No. 13226 

### INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1976

THE STATE OF MONTANA, Plaintiff and Respondent,

MERREL CLINE, 

### L. R. BRETZ and SHIRLEY CLINE, Defendants and Appellants.

Appeal from: District Court of theFirstJudicialDistrict, Honorable

### W. W. Lessley, Judge presiding. Counsel of Record: For Appellants: Moses, Kampfe, Tolliver and Wright, Billings, Montana Charles Moses argued, Billings, Montana W. WilliamLeaphart argued, Helena, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana John 

### F. North argued, Assistant Attorney General,

Helena, Montana



# >c1 1&.

## 364% ailed: Submitted: September 9, 1976 Decided

### : 

## 141975Mr. JusticeFrank I. Haswell delivered the Opinion of the Court.

Defendants appeal from their convictions of the crime of obtainingmoney by falsepretenses following jury trial in thedistrictcourt of Lewis and Clark County before the Hon. W. W. Lessley, districtjudge presiding. The prosecution arose out of a claim forWorkmen's Compensation benefits inconnectionwith the deathof Wesley Wampole. Defendant Bretz, an attorney, prepared the claim for Wampole's widow, Nona, inwhich it was represented thatWampole died asa result of a severe strain suffered on January 8, 1973, while employed by Courtesy Mobile Homes. Courtesy was a corporationof which defendant Shirley Clinewaspresident and defendantMerrel Cline, her husband, was manager. Mrs. Wampole signed theclaim for compensation benefits but later and atthe trial she stated thatWesley Wampole had not worked for Courtesy on thatday and thatdefendant Bretz had made up the falseclaim to getmoney from the StateWorkmen's Compensation Insurance Fund. Defendant Merrel Cline signed theEmployer's First Report of Injury stating thatWampole had worked for Courtesy on January 8, and caused it tobe filedwith theWorkmen's Compensation Division inHelena. Mr. and Mrs. Stubbs who ran theConrad, Montana office of Courtesy, gave a statement totheWorkmen's Compensation Division thatWesley Wampole was working for Courtesy inConrad on January 8. Atthe trialemployees of Courtesy testified that Wesley Wampole had never worked for Courtesy; that defendant Merrel Cline told them tolie; thatdefendant Shirley Cline instructed thatWesley Wampole's name be entered on thepayroll of Courtesy but thathe wasdead and no check would be issued. Later theWorkmen's Compensation Division entered into

a "nonacceptance" settlement inthe amount of $5,400 based oninformation contained inthe claim fileof Wesley Wampole. The state settlementwarrant was mailed todefendant Bretz' law office inGreat Falls, Montana inFebruary, 1974. Mrs. Wampole later received $2,700 by personal check from defendant Bretz pursuant totheir feearrangement without ever seeing the statesettlementwarrant. The attorney general's officehandled the investigation and prosecution of thiscase under a grant of authority from the 

### state legislature. Section 79-2315, R.C.M. 1947. On October 31, 1974, special assistant attorneys general Richard Dzivi and A1Wells filed a motion for leave tofilean Information direct inthedistrictcourt, Lewis and Clark County. Thismotion was granted and an Information was filedcharging defendants Bretz and Merrel Cline innine countswith the crimes of grand larceny, obtainingmoney and property by falsepretenses, preparing falseevidence, offering falseevidence, and presenting falseproof upon a policy of insurance. Inthe same Informationdefendant ShirleyClinewas charged with one count of presenting falseproof upon a policy of insurance. Subsequently the case came on for trial on March 10, 1975; thejury 

### was empaneled and sworn; and the trialwas continued. On March 21four countswere dismissed. Both the stateand the defendants applied tothisCourt for a 

### writof supervisory control, which 

### we denied. On April 4 the statemoved todismiss the Information for the express and exclusivepurpose of filinga new Information. The state's motion wasgranted and a new Information was filed charging allthree defendants with two crimes: Count I charging thecrimeof grand larceny; and Count I1 charging the crime of obtainingmoney and property by falsepretenses. Subsequently thecase came on for trial, a new jury was

### 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 verdict 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 settlementproceeds was necessary to convict and therewas no evidence that shedid. The stateoffered its proposed instruction #4 

### setting forth the elements of the crime of obtaining money by false pretenses. This instructionwas given to the jury as Instruction No. 18: "Every person who knowingly and designedly,by false or fraudulent representationor 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 falsepretenses are: "1. That therewas 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 Divisionparted with itsmoney or property which accused received. "3. 

