### No. 13826

IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsL. R. BRETZ, Defendant and Appellant.

Appeal from: District Court of the EighlhJudicial District, Honorable A. 

### B. Martin, Judge presiding. Counsel of Record: For Appellant: George 

### W. Huss argued, Miles City, Montana For Respondent: Hon. Mike Greely,Attorney General, Helena, Montana Robert S. Keller argued,Assistant Attorney General,

Kalispell,Montana Thomas Budewitz argued, Townsend, Montana

Submitted: December 11, 1978

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

On December 1, 1976, after a trial by jury inthe DistrictCourt of theEighth Judicial District, the Honorable A. B. arti in presiding, defendant 

### was convicted of fourteen counts of grand larceny, two counts of obtaining money and property by falsepretenses, and two counts of preparing falseevidence. Hewas sentenced to fourteen-year prison 

### terms on each count with the exception of two counts of preparing false evidence which offenses 

### were found tobe incident toother offenses forwhich defendant was sentenced. The sentenceswere grouped so that defendant was ultimately sentenced to 56 years inprison, the last 30 years tobe suspended on the condition that defendant reimburse the victims of the offenses within one year from the 

### timeof sentencing. Defendant 

### was unable tomake restitution within the prescribed 

### timeand brings this appeal. Inview of the number and complexity of the issues presented for review, factual summaries, insofar 

### as they are pertinent, 

### willaccompany our discussion of individual issues. Defendant presents twenty-one issues for review by this Court: 1. Whether defendant was denied his right to a speedy trial under the Sixth and Fourteenth Amendments tothe United StatesConstitution and Article 11, Section 24 of the 1972Montana Constitution. 2. Whether defendant was denied his right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article 11, Sections 4 and 24 of the 1972Montana Constitu tion.3. Whether defendant was denied his right to trialby

a fair and impartial jury under the Fifth and Fourteenth Amendments tothe United States Constitution and Article 11, Sections 4 and 24 of the 1972Montana Constitution by virtue of extensive pretrial and trial publicity. 4. Whether the DistrictCourt erred in denying defendant's motion toquash the information due to the lack of showing of probable cause for its filing. 5. Whether prosecution 

### of this 

### case was barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution and the accompanying doctrine of collateral estoppel and by the provisions of section 95-1711, R.C.M. 1947, now sections 46-11-501 through -505 MCA. 6. Whether the District Court erred inrefusing to grant a new trial on the basis of a juror's independent knowledge of the facts of the case. 7. Whether defendant's sentence constituted cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and Article 11, Sections 22 and 28 of the Montana Constitution of 1972. 8. Whether conditioning suspension of the 

### last 30 years of defendant's 56 year sentence on defendant's payment of restitution by December 13, 1977, was improper and constituted cruel and unusual punishment. 9. Whether defendant's sentencing hearing was properly conducted. 10. Whether the District Court erred inadmitting certain evidence. 11. Whether the Stateproved the essential elements of the offense of preparing false evidence.12. Whether the Stateproved the essential elements of larceny by bailee. 13. Whether defendant was denied his right to

### a fundamentally fairtrialunder the Sixth and Fourteenth Amendments to the United States Constitution and Article 11, Section 24 of the 1972Montana Constitution because of alleged over-zealous actson the part of the prosecution. 14. Whether defendant was denied the opportunity to present his defense. 15. Whether the DistrictCourt erred inallowing certain testimony with respect to reasonable attorney's fees.16. Whether the DistrictCourt erred inexcluding other testimony with respect toreasonable attorney's fees. 17. Whether the DistrictCourt erred inallowing testimony concerning other crimes of the accused. 18. Whether the DistrictCourt erred inallowing the State to impeach itsown witness inthe absence of a showing of surpriseby the State. 19. Whether the District Court erred inallowing the testimony of Larry Sanford. 20. Whether the DistrictCourt erred with respect to 

### itsjury instructions relating to the offenses of obtaining money and property by falsepretenses and preparing false evidence. 21. Whether the DistrictCourt erred inrefusing certain of defendant's jury instructions and ingiving certain of the State's instructions. Wewilladdress these issues inthe order of their presentation.SPEEDY TRIAL The following is a table of dates and events relevant toour consideration of whether defendant 

### was denied his right toa speedy trial: DATE 7/30/74 8/5/74 9/16/74 9/26/74 10/15/74 10/16/74 4/16/75 5/8/75 5/20/75 7/29/75 8/27/75 ACTION Information filed DAYS ELAPSED 0 Arraignment 6 New Information filed 48 Motion for Change of Venue filed 58 Change of Venue granted 77 Stateappeals order 78 Supreme Court reverses order 260 Remittitur filed 282 Amended Information filed 294 Defense procedural motions filed 364 State's response tomotions filed 393 Hearing of motions and arraignment 

### of defendant 414 Statemoves tocontinue pre

### trial conference 478 Pretrial conference--speedy trialmotions 517 The right to a speedy trial is guaranteed by both the United States and Montana Constitutions. U.S. Const., Amend. VI; 1972Mont.Const., Art. 11, 524. The federal standard, as a minimum, 

### is imposed upon the states by the due process clause of theFourteenth Amendment. See Dickey

V. Florida (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L Ed 2d 26; Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L

Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L Ed 2d 101, 116-17, is the touchstone inan analysis of speedy trial issues. See Statev. Tiedemann

(1978) I Mont. 

