No. 13226 

IN THE 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 the First Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants : 

Moses, Kampfe, Tolliver and Wright, Billings, Montana 

Charles Moses argued, Billings, Montana 

W. William Leaphart argued, Helena, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

John F. North argued, Assistant Attorney General, 

Helena, Montana 

>c 1 1 &. 364% 

ailed : 

Submitted: September 9, 1976 

Decided : 

14 1975 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendants appeal from their convictions of the crime 

of obtaining money by false pretenses following jury trial in 

the district court of Lewis and Clark County before the Hon. W. 

W. Lessley, district judge presiding. 

The prosecution arose out of a claim for Workmen's 

Compensation benefits in connection with the death of Wesley 

Wampole. Defendant Bretz, an attorney, prepared the claim for 

Wampole's widow, Nona, in which it was represented that Wampole 

died as a result of a severe strain suffered on January 8, 1973, 

while employed by Courtesy Mobile Homes. Courtesy was a corporation of which defendant Shirley Cline was president and defendant Merrel Cline, her husband, was manager. Mrs. Wampole signed 

the claim for compensation benefits but later and at the trial 

she stated that Wesley Wampole had not worked for Courtesy on 

that day and that defendant Bretz had made up the false claim to 

get money from the State Workmen's Compensation Insurance Fund. 

Defendant Merrel Cline signed the Employer's First Report 

of Injury stating that Wampole had worked for Courtesy on January 8, and caused it to be filed with the Workmen's Compensation 

Division in Helena. 

Mr. and Mrs. Stubbs who ran the Conrad, Montana office 

of Courtesy, gave a statement to the Workmen's Compensation Division that Wesley Wampole was working for Courtesy in Conrad on 

January 8. At the trial employees of Courtesy testified that 

Wesley Wampole had never worked for Courtesy; that defendant 

Merrel Cline told them to lie; that defendant Shirley Cline 

instructed that Wesley Wampole's name be entered on the payroll 

of Courtesy but that he was dead and no check would be issued. 

Later the Workmen's Compensation Division entered into 

a "nonacceptance" settlement in the amount of $5,400 based on 
information contained in the claim file of Wesley Wampole. 

The state settlement warrant was mailed to defendant Bretz' 

law office in Great Falls, Montana in February, 1974. Mrs. 

Wampole later received $2,700 by personal check from defendant 

Bretz pursuant to their fee arrangement without ever seeing 

the state settlement warrant. 

The attorney general's office handled the investigation 

and prosecution of this case 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 A1 Wells filed a motion for leave to file an 

Information direct in the district court, Lewis and Clark County. 

This motion was granted and an Information was filed charging 

defendants Bretz and Merrel Cline in nine counts with the crimes 

of grand larceny, obtaining money and property by false pretenses, 

preparing false evidence, offering false evidence, and presenting false proof upon a policy of insurance. In the same Information defendant Shirley Cline was charged with one count of presenting false proof upon a policy of insurance. 

Subsequently the case came on for trial on March 10, 1975; 

the jury was empaneled and sworn; and the trial was continued. 

On March 21 four counts were dismissed. Both the state and the 

defendants applied to this Court for a writ of supervisory control, 

which we denied. 

On April 4 the state moved to dismiss the Information for 

the express and exclusive purpose of filing a new Information. 

The state's motion was granted and a new Information was filed 

charging all three defendants with two crimes: Count I charging 

the crime of grand larceny; and Count I1 charging the crime of 

obtaining money and property by false pretenses. 

Subsequently the case 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 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 Division 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. 

"If, after considering all of the evidence, you 

find that the prosecution has established beyond 

a reasonable doubt that the defendants acted in 

such a manner so as to satisfy all of the above 

elements at or about the date and place stated in 

the information, you should find the defendants 

guilty of obtaining money or property by false 

pretenses; if you do not so find, you should 

find the defendants not guilty." (Emphasis 

supplied.) 

This instruction requires the state to prove beyond a 

reasonable doubt that Shirley Cline received part of the settlement proceeds. Although the state now argues on appeal proof 

that defendant Shirley Cline received a part of the settlement 

proceeds herself is unnecessary to convict, citing State v. 

Lagerquist, 152 Mont. 21, 445 P.2d 910, the above instruction 

requiring such proof became the "law of the case" and the jury 

was bound thereby. DeLeon v. McNinch, 146 Mont. 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., 120 Mont. 50, 180 P.2d 263; Bowman v. ~ewis, 110 Mont. 435, 

102 P.2d 1; Ingman v. Hewitt, 107 Mont. 267, 86 P.2d 653. 

There is a total absence of proof that defendant Shirley 

Cline received any part of the settlement proceeds. On the contrary all the evidence in the case indicates she did not. The 

undisputed evidence shows that the $5,400 state settlement warrant 

went to the law office of defendant Bretz and that Mrs. Wampole 

was paid $2,700. Defendant Shirley Cline testified that neither 

she nor her husband at any time received any money from either 

Mrs. Wampole or defendant Bretz as a result of the death claim 

for Wesley Wampole. Defendant Bretz testified that he at no time 

shared any legal fees with defendants Shirley cline or Merrel 

Cline. Not one witness for either the state or the defendants 

testified that defendant Shirley Cline obtained any of the settlement proceeds. 
The conviction of defendant Shirley Cline of the crime 

of obtaining money by false pretenses must be reversed for a 

total failure of proof of one of the elements of the crime as 

defined by Instruction No. 18. This renders unnecessary discussion of other specifications of error concerning defendant 

Shirley Cline. 

