jury, duly empaneled and sworn to try the above entitled case, do find the Defendant, Elvis D. Hatheway, guilty of Embezzlement.”
From this he argues that the jury’s failure to find the value of the property embezzled is reversible error, citing State v. Chambers, 1952, 70 Wyo. 283, 249 P.2d 158.
I agree with counsel for the appellant that there was error in that this court has already decided the question in Chambers, and I see no good reason to upset the case. That decision was handed down over twenty-eight years ago, in October, 1952, and the legislature has not seen fit to amend § 10-1402, W.C.S. 1945, now § 7-11-502, W.S.1977, supra, and apparently has concluded that it has value. In Chambers this court reviewed the provision which had remained unchanged since its original enactment in 1869 as § 156, ch. 75, Title 13, Territorial Laws 1869. It concluded:
“ * * * After all of these years it hardly behooves us to do what successive sessions of legislatures have failed to do, repeal Section 10-1402 [§ 7-11-502, W.S. 1977], by a judicial decree. It has stood all of these years without change. If we had the power of legislation, we might change this statute; but we do not possess that function. It is impossible for us to say that this statute is unreasonable. We can only consider legislation as it exists. Courts are not authorized to substitute their views for those of the legislature. One of the chief merits of this great American Republic is the division of powers, in both the state and national governments, into three grand departments, the executive, the legislative and the judicial. It is essential to the success of this form of government that the powers invested in any one of these departments shall not be permitted to encroach upon the powers of any one of the others. As stated by this court in White v. Hinton, 3 Wyo. 760, 30 P. 953, ‘whether legislation is wise or unwise, politic or impolitic, is not a judicial question.’ Again, ‘ * * * the courts will not conjure up theories to overturn and overthrow the solemn declarations of the legislative body.’ State ex rel Voiles v. High School, 43 Wyo. 504, 5 P.2d 255; State v. W. S. Buck Merc. Co., 38 Wyo. 47, 264 P. 1023, 57 A.L.R. 675; Brown v. Clark, 47 Wyo. 216, 34 P.2d 17.” at 70 Wyo. 292, 249 P.2d 158. (Emphasis added.)
I continue to believe that is the law of the state. If we omit the word “embezzlement” from § 7-11-502, supra, we are amending the section. That goes beyond construction. Innumerable decisions relating to statutory construction militate against disregarding a word in a statute. If language of a statute is plain and unambiguous, there is no room for construction and the court may not look for and impose another meaning. Hayes v. State, Wyo. 1979, 599 P.2d 558 (for many other cases, see Key No. 190, Statutes, Wyoming Digest). A court may not rewrite a statute which it believes speaks clearly. State ex rel. Albany County Weed and Pest District v. Board of County Commissioners of County of Albany, Wyo. 1979, 592 P.2d 1154. Courts will not read into statutes exceptions not made by the legislature. Lo Sasso v. Braun, Wyo. 1963, 386 P.2d 630. In construing a statute effect must be given, if possible, to every word, clause and sentence. Basin Electric Power Coop. v. State Board of Control, Wyo. 1978, 578 P.2d 557. Courts will not usurp the power of the legislature by deciding what should have been said. Barber v. State Highway Commission, 1959, 80 Wyo. 340, 342 P.2d 723. This court just simply cannot amend statutes under the guise that it is construing a statute.
The State in Chambers had urged this court to follow the lead of Nebraska and *747Ohio courts which had construed similar statutes and held there was no need to require a jury to find and declare value in its verdict where the degree of the crime does not depend on value. Justice Ilsley speaking for this court responded: “Whatever the reasons given by the Ohio and Nebraska courts for the overruling of their previous decisions, we find no good reason for so doing as far as the law on the subject in Wyoming is concerned.” (Emphasis added.) This court did not then depend upon the law of any other jurisdiction but upon the important separation of powers concept that we will not interfere with the work of the legislature. I also do not consider it pertinent what Ohio and Nebraska may have done either statutorily or by court opinion since that time. The touchstone of Chambers is that this court will not judicially amend, by deletion of a word, a legislative enactment. The majority discusses the history and points out that at one time value was an element in distinguishing between embezzlement as a misdemeanor and embezzlement as a felony. I have no argument with that fact. Value of property in distinguishing between a misdemeanor and a felony was omitted at the eleventh and last session of the territorial legislature of the State of Wyoming, § 53, ch. 73, 1890, convened in January and adopted as the law of the State of Wyoming at the first session of the Wyoming State Legislature, § 1, ch. 35, 1890, convened in November, 1890; but the legislature did not at that time nor at any time since omit the requirement of a finding in embezzlement cases of value by the jury, now in existence for ninety years.