### , 584 P.2d 1284, 1287, 35 St.Rep. 1705, 1707; Statev. Collins (1978), Mont. 

## , 582 P.2d 1179, 1186, 35 St.Rep. 993, 1002; Statev. Cassidy (1978) Mont. 

## , 578 P.2d 735, 737, 35 St.Rep. 612, 614; State ex 

### rel. Briceno v. District Court (1977), Mont. 

## , 568 P.2d 162, 164, 34 St.Rep. 927, 930; Statev. Keller (1976), 170Mont. 372, 377, 553 P.2d 1013, 1016; Stateex 

### rel. Sanford v. ~istrict Court (1976), 170Mont. 196, 199, 551 P.2d 1005, 1007; Statev. Steward (1975), 168 Mont. 385, 389, 543 P.2d 178, 181; Fitzpatrick v. Crist (1974), 165Mont. 382, 388, 528 P.2d 1322, 1325; Statev. Sanders (1973), 163Mont. 209, 213, 516 P.2d 372, 375. In Barker, the petitioner was not tried untilmore than fiveyears had passed from the time he 

### was arrested. The delay inthat case largely resulted from the fact that Barker's accomplice 

### was tried six 

### times altogether before finallybeing convicted. InBarker 

## , 407 U.S. at 521, 92 S.Ct. at2187, 33 L.Ed.2d at 111, the Supreme Court noted: "A 

# . . . difference between the right to speedy trial and the accused's other constitutional rights is that deprivation of the rightmay work to the accused's advantage. Delay is not an uncommon defense 

### tactic. As the 

### timebetween the commission of the 

### crimeand trial lengthens, witnesses may become unavailable or their memories may fade. If thewitnesses support the prosecution, its 

### case willbe weakened, sometimes 

### seriously so. And it is theprosecution which carries the burden of proof. Thus, unlike the right to counsel or the right tobe free from compelled self-incrimination, deprivation 

## -- of the right to speedy 

## ----- trialdoes not per 

### se prejudice the accused's ability 

### - todefend himself." (Emphasis added.) The Court went on toreject two approaches which could have eliminated a great deal of uncertainty inprokecting the right. The suggestions 

### were that the Court (1)hold that the Constitution requires a criminal defendant tobe offered

a 

### trial within a specified 

### timeperiod, or (2) adopt some form of the demand-waiver doctrine. "The demand-waiver doctrine provides that a defendant waives any consideration of his right to speedy trial for any period prior towhich he has not demanded a trial." Barker, 407 U.S. at525, 92 S.Ct. at2189, 33 L Ed 2d at 114. The Court found each of these approaches too inflexible--"the fixed-time period because it goes further than the Constitution requires; thedemand-waiver rulebecause it 

### is insensitive to a right which 

### we have deemed fundamentalv--and adopted instead "a balancing test, inwhich the conduct of both the prosecution and the defendant areweighed." Barker, 407 U.S. at529-30, 92 S.Ct. at2191-2192, 33 L Ed 2d at 116. Noting that courts must approach speedy trial cases on

an ad hoc basis, the Court identified four factors tobe considered aspart of thebalancing 

### test: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker, 407 U.S. at 530, 92 S.Ct. at2192, 33 L Ed 2d 117. We

### willdiscuss each of these factors inturn aswe examine defendant's claim in the instant case. Statev. Sanders (1973), 163Mont. 209,

Length 

### - of delay. The Supreme Court addressed the delay factor as follows: "The length of the delay is to some extent a triggering mechanism. Until there 

### is some delay which ispresumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy.trial, 

## - the length of delay that

### willprovoke such an inquiry is necessaril 

## -- 

## -- dependent upon thepeculiar circum~ances 

## -- of thz case. To take but one example, the delay that can 

## ---- 

## -- be tolerated for an ordinary 

### street 

### crime is con

### - -- -- siderably 

## --- less than for a serious, complex conspiracy charge." Barker, 407 U.S. at530-31, 92 S.Ct. at 2192, 33 L Ed 2d at 117. (~mphasis supplied.) There isno question that this case is a complex one. Defendant noted inhis brief that the "case consists of a transcript of 4,316 pages 

# . . . and five fullvolumes of court files. There were hundreds of exhibits offered and admitted attrial." In addition to that, we note that the briefs submitted to this Court on appeal addressing twentyone issuespresented for review areover 300 pages inlength.Thus, the delay here that can be tolerated is considerably

more than for an ordinary 

### street 

### crime. Even so, the delay inthis 

### case 

### is extremely long. We note, inparticular, that the 205 days exhausted by the State's appeal of the change of venue order must be charged against the State. Section 95-2407, R.C.M. 1947, now 

### section 46-20-205 MCA. Therefore, 

### we find that the 517 days between the initial filing of an Information inthis case and defendant's motion todismiss for lack of speedy trial is of sufficient length under the circumstances of this 

### case totrigger the inquiry into the other factors enumerated in Barker and asadopted previously by thisCourt. Reason 

## -- for the delay. Addressing this factor, the Supreme Court stated: "Here, too, differentweights should be assigned todifferent reasons. A deliberate attempt to delay the trialinorder tohamper the defense should be weighed heavily against the government. A more neutral reason such asnegligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must 