### That such representationswere false; and "4. 

### Were made knowingly and designedly with the intent to defraud the Workmen's CompensationDivision. "If, after considering allof the evidence, you find that theprosecution has established beyond a reasonable doubt thatthe defendants acted in such a manner so asto satisfyallof the above elements ator about the date and place stated in the information, you should find the defendants guiltyof obtainingmoney orproperty by false pretenses; if you do not so find, you should find thedefendants not guilty." (Emphasis supplied.) This instruction requires the statetoprove beyond a reasonable doubt that Shirley Cline received part of the settlement proceeds. Although the statenow argues on appeal proof thatdefendant Shirley Cline received a part of the settlement proceeds herself isunnecessary toconvict, citing Statev. Lagerquist, 152Mont. 21, 445 P.2d 910, the above instruction requiring such proof became the "law of the case" and thejury was bound thereby. DeLeon v. McNinch, 146Mont. 287, 407 P.2d 45; McDonald v. Peters, 128 Mont. 241, 272 P.2d 730; Wood v. Jaeger, 128 Mont. 235, 272 P.2d 725; Metcalf v. Barnard-Curtiss Co., 120Mont. 50, 180P.2d 263; Bowman v. ~ewis, 110Mont. 435, 102P.2d 1; Ingman v. Hewitt, 107 Mont. 267, 86 P.2d 653. There is a total absence of proof thatdefendant Shirley Clinereceived any part of the settlement proceeds. On the contrary allthe evidence inthe case indicates she did not. The undisputed evidence shows that the $5,400 state settlement warrant went tothe law officeof defendant Bretz and thatMrs. Wampole

waspaid $2,700. Defendant Shirley Cline testified thatneither she nor her husband atany time received any money from either Mrs. Wampole or defendant Bretz asa result of the deathclaim forWesley Wampole. Defendant Bretz testified thathe atno time shared any legal feeswith defendants Shirley clineorMerrel Cline. Not one witness for either the stateor the defendants testified thatdefendant Shirley Cline obtained any of the settlement proceeds.The conviction of defendant Shirley Cline of the crime of obtainingmoney by falsepretenses must be reversed for a total failureof proof of one of the elements of thecrimeas defined by Instruction No. 18. This renders unnecessary discussion of other specifications of error concerning defendant Shirley Cline. The same situation exists concerning theconviction of defendant Merrel Clineof the crime of obtainingmoney by false pretenses. Aspointed out inthe brief of defendants Cline, "Regardless of what other activityMerrel Clinemay ormay not have engaged in, he cannot stand convicted of obtainingmoney by falsepretenses unless the Stateproved beyond a reasonable doubt that he received money asa result of making falserepresentations". This was required by Instruction No. 18. The onlyreference todefendant Merrel Cline's receiving any money was the testimony of Mrs. Roane, an employee of Courtesy, that she was given $2,000 todeposit shortly afterMerrel Cline returned from visiting defendant Bretz inGreat Falls. The testimony shows that Mrs. Roane quitworking for Courtesy in 1973 and that the $2,000 deposit was made in 1972. This was almost two years before the $5,400 state settlement warrant was issued inFebruary, 1974. There is a total absence of evidence thatdefendant Merrel Clinereceived any of the settlement proceeds as required by Instruction No. 18. Accordingly, the conviction of defendant Merrel Cline must be reversed for a total failureof proof of one of the elements of the crime of obtainingmoney by falsepretenses asrequired by Instruction No. 18. This likewise renders unnecessary further discussion of other specifications of error concerning defendant Merrel Cline. Wenow direct our attention tothe conviction of defendant