The same situation exists concerning the conviction of 

defendant Merrel Cline of the crime of obtaining money by false 

pretenses. As pointed out in the brief of defendants Cline, 

"Regardless of what other activity Merrel Cline may or may not 

have engaged in, he cannot stand convicted of obtaining money 

by false pretenses unless the State proved beyond a reasonable 

doubt that he received money as a result of making false representations". This was required by Instruction No. 18. 

The only reference to defendant Merrel Cline's receiving 

any money was the testimony of Mrs. Roane, an employee of Courtesy, 

that she was given $2,000 to deposit shortly after Merrel Cline 

returned from visiting defendant Bretz in Great Falls. The 

testimony shows that Mrs. Roane quit working 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 

in February, 1974. There is a total absence of evidence that defendant Merrel Cline received any of the settlement proceeds as 

required by Instruction No. 18. 

Accordingly, the conviction of defendant Merrel Cline 

must be reversed for a total failure of proof of one of the elements of the crime of obtaining money by false pretenses as required by Instruction No. 18. This likewise renders unnecessary 

further discussion of other specifications of error concerning 

defendant Merrel Cline. 

We now direct our attention to the conviction of defendant 
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 therefore the conviction must be reversed. 

Initially defendant Bretz argues that the attorney 

general's sole authority to prosecute is based on the legislative 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 legislative 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 prosecutions 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 expressly 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 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 determine who may 

practice law in Montana. Article VII, Section 2, Montana Constitution; 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 required 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. Section 94-105, R.C.M. 1947, provided: 

"What intent to defraud is sufficient. Whenever, 

by any of the provisions of this code, an intent 

to defraud is required in order to constitute 

any offense, it is sufficient if an intent appears 

to defraud any person, association, or body politic 

or corporate, whatever," (Emphasis added.) 

The same is true of the crime of obtaining money by 

false pretenses. Section 94-1805 defined this crime as applying 

to "Every person who knowingly and designedly, by false or 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. State v. Hanks, 116 Mont. 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 as true" and thus parted with the 

settlement money. This is sufficient to charge the crime of 

obtaining money by false pretenses. 

Defendant Bretz further argues that the crimes charged 

were violations 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 statutes under which 

he had been charged had been repealed. He points out that it does 

not make any difference when the fraud was prepared, but only 

when the fraud was acted upon in 1974. 

This contention is fallacious. It assumes that all elements 

of the crimes charged must be completed before January 1, 1974. 

This is directly contrary to the controlling statute, Chapter 513, 

Section 33, 1973 Session Laws: 

"The Montana Criminal Code and all other provisions 

of this act are eff@ctive January 1, 1974, and shall 

apply to all offenses alleged to have been committed 

on or after that date. The Montana Criminal Code 

and all other provisions of this act do not apply 

to offenses committed prior to its effective date 

and prosecutions for such offenses shall be governed 

by the prior law, which is continued in effect for 

that purpose, as if this act were not in force. 

For the purpose of this section, an offense 

was committed prior to the effective date of 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 crimes were properly charged under the 

old criminal code. 

Defendant Bretz argues that charging the two crimes constitutes 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 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 

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 alternative 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 different 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 committed 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 section 94-5703, R.C.M. 1947. The document further stated that 

Special Assistant Attorney General Donald N. Eastman had "overwhelming 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 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 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 limitations, observing that "Running, capping, solicitation, ambulancechasing for attorneys---however it is named---is a universal problem. It is the scourge of the responsible legal profession, and 

perilous to society and those clients solicited." It then indicated that in many states these practices can be prosecuted as 

felony conspiracies with extended limitation periods; that currently ambulance-chasing rings are under indictment and being prosecuted 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 prospective 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 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 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 
not be ignored. The Court sets forth the extra-judicial influences 

that could readily affect the jury and the judge. 

In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 

L ed 2d 663, a confession of defendant to bank robbery, kidnapping, 

and murder was recorded live on film with sound and was telecast 

showing defendant in jail with two state troopers and the sheriff 

asking leading questions. To the viewing public this would appear 

to be his trial of guilt. 

The case of Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 

546, 13 L ed 2d 424, did not involve publicity but rather was 

reversed because two deputies who had investigated the crime and 

were principal prosecution witnesses were also in care of the 

sequestered jury. They transported the jury to and from court 

and had meals with them. They were in close contact with them 

and could have discussed the case. 

In the instant case the situation is not analogous in 

our view. A substantial length of time intervened between the 

attorney general's press conference and the time of trial. The 

publicity did not approach the volume nor the continuity of Estes. 

The subject of the press conference did not concern the charges 

upon which Bretz was tried in this case. No confessions were 

involved and no showing of interviews with defendant Bretz were 

made as in Rideau. No sequestered jury in charge of principal 

prosecution witnesses is presented as in Turner. The situation 

in the instant case falls short of such inherent prejudice as 

to deny defendant Bretz "due process" in his trial for the two 

crimes with which he was charged. 

The other matters mentioned lack specificity with one 

exception. The news item in the Billings Gazette is simply a 

news report of a damage suit filed against defendant Bretz, the 

concluding paragraph simply is a report of pending criminal 
charges 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: 

"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 efficient 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 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 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 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 deliberations 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 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 endorsement was made, and that the 

endorsement was 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: 

"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 disregarded. * * *" 

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 cumulative 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 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.