### rest with the government rather than with the defendant. Finally, a valid reason, such as a 

### missingwitness, should serve tojustify appropriate delay." Barker, 407 U.S. at531, 92 S.Ct. 

### at 2192, 33 L Ed 2d at117. The State, inthe instant case, argues that inlight of the complexity of the case, matters proceeded inan orderly fashion. It demonstrates one delay of 54 days when defendant's defense motions 

### were overdue. Viewing the record as

a whole, themost serious delay on the part of the prosecution appears tobe the 205 days taken up by the State's appeal of the October 15, 1974, change of venue order. There is no showing orany attempt to show inthe record that this delay was inany way a "deliberate attempt to delay the t r i a l i norder tohamper the defense." It appears

### thatrthis.delay may have been the result of some negligence

on the part of the State,but crowded calendars and courts

were also involved and accordingly, the time should "be weighed less heavily but nevertheless considered." Defendant relies heavily on a Federal ~istrict Court decision in a related case, In the Matter of Carden (1978), CY-77-61-H, decided May 12, 1978. Defendant asserts that the most significant element of that Court's decision to dismiss for lack of speedy trial was the reason for the delay, specifically the length of the Carden Information. The State addresses the length of the charging document and any delay occasioned by it in the following terms: "Thedismissal of the first information and the filing of the second information constituted no delay; three individuals were dropped, which did not prejudice the defendant, and six individuals were added, but the basic motions of the defendant against either information remained the same. The six new individuals had to be added, or the defendantwould be prejudiced with another suit. The counts were doubled, but that was because of the confusion under the old larceny statutes, and itwas a matter of pleading the same counts in the alternative, with the same individuals involved." Another factor considered negligent in Carden which is not present in the instant case was delay attributable to the State by its untimely disqualification of Judge Allen and the subsequent appeal. The Federal Court held that "the decision to disqualify Judge Allen was reached in order to gain a tactical advantage over the defendants." See also Fitzpatrick v. Crist (1974), 165Mont. 382, 528 P.2d 1322, involving a four-month delay in appointment of counsel. The wisdom of the Supreme Court's instruction that each

case be considered on an "ad hoc" basis becomes apparent at this point. The Court was undoubtedly strongly influenced by the disqualification of Judge Allen after sevenmonthsand held it was deliberate togain advantage. We have no such allegationhere, not even willful negligence, and a clearly distinguishable factual situation. Assertion of the right. In discussing the third factor 

## -- inthe Barker balancing test, the Supreme Court stated: "Whether and how a defendant asserts his right is closely related to the other factorswe have mentioned. The strength of his efforts

### willbe affected by the length of the delay, to some extent by the reason for the delay, and most particularly by thepersonal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is tocomplain. The defendant's assertion of his speedy trialright, then, isentitled to strong evidentiary weight indetermining whether the defendant isbeing deprived of the right. We emphasize that failure to assert the right

### willmake it difficult for a defendant toprove that he 

### was denied a speedy trial." Barker, 407 U.S. at531-32, 92 S.Ct. at 2192-2193, 33 L Ed 2d at117-18. In the instant case, defendant moved for dismissal for lack of speedy trialprior to the trial's commencement. We cannot ignore the fact, however, that atthe 

### timedefendant submitted hismotion he had already indicated toJudge Bradford that he intended tocallmore than 120 witnesses and that he feltthe trialwould lasttwo months. Atvarious times over the next severalmonths defendant asserted time and again thatbecause of the complexity of the case, he could not possibly be prepared todefend himself. This factor weighs heavily against any prejudice inthe time lapsebetween filingand trial and gives substance tothe Barker comment that speedy trial denial is not per 

### -- se prejudicial todefendant's ability to defend himself. Prejudice. The prejudice factor is analyzed as follows:"Prejudice, of course, should be assessed inthe lightof the interests of defendants which the speedy trialright

### was designed toprotect. ThisCourt has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) tominimize anxiety and concern of the accused; and (iii) to

### limitthe possibility that the defense willbe impaired. Of these, themost serious is the 

### last, because the inabilityof a defendant adequately toprepare his case skews the fairnessof the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is alsoprejudice if defense 

### witnesses areunable torecall accurately events of the distantpast. Loss of memory, however, is not always reflected inthe record because what has been forgotten can rarely be shown." Barker, 407 U.S. at532, 92 S.Ct. at2193, 33 L Ed 2d at 118. Defendant lists fiveways inwhich he felthe was prejudiced by the delay: "(1) economic hardship; (2) death of witnesses; (3) pre-trial publicity of a long duration; (4) difficulty of now finding and interviewing the State's witnesses; and (5) emotional 

### stress and strain.

### " The instant case

### was not the only case defendant 

### was defending atthis 

### time. Aside from disbarment proceedings before the Commission on Practice and this Court, defendant

was involved inthree other criminal cases and one civil

case. The emotional 

### stress and strainand the economic hardship and consumption of 

### timewas toa large extent commingled with these other proceedings and it 

### isdifficult to assess faultby any precisemeans. Defendant contends that fivedefense witnesses had died, but there was no credible evidence given as towhen they died, what their testimony would have been, orwhether it went to one or more counts. A 