At the time Chambers was decided, this court was not called upon to determine whether the doctrine of harmless or plain error applied as the State here asks. This was despite the existence of § 3-1705, W.C.S. 1945 which provided:
“The court in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”
Rule 49(a), W.R.Cr.P. provides that: “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” This rule is echoed in Rule 7.04, W.R.A.P. which is in identical language. This issue was never specifically considered in the early case of Thomson v. State, 1913, 21 Wyo. 196, 130 P. 850, though there existed § 4438, W.C.S. 1910, which provides exactly the same as § 3-1705, W.C.S. 1945, supra. Nor was it considered in Merrill v. State, 1913, 22 Wyo. 186, 136 P. 795; in spite of the fact that the same basic statutory provision was in effect until adoption of Wyoming Rules of Criminal Procedure.
Now presented with the issue of what effect the principles of harmless error and plain error have upon the subject, we can take away any confusion about legislative intent and avoid judicial amendment of a statute which I believe the majority does in Part II. By using the legislatively adopted doctrines of-harmless and plain error we can avoid ignoring the clear legislative intent and amending the statute. The burden can easily be placed upon the parties to insure that the appropriate findings are made by the jury whenever they feel it to be important. This approach would permit a sensible flexibility and furnish a manner of disposition in this case in particular, without this court legislating.
I would have held that it was error to omit from the verdict form a provision for the jury to find the value of the property or the amount embezzled, but yet have required appellant to have objected at trial and to demonstrate on appeal prejudice resulted in order to justify reversal. A similar omission appeared in Kennedy v. State, Wyo. 1977, 559 P.2d 1014, 1017, where error was claimed on appeal that the court had failed to include in the verdict statutorily required language: “ * * * each verdict shall also contain the words, ‘and find that defendant was sane at the time of the commission of the offense.’ * * * ” Section 7-242(c), W.S.1957, repealed in 1975 because of a complete revision of the procedure in *748the trial of cases wherein the defense of mental illness is raised. This court said:
“ * * * We are convinced that had this been called to the trial court’s attention this would have been done. Error cannot be asserted for the first time on appeal, Wright v. State, Wyo., 466 P.2d 1014, 1016, and Connor v. State, Wyo., 537 P.2d 715, 717. * * * ” 559 P.2d at 1018.
The court then went on to point out that there was no prejudicial error but it specifically did not judicially repeal the requirement.
The defense counsel in the case before us should have called the omission to the attention of the trial court in order to give the trial court an opportunity to correct the error. This is particularly true if the defendant-appellant thought it might have been of some value to his defense. The trial judge would probably then have made some provision for a finding of value in the verdict. Appellant’s failure to raise the issue with the judge would seemingly indicate that it was not considered an important point at the time and is only raised now as a desperate attempt to win a new trial. If defense counsel noticed that value should have appeared and permitted error to exist, then I would wonder about brief case error, a trial tactic with which counsel must live. Tryon v. State, Wyo. 1977, 567 P.2d 290. A defendant must bear some responsibility for the manner in which a trial is conducted. Plain errors affecting substantial rights may be noticed although they were not brought to the attention of the court. Rule 49(b), W.R.Cr.P.; Rule 7.05, W.R.A.P. But they will not be acknowledged gratuitously, rather only in those rare circumstances where the rights lost by appellant were too blatant to assume the trial judge needed them brought to his attention. Benson v. State, Wyo. 1977, 571 P.2d 595. Thus here, I would have held that the clear language of the statute be kept intact and that the appellant be required to demonstrate that there was a transgression of a clear and unequivocal rule of law and that appellant was prejudiced by such a transgression in order to be entitled to a new trial. Hampton v. State, Wyo. 1977, 558 P.2d 504, 507. No showing has been made that if the jury had been required to find a dollar amount there would have been a different outcome. I would only conclude that there was harmless error.
Restitution as mentioned in the majority opinion, Part II, is always a consideration in the sentencing process in an embezzlement case. It frequently is a condition of probation. A jury finding of the amount provides an aid to the trial judge in fixing the amount thereof and avoids his having to make that computation. The requirement of finding of value is not a useless gesture.
In conclusion then, I am unwilling to concede that the statute, § 7-11-502, is capable of being construed to delete the word “embezzlement.” I continue to believe that the finding of value by the jury is an important factor in the sentencing process as I pointed out in my concurring opinion in Buckles v. State, supra, including restitution as a condition of probation. But before this court can even consider the question, the appellant should have objected to the omission in the absence of plain error.