### Bretz of the crime of obtainingmoney by falsepretenses. At the outset,he contends that the attorney general and his assistants had no authority to prosecute this case and therefore the conviction must be reversed. Initially defendant Bretz argues that the attorney general's sole authority to prosecute isbased on the legislative authorization contained in section 79-2315, R.C.M. 1947; that such authorizationdoes 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 shallprosecute. The attorney general shall conduct on behalf of the state, all prosecutions for public offensesdisclosed by an audit of a state agencyperformed by the legislative auditor. If the attorney general shall decline suchprosecution 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." DefendantBretz 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 auditperformed 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 offenseswas 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 prosecutions of criminal offenses exposed by the legislative audit in connection with workmen's compensation settlements from the state fund is immaterial. The statutorygrant of authority

covers "publicoffensesdisclosed by an audit of a state agency by the legislative auditor" and does not require individual identificationof 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. DefendantBretz additionally contends that section 79-2315 cannot be applied retroactively to authorize the attorney general to prosecute crimes committed prior to such statutorygrant of authority. DefendantBretz 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 expressly so declared." This Court has previously held that procedural lawsmay 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 proceduralmatter, so section 12-201 is not applicable. The obviouspurpose and intent of section 79-2315 was to give the attorney general authority to prosecute public offensesdisclosed by the legislative audit of theWorkmen's Compensation Division. Defendant Bretz next argues the attorney general unlawfully 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 determinewho may practice law inMontana. Article VII, Section 2, Montana Constitution; Section 93-2005,R.C.M. 1947; In re Senate Bill No. 630Relating 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 "toact as SpecialAssistant Attorney General in all matters concerning the investigationand prosecution of criminal offensesdisclosed 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 obtainingmoney by false pretenses; that the crimes charged were violations of a repealed statute under the old criminal code; that charging the two crimes constitutes duplicitouspleading and additionally required an unlawful joinder of inconsistent and repugnantdefenses; and the Informationwas 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 agenciesunder the old criminal code and that those crimesdo 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 bodypolitic. Section 94-105, R.C.M. 1947, provided: "What intent todefraud is sufficient. Whenever, by any of theprovisions of thiscode, an intent todefraud isrequired inorder toconstitute any offense, it is sufficient if an intent appears todefraud any person, association, or body politic or corporate, whatever," (Emphasis added.) The same is trueof thecrime of obtainingmoney by falsepretenses. Section 94-1805 defined thiscrime as applying to "Every person who knowingly and designedly, by falseor fraudulent representation or pretenses, defrauds any other person of money or property" and did not require that the person defrauded be the owner of the property. Statev. Hanks, 116Mont. 399, 153 P.2d 220. Here, the Information charges "that the IAB/WCD and authorized representatives thereof believed and relied upon such representations and pretenses astrue" and thus parted with the settlement money. This is sufficient tocharge the crime of obtainingmoney by falsepretenses. Defendant Bretz further argues that the crimes charged

wereviolations of a repealed statute. He contends that every necessary element of the crimes charged could only have been committed after January 1, 1974, after the statutesunder which he had been charged had been repealed. Hepoints out that it does not make any differencewhen the fraud was prepared, but only when the fraud was acted upon in 1974. This contention is fallacious. It assumes that allelements of the crimes charged must be completed before January 1, 1974. This isdirectlycontrary 

### to thecontrolling statute, Chapter 513, Section 33, 1973 Session Laws: "The Montana Criminal Code and allother provisions of thisact areeff@ctive January 1, 1974, and shall apply toalloffenses alleged tohave been committed on or after that date. The Montana Criminal Code and allother provisions of this act do not apply tooffenses committed prior to its effective date and prosecutions for such offenses shall be governed by the prior law, which is continued ineffect for thatpurpose, as if thisactwere not in force. For thepurpose of this section, an offense was committed prior tothe effective dateof this act