### mere self-serving statement does not meet the test required by Barker which demands a showing of prejudice, not merely a self-serving assertion that theremay have been some prejudice. Application. Continuing from Barker: "We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the rightof speedy trial. Rather, they arerelated factors and must be considered together with such other circumstances asmay be relevant. In sum, these factors have no talismanic qualities; courts must still engage ina difficult and sensitive balancing process." Barker, 407 U.S. at 533, 92 S.Ct. at2193, 33 L Ed 2d at118. The Court, inapplying the test to the five-year delay in Barker found certaindeficiencies present but went on to say: "Two counterbalancing factors, however, outweigh these deficiencies. The first

### is thatprejudice 

### wasminimal. "More important than the absence of seriousprejudice, 

### is the factthatBarker did notwant a speedy trial." Barker, 407 U.S. at534, 92 S.Ct. at2194, 33 L Ed 2d at119. 

# ".



# . . barring extraordinary circumstances, 

### we would bereluctant indeed torule that a defendant was denied this constitutionalrighton a record that strongly indicates, asdoes this one, that the defendant did notwant a speedy trial." Barker, 407 U.S. at536, 92 S.Ct. at2195, 33 L Ed 2d at120. In this case, asinBarker, we cannot find a showing of sufficient actualprejudice toinvoke the extremely harsh remedy of dismissal of the cause. In addition, the record reflects that the speedy trialobjections

### were again commingled with defendant periodically claiming he could not be ready for trialup tothe day the trial commenced, indicating, of course, a need for additional time. With the recognition that the defendant has the right to submit

numerous and complex procedural motions prior to trial, the resulting delays cannot now be charged exclusively tothe State. Much of the complexity and delay of this case is the result of defendant's defense and he cannot now use the delay that resulted tohis advantage with respect to the speedy trialwithout an actual showing of prejudice. We cannot find inthisrecord a genuine desire for a speedytrial, which makes any prejudice minimal. As a result, prejudice 

### was asserted but never demonstrated and there are

no other extraordinary circumstances tocompel this Court torule thatdefendant 

### was denied his constitutional right to a speedy trial.

EFFECTIVE ASSISTANCE 

### - OF COUNSEL In hisbrief tothisCourt, defendant states that the 

# ".

. . issue raised here isnot that the trialcounsel 

### were incompetent due totheir lack of skillsor actions attrial, but that they 

### were rendered impotent and ineffective by the State's denial tothem of adequate funds toprepare the defense up until a point atwhich they had inadequate time toprepare. I' Defendant's argument isdivided into three parts. First, he claims therewas a "chilling effect" created by theDistrict Court's failure toprovide funds 

### - inadvance for appointed defense counsel. Second, he argues that by the 

### time funds became available, any delays having been the result of the State's resistance tocertainmotions, there

was inadequate time inwhich toprepare a defense. Thus the Statehad allegedlyput the defense inthe awkward position of either having togo to trial unprepared, or, having to

move for a continuance, sacrificing their speedy trial claim. Third, defendant complains that the District Court failed toprovide him with an investigator tomeet the effect of themanpower employed by theAttorney General in theprosecution of this case. Defendant does not argue that the Statemust supply an investigator inallcases but that it should have inthis 

### case because of the complexity of the case and the number of witnesses listed on the State's Information. here was never any question that defendant's appointed counsel would be compensated; the problem arosewith respect towhether they 

### were entitled tobe compensated inadvance. The record does not indicate that defendant ever requested a continuance because of the claimed problem of preparation and hence he is ina poor position to allegeprejudice. Finally, the appointment of 

### - two counsel for defendant obviated any need for an investigator for the general preparation for trial and inaddition the court did authorize the hiring of an investigator inAlaska who worked for the defense. Defendant's retained counsel moved towithdraw from the

case inNovember 1975. The District Court subsequently appointed counsel for defendant inJanuary 1976. The first real problem with appointment of counsel arose on March 31, 1976, when the Statemoved to set aside the District Court's March 23 order for interimpayment of counsel in the amount of $gr068.74. The State argued that the payment was excessive and that the county, as opposed to the State, was liable for payment of defense counsel. The matter 

### was appealed by the State tothis Court, Application of Barron (1976), 170Mont. 218, 552 P.2d 70. This Court affirmed the District Court's ruling and remanded the case for an evidentiary hearing todetermine the amount of money due appointed counsel. The decisionwas issued July 9, 1976. A hearing was held on August 25 which resulted inthe District Court's ordered payment of $5000 and $9,760.43 todefense counsel for their fees and expenses. By September 15, defendant's counsel had stillnot received theirmoney and moved the District Court on that day topermit their withdrawal as counsel and todismiss the action on the ground ofmisconduct on thepart of theAttorney General. The motion topermit their withdrawal was based on disciplinary rule DR2-110 

### (b)(2) addressing mandatory withdrawal when an attorney cannot continue his employment without violating another disciplinary rule, inthis case DR6-101: "Failure to

### act competently: (A) A lawyer shall not: (2) Handle a legal 

### matter without preparation adequate to the circumstances

# . " The motion was submitted 21 days prior to the day scheduled for trial, and defense counsel received their funds the following day. The problem with defendant's argument concerning this issue is thathe has made no showing that the alleged lack of preparation on thepart of his appointed counsel prejudiced him inany way. In fact, defendant asks us topresume his counsel were ineffective because they were not compensated far inadvance. Defendant does not reveal what his counsel had been able toaccomplish during the time they had been on his case. We can only speculate as towhether any prejudice resulted due toalleged lack of preparation on the part of defendant's counsel. Again, without a motion for continuance on these grounds and without any showing of actualprejudice, 