### if any of the elements of the offense occurred ~rior thereto." (Em~hasis added.) Here the fraud, a necessary element of the crimes charged,was committed in 1973 and the crimeswere properly charged under the old criminal code. DefendantBretz argues that charging the two crimes constitutesduplicitous pleading. He argues that the prohibition againstduplicity is designed to protect his right under the SixthAmendment to the United States Constitution to notice of the nature and cause of the accusation againsthim 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 Statesv. Tanner, 471F.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 obtaining money by false pretenses, are but different legal theories covering the same transaction. They are charged in the alternative 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 knewwhat 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 "Thepurpose of an information is to inform the defendant of what he is charged,nothing more, nothing less." There canbe no double jeopardy under the alternative pleading in 

### this case. Bretz further claims prejudice by requiring joinder of inconsistent and repugnantdefenses. This argument loses its vitality where, as here, the alternative counts are simply different legal theories covering the same transaction. We havepreviously 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 withoutmerit. 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 committed a single act in that county. One of the elements of the crimes charged is fraud in obtaining the state's settlementmoney. 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 actionmust 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-timepublicity 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-timepublicity againsthim have diminished". Theprincipal objectionof 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 thatmore than 35 counts of criminal violations of section 93- 

### 2108, R.C.M. 1947 (solicitationof clientsby 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 onmisdemeanors contained in section 94-5703,R.C.M. 1947. Thedocument further stated that SpecialAssistant Attorney General Donald 

### N. Eastman had "overwhelming evidence and documentation which clearly and unimpeachably demonstrates" that Merrel Cline and otherswere 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 collusion are repugnant." The "Rejection"further stated that reports of interviews of workmen's compensation claimants "flatly demonstrate" that the "runners" were soliciting workmen's compensationbusiness 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 solicitationby a runner appears in at least 38 claims, listed by file number. It then stated that employing

runners to solicit law clientsby 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 1972by 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 limitations, observing that "Running,capping, solicitation,ambulancechasing for attorneys---however it is named---is a universal problem. It is the scourgeof the responsible legal profession, and perilous to society and those clients solicited." It then indicated that inmany states these practices can be prosecuted as felony conspiracieswith extended limitation periods; that currently ambulance-chasing rings are under indictment and being prosecuted for conspiracy inmany parts of the United States;but unfortunatelyMontana conspiracy statutes are inadequate to deal with this aggravated problem. The document continued with the observation that although "Thismatter cannot now be handled at the criminal plateau because of the statute of limitations." the attorney general's special investigators "havebeen instructed to conduct an even more sophisticatedprobe to look for evidence of felony fraud by these

runners.

### " The document concluded with the statement "Thematter 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 commentsby the attorney general at this news conference; a frontpage story in the Billings Gazette concerning a civil action where he and his wife were defendants in a $54,000damage suit "charging fraud in the sale of a dying horse to a minor" with a concluding paragraphstating "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 outsetwe observe that the attorney general's news conference and "Rejection"was held on September 14, 1974,about 9months 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 prospective juror had knowledgeof 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 "dueprocess". DefendantBretz 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 distinguish 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 filewith the clerk of court. Pictures of witnesses, jurymembers, counsel, and defendant were broadcast

on the nightly television news. The ever present cameras couldnot be ignored. The Court sets forththe extra-judicial influences that could readily affectthejury and thejudge. In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L ed 2d 663, a confession of defendant tobank robbery, kidnapping, and murder was recorded liveon filmwith sound and was telecast showing defendant injail with two statetroopers and the sheriff asking leading questions. To the viewing public thiswould appear tobe his trialof guilt. The case of Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13L ed 2d 424, did not involve publicity but rather was reversed because two deputieswho had investigated thecrimeand

wereprincipal prosecution witnesses were also incare of the sequesteredjury. They transported thejury toand from court and had meals with them. They were inclose contact with them and could have discussed the case. In the instant case the situation isnot analogous in