### we cannot presume that counsel 

### were thereby rendered ineffective.

PUBLICITY AND 

## -- FAIR TRIAL Statewide publicity, especially concentrated inGreat Falls, accompanied the prosecution of this case ateach stage. On July 29, 1975, defendant moved the District Court todismiss the charges or, inthe alternative, continue the date for trial due toextensive pretrial publicity. Thecourt-deniedthemotion. Defendant again moved for dismissal on December 29, 1975. The court denied thismotion

as

### well. ~efendant again raised the issue of pretrialpublicity after the swearing of the jury athis trialon October 18, 1976. By that timedefendant had become the objectof heavy statewidepublicity because of a 

### trial inwhich he had been charged with and acquitted of solicitingpersons toassassinatetheAttorney General. Also, a statewide general election was imminent inwhich,theAttorney General was a gubernatorial candidate. The publicity continued during the trial of the 

### case. It culminated inthe door-to-door distribution of a political newsletter entitled the "Montana Gazette" inwhich defendant's name was mentioned. On October 27, 1976, defendant filed a motion for a mistrialbecause of the publicity. Defendant argues that

### we should presume, under the factsof thiscase, that themid-trial publicity reached the nonsequestered jury. He goes on toargue thatthe trial court should have examined the jury concerning (1)their contact with thematerial and (2) its prejudicial effect upon them. Throughout his argument, it is theAttorney General's participation inthe publicity thatdefendant objects tomost strongly. Again, 

### we have a sword that cutsboth ways. The record is clear and evidence substantial regarding defendant's own attempt touse themedia tohis advantage aswell as his failure tomove for change of venue on thebasis of the publicity. For example, on October 27, 1976, defendant moved tohold prosecutor Gilbertincontempt partially on the grounds that the prosecution had been seen talking toreporters. Coincidentally, the Great Falls Tribune had predicted this action and stated that defendant had contacted the reporter. The theatrics reflected inthe record by defendant is not indicative of conduct tending to show genuine concern over the amount of pretrial and trialpublicity and when reported cannot be condemned. Additionally, themotion was not accompanied by an affidavit leaving the court, again, no facts upon which it could act. The court did state that: "The courthas observed and read the publication, atleast inthe Great Falls Tribune, and they have seemed straightforward reporting, nothing 

### else. And how that is ever going tobe prejudicial isbeyond me." Beyond that, defendant's argument that the trial court should have conducted a poll of the jury todetermine whether the members had seen a copy of the "Montana Gazette" is not properly before this Court inasmuch as defendant made no 

### - motion for thepoll inthe 

### trial court and 

### raises the issue for the first

### timeinthis Court. Section 95-1710, R.C.M. 1947, now section 46-13-203 MCA, 

### sets out theprocedure toobtain relief in a proper

case of untoward publicity: "(a)The defendant or the prosecution may move for a change of place of trialon the ground that there exists inthe county inwhich the charge is pending such prejudice that 

### a fair trial cannot be had in such county. The motion shallbe made 

### atleast fifteen (15) days prior to trial, unless, for good cause shown, 

### itmay be made thereafter. "(b) The motion shall be inwriting and supported by affidavitwhich shall statefacts showing the nature of theprejudice alleged. The defendant or the statemay filecounteraffidavits. The court shall conduct a hearing and determine the meritsof themotion. 

### "(c) If the courtdetermines that there exists inthe county where the prosecution 

### ispending such prejudice that a fair trialcannot be had it shall transfer the cause toany other court of competent jurisdiction inany county where a fair trialmay be had."Unlike the cases cited by defendant, this case did not spawn editorials crying for defendant's conviction. Rather, defendant has simply provided this Court with his statement of inferences and conclusions and these are not enough. See Statev. Davis (1921), 60 Mont. 426, 431, 199 P. 421, 422. In State

### v. Lewis (1976), 169 Mont. 290, 297, 546 P.2d 518, 522, 

### we quoted with approval the following excerpt from Irvin v. Dowd (1961), 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L Ed 2d 751, 756. It seems especially appropriate inthe instant case: "Itis not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of thepublic in the vicinity, and scarcely any of those best qualified to serve asjurors 

### willnot have formed some impression or opinion as to the

### meritsof the case. This isparticularly true incriminal cases. To hold that the

### mere existence of any preconceived notion 

### as to the g u i l t o r innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartialitywould be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdictbased on the evidence presented incourt." As set forth above, defendant has failed to

### meethis burden of showing the nature of the publicity, the effect of thepublicity, and the necessity of such a drastic remedy. He has also failed to

### meetthe procedural requirements of moving for a change of venue and submitting an affidavit containing specific allegations as tothe prejudicial nature of the publicity.

PROBABLE CAUSE FOR FILING INFORMATION On September 16, 1974, the State filed an affidavitin support of a motion for leave tofilean Information againstdefendant. The affidavit listed the alleged victims in alphabetical order. Defendant 

### sets forth the charges inhis summary inthreebasic categories. The Statecombines defendant's firsttwo categories, arguing that the existence

or nonexistence of an accounting ineach case 

### is of little

or no relevance indiscussion probable cause. "(1) A settlementwas made by the compensation insuror, the settlement check 

### was deposited into a bank account, some time thereafter, ranging from days toyears, the alleged victim received a check for their portion of the settlementbut received no accounting from Mr. Bretz as to the amount and disposition of the total settlement. (This fact situation is applicable to the following alleged victims--Aker, Baran, DuBois, Early, Hill, Springer, Stroop and Weisgerber.) 

### "(2) A settlement

### wasmade by the compensation insuror, the settlement check was deposited into a bank account, some time thereafter, ranging up to a few years, the alleged victim received a check for their portion of the settlement along with an accounting from Bretz as tothe amount and disposition of the total settlement. (This fact situation is applicable tothe following alleged victims--Curtissf Gaines, Gilbert, Guszregan, Hall, Lavalley, McMaster, Pohjola, Swims Under and Wesland.) 

### "(3) A settlement

### wasmade by the compensation insuror, the settlement check was deposited into a bank account and the alleged victim was never contacted by Mr. Bretz and, tothe date of the affidavit, had not received any portion of the settlement. (This fact situation is applicable to the following alleged victims--Barry, Fischer, Gardipee, Morris and Tannehill.)" In his pretrial motion filed July 29, 1975, defendant moved toquash the Information on the grounds that (1)there

was an abuse of probable cause 

### set forth inthe affidavit to justify filing of the Information; and (2) no crime or crimeswere stated inthe facts alleged inthe affidavit. Defendant again raised this issue on December 29, 1975, in another pretrial motion. Defendant argues that the factlacking inthe affidavit is the showing of intent requisite 

### to prove larceny. Hethen argues that the DistrictCourt erred inallowing the State tofilethe Information where the supporting affidavit failed toestablish probable cause. The basic crime with which defendant was charged and upon which he 

### was tried 

### was larceny by bailee as setforth in section 94-2701, R.C.M. 1947: "Every person who, with the intent todeprive or defraud the true owner of his property, or of the use and benefit thereof, or toappropriate the same to the use of the taker, or of any other person either--

"2. Having inhispossession, custody or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association, or corporation, or asa public officer, or as a person authorized by agreement or by competent authority tohold, or take such possession, custody, or control, any money, property, evidence of debt, or contract, articleof value of any nature, or thing inaction or possession, appropriates the 

### same tohis own use, or that of any other person other than the true owner, or person entitled to the benefit thereof, steals such property and isguilty of larceny." Section 95-1301, R.C.M. 1947, now section 46-11-201 MCA, provides inpertinent part: 

### "(a) The county attorney may apply directly to the district court for permission to filean information against a named defendant. The applicationmust be by affidavit supported by such evidence as thejudge may require. If it appears that there isprobable cause 

### to believe that an offense has been committed by the defendant the judge shall grant leave to filethe information, otherwise the application shall be denied." The rationale of probable cause for filing an information is the same asprobable cause for arrest. State ex rel. Pinsoneault v. DistrictCourt (1965), 145Mont. 233,

"Probable cause is the knowledge of facts, actual or apparent, strong enough tojustify a reasonable man inthebelief that he has lawful grounds for prosecuting the defendant inthe manner complained of." Pinsoneault, 145Mont. at 239, 400 P.2d at 272.Any determinationwith respect to the existence of probable cause for the filingof an Information must be made

on a case-by-case basis viewing the peculiarities of the particular case. In addition, as the 

### term "probable cause" implies, it is a concept necessarily concerned with probabilities. The facts alleged in the Information charging defendant with a number of offenses are sufficient to establishprobable cause. In so finding, 

### we emphasize the improbability that the facts alleged resulted from innocent bookkeeping errors or clericalmistakes. Viewing the Information as a whole, the DistrictCourt did not err in concluding that probable cause existed for directly filing the Information.

DOUBLE JEOPARDY 

## -- COLLATERAL ESTOPPEL Defendant was alsoa defendant inStatev. Cline (1976), 170 Mont. 520, 555 P.2d 724, referred toby the parties as theWampole case. Defendant claims that that

case could and should have been joined with the instant case



### as being part of the "same transaction" as defined in section 95-1711(1)(a)(ii),R.C.M. 1947, now section 46-11-501 MCA: "(1) (a) The term 'same transaction' includes conduct consisting of:

"(ii)a series 

## --- of actsor omissions which are motivated by

## a common purpose

# or plan and which result 

## -- inthe repeated commission of the same 

## --- offense or affect 

## -- the same person orpersons or 

### - the thereof.

### " (Emphasisadded.) Defendant argues that the Statemerely used theWampole

case as a "dry run" to test their prosecution success. Defendant then argues that thepractical effectof multipleprosecutions was to (1)contribute tohis eventual indigency; (2) expand press coverage; and, (3) provide practice for the prosecution. We note that the Information filed inCascade County named different defendants than the Information filed in Lewis and Clark County. In addition, the Lewis and Clark County Information 

### was filed subsequent to that filed in Cascade County. Both parties citeAshe v. Swenson (1970), 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L Ed 2d 469, 475, for the definition of "collateral estoppel": "Itmeans simply thatwhen an issue of ultimate facthas once been determined by a valid and finaljudgment, that issue cannot again be litigated between the same parties inany future law suit.

### " (Emphasis added.) The instant case involves no issue of ultimate factwhich

was twice litigated. If any valid objection existed in this area, it would have been proper tomake the objection upon the filing of the second Information inLewis and Clark County.