our view. A substantial length of timeintervened between the attorneygeneral's press conference and thetimeof trial. The publicity did not approach the volume nor the continuityof Estes. The subject of thepress conference did not concern the charges upon which Bretz was tried in thiscase. No confessions were involved and no showing of interviews with defendant Bretz were made as inRideau. No sequesteredjury incharge of principal prosecution witnesses ispresented as inTurner. The situation inthe instant case falls shortof such inherent prejudice as todeny defendant Bretz "due process" inhis trial forthe two crimeswith which he was charged. The other mattersmentioned lack specificitywith one exception. The news itemintheBillings Gazette is simply a

news report of a damage suit filed againstdefendant Bretz, the concluding paragraph simply is a report of pending criminalcharges filed against him. The remaining matters are so lacking 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 conviction in the instant case. He argues that the "double jeopardy" provisions of the United States Constitution prohibit the dismissal 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: "INSTRUCTIONNO. "Ladiesand Gentlemen of the Jury: "When the trial of this cause began more than two weeks ago youwere 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, instructyou 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 responsibilityof the jury is to render verdicts in this cause. You are not partisan nor are you advocates in thismatter 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 12men and women would possess any more ability, intelligenceand 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 canmake a definite contribution to efficient judicial administrationasyou arrive at just and possible verdicts. We have never asked, as a matter of factwe have instructed you, that you should not surrender your honest convictions in thismatter for themere purpose of returning a verdict or solely because of the opinion of other jurors,but this does notmean that you should avoid a task assigned to you of rendering verdicts in this cause. Bretz objected to this instructionas 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 during 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 instructionmay 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 instructionbut 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 ismy judgment and Imay 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 knowwhether 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 instructionwas given. The jury retired to continue its deliberations and returned to court at 2:30 p.m. with its verdict. We do not consider the above quoted instruction objectionably 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 deliberationsuntil they reach a unanimous verdict as in Fieldsv. State,Alaska 1971, 487 P.2d 831,nor a statementby 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'sExhibit #2 (thestate settlement warrant for $5,400)was error. His contention is that no sufficient foundation was laid for its admission in that there was no showing who made the endorsement, under what circumstances the endorsementwas made, and that the endorsementwas not connected up with one or more of the defendants. We hold that the warrant was properly admitted in evidence under the Uniform Business Records as Evidence Act, section 93-801-2, R.C.M. 1947,providing: "Arecord 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 itwas 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 theWorkmen's Compensation Division; itwas certified as the settlement warrant in question; and the testimony showed it was mailed to defendant Bretz. Identificationof 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 conversationwith Wesley Wampole in Dillon,Montana on January 3, 

### 1973 and later on that day during a ride to Great Falls. 

### Bretz contends the statementswere hearsay, did not fall under any

### exception to the hearsay rule, and admission in evidence was reversible error. The gist of the conversationwas 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 thatWesley Wampole did not ever work for Courtesy and this was a vital part of the prosecution's proof. The state contends the conversationwas not introduced to prove the truth of the assertions,but only to showWampole's state ofmind. We hold the testimony inadmissiblehearsay. Wampole's state ofmind on January 3 

### was notmaterial to any issue in the

case. However the admission of the statementwas harmless error. Section 95-2425,R.C.M. 1947,provides: "Any error, defect, irregularityor variance which does not affect substantial rights shall be disregarded. 

## * * *" See also section 95-2412,R.C.M. 1947,to the same effect. The fact thatWesley Wampole had never worked for Courtesy was established independentlyby testimony of Wampole's widow, Nona, thatWampole had not worked for Courtesy on January 8; and by the testimony of various employees of Courtesy thatWampole had never worked there. The objectionable hearsay is simply cumulative testimonyon 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., 111Mont. 28, 108 P.2d 605; In re Spoya's Estate, 129Mont. 83, 

### 282 P.2d 452. We have considered the other specifications of error in the briefs of defendant Bretz. None would change our decisionherein. 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 convictions of defendant Merrel Cline and defendant Shirley Cline

are reversed and the charges against each dismissed.

Justice



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