JUROR'S INDEPENDENT KNOWLEDGE Juror Thomas Clary was a Great Falls attorney who had been asked toact as a special prosecutor tobring disbarment proceedings against another man under a Workmen's Compensation indictment. In drafting the pleadings, he had used defendant's disbarment as a model. Juror Clary had stated during voir dire that he had no knowledge of the particular counts defendant faced. But defendant's disbarment dealt atlength with the facts of the Gilbert, Barry, Guszregan, Hall and Morris counts of this criminal 

### case. Defendant argues that under the circumstances of this case, Clary's knowledge requires reversal of the conviction.Atthe conclusion of the trialJuror Clary 

### metwith the judge and counsel inchambers and told them what he knew. Defendant's attorneymade no objection atthat 

### timeeven though there were three alternate jurors available. The defense failed to

### meetitsresponsibility tothe court by 

### its failure to properly object and thereby give the court an opportunity toremedy any alleged defects thatmay have existed by replacing Juror Clary with one of the alternate jurors. Section 95-2404(b), R.C.M. 1947, now section 46-20- 104 MCA, provides: "(b)Upon appeal from 

### a judgment, the courtmay review the verdict or decision, and any order or decision objected towhich involves themerits, or necessarily affects the judgment." (Emphasis added.)

CRUEL AND UNUSUAL PUNISHMENT Defendant 

### was convicted of eighteen counts inthis case and sentenced on sixteen. The court imposed the maximum 

### termof fourteen years for each of the sixteen convictions and divided the convictions into four groups of four convictions each. The sentences within each group 

### were tobe served concurrently, but the four groups of ,convictions

### were ordered torun consecutively resulting ina 56 year prison 

### term.In imposing sentence, the DistrictCourt stated: "NOW,the length of the sentence that thisCourt imposes cannot be understood by someone who has not heard the evidence that has been presented in this case. NOW, it is true the defendant has not committed a violent crime, but hismethod of operation is deceit, hisplaying and praying upon the weak and the poor, knowing their condition, is more reprehensible, inthe view of this Court, than many crimes of violence. I could review some of the cases. The Hardy case stands out, and a number of others, which areunbelievable. It is unbelievable that an attorney, admitted to thepractice of 

### law, would engage inthe type of activities thatMr. Bretz engaged in. I don't want to dramatize it, because the cases speak for themselves, and I 

### refer the Sentence Review Board to the facts of those cases. Now, inthe eyes of many, or at

### least some, the legal profession has been branded and stigmatized by Bretz. He, of course, has been disbarred, no longer can practice, but 

### I'm taking this into account also in the imposition of sentence. Now, during the trial Mr. Bretz, through the news media, made certain public statements that demonstrate an unbelievable arrogance and lack of conscience on his part. Now one thing he referred tois a reversal of the

### Wampole case by the Federal Appeals Court. That 

### reversal apparently clears his conscience. He also, inthat same news 

### item, critized [sic] the State for wasting money inthe prosecution of these Workmen's Compensation cases, saying thatonly one man has spent sixty eight days inprison for allthat has been done. I take this intonote, and perhaps I willcorrect that imbalance. He also states thathe has many grounds for appeal, and thatultimately there

### willbe a reversal, as there 

### was intheWampole 

### case. This may be so. Hisconscience may be clear, if that sohappens. But the harsh reality of his greed to thepeople who have been victimized 

### willnever be erased by any reversal." Defendant 

### was sentenced toone-fourth of themaximum sentence allowed by law for the offenses of which he 

### was convicted. The general rule is that "a sentencewithin the maximum authorized by statute 

### is not cruel and unusual



# . . ." Statev. Karanthos (1972), 158Mont. 461, 468, 493 P.2d 326, 330. Considering the number of counts of which defendant 

### was convicted, the unbelievable arrogance and the lack of any showing of remorse by defendant and the sentence being 25 percent only of that allowed by 

### law and considering all the circumstances of the case, the discretion of the trial judge cannot be called intoquestion.

CONDITIONING SUSPENSION 

### - ON RESTITUTION The District Court included the following conditions in the judgment and order of commitment:"ItisFurther Ordered, Adjudged and Decreed that the last 30 years of the 56 year sentence herein imposed be suspended upon the following conditions. "1. That the defendant pay into district court on orbefore December 13, 1977, an amount sufficient topay allvictims of the offenses for the full amount of settlement awarded by the IAB/WCD including Dennis J. Aker, Stanley C. Gaines and Eugene R. Hall. "2. As a further penalty there shall be no deduction for attorney fees or costs claimed by the defendant. "3. Atthis 

### time the Court is advised that after allowance for payments made by the defendant, the total sum of $42,259.68 remains owing to the claimants alleged tohave been defrauded. "4. Should the defendant notmake fullpayment within the 

### timeprescribed, the defendant 

### will serve the sentences hereinabove imposed." Defendant argues that these conditions 

### are improper and amount to cruel and unusual punishment for two reasons. First, the DistrictCourt included the amount of the settlement on three counts upon which he was acquitted. Second, he argues this amounted toan excessive fine and was unconstitutionally cruel and unusual punishment considering defendant's indigent status. Section 95-2206, R.C.M. 1947, now section 46-18-201 MCA, provides inpertinentpart: "(1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the courtmay:



### "(b) suspend execution of sentence up to the maximum sentence allowed for the particular offense. The sentencing judge may impose on the defendant any reasonable restrictions during the period of suspended sentence. Such reasonable restrictions may include:



### "(iv) restitution;"(d) commit the defendant to a correctional institution with orwithout a fine as provided by law for the offense; 

### "(e) impose any combination of subsections 

### (1)(b)

## , (1) (c) I and (1) (dl

# ." When thejudgment is entered on the verdict of guilty and the sentence is imposed, the criminal proceeding is at

an end. Any mitigation by suspension, etc., is the beginning of the probation and rehabilitation process, and the defendant atthis stageof theproceeding is not possessed of full citizenship and not entitled toallof the constitutionalrights of a freeman. Wehave 

### metthis problem inrecent cases and have held as have other jursidictions and the United States Supreme Court, see Statev. May (l969), 93 Idaho 343, 461 P.2d 126; Fuller v. Oregon (19741, 417 U.S. 40, 94 S.Ct. 2116, 40 L Ed 2d 642, that restitution, particularly inconnection with theft-type convictions, is 

### a proper condition for suspension orprobation. A consideration of the entire record inthis case demonstrates that the trialjudge has been more than fair and his granting defendant an opportunity for suspension is an actof mercy he 

### was not required to extend to this defendant.

SENTENCING HEARING After the verdict had been returned by the jury on December 

### 1, 1976, the court stated: "NOW,inview of the circumstances peculiar to this case, the Court deems itself well enough advised to impose penalty without calling for a pre-sentence investigation and report. I am going to set next Tuesday, December the 7th, as the timefor sentencing, atthe hour of 11:OO o'clock A.M. "Now, atthat 

### timeCounsel for the Defense may present any matters inmitigation of punishment if they wish it atthat 

### time."On December 3, 1976, the prosecutors for the State sent

a letter toJudge Martin setting forth their views with respect todefendant's sentencing. They attached a copy of

a letter from the daughter of one of the victims in the case, which had been sent to a judge inCalifornia inanother matter. Because of illness, defendant's sentencing



### was delayed until December 13. Atthat 

### time, defense counsel stated that, inhisopinion, inthe absence of a presentence investigation, "the Court lack[ed] the proper necessary information topass judgment inthismatter." The State answered that, among other things, the court had had

access toa copy of another presentence investigation prepared inanother trial of defendant. The court said that it had looked atthe report, found that itwas not helpful, and then detailed for the record the reasons for the sentence it

was about to impose. Defendant objects totwo parts of this procedure. First, he argues that the DistrictCourt should have ordered



### a presentence investigation and that the prior document was not an adequate substitute. Citing Statev. Orsborn (1976), 170Mont. 480, 555 P.2d 509, defendant argues that he should have been advised of the contents of the presentence report from the prior trial and given the opportunity torebut any misinformation itmight have contained. Next, he argues that the State should have produced for cross-examination the victim's daughter who had written the letter the prosecutors presented tothe court. Failure todo this, says defendant, was a denial of due process. Section 95-2203, R.C.M. 1947, now section 46-18-111 MCA, provides inpertinent part:"No defendant convicted of a crime which may 

### resultincommitment for one (1)year ormore in the stateprison, shallbe sentenced or otherwise disposed of before a written report of investigation by a probation officer 

### ispresented toand considered by the court, unless the courtdeems such report unnecessary." (Emphasis added.) The obvious import of this statute is toprovide a means by which a court can fashion a punishment which willfitnot only the circumstances of the crime but also the individual characteristics of the person convicted. The court in the instant case, because of its familiarity with defendant and his crimes was ina position to sentence without having a presentence investigation. Defendant had seen a copy of the prior presentence investigation and had the opportunity to dispute its contents but he did not. Beyond that, the court indicated that it had not been helpful and the court's reliance on it inany way is extremely doubtful. The District Court detailed at some length 

### itsreasons for the sentence imposed on defendant and he had the opportunity torespond to those reasons atthat timewith any mitigating factors he could find. The same is true of the letter sent toJudge Martin by theprosecutors with 

### its attachment. Defendant was furnished with a copy of the letters and with theopportunity tomitigate any effect he felt itmight have. The letter from the daughter of one of the victims was not mentioned by thejudge as a contributing factor inhis sentencing decision and the particular count towhich it related did not result inan enhanced punishment.

ADMISSION 

## - OF EXHIBITS The State introduced the filesof the Industrial Accident Board Worker's Compensation Division as Exhibit No. 1under the Business Records asEvidence Act, sections 93-801- 1through 93-801-6, R.C.M. 1947. Each fileconsisted primarily of the following documents: 1. Settlement draft; 2. Petition for compromise settlement; 3. Carden settlement memorandum; 4. Appointment of Attorney inFact submitted by defendant;5. Medical reports; 6. Affidavit in support of lump 

### sum settlement; 7. Correspondence between the IAB and defendant; 8. Order approving settlement. Section 93-801-2, R.C.M. 1947, provides: "A record of an act, condition or event, shall, in so far asrelevant, be competent evidence if the custodian or other qualified witness testifies to

### its identity and mode of itspreparation, and'if itwas made inthe regular course of business, ator near the 

### timeof the act, condition or event, and if, in the opinion of the court, the sources of information, method and timeof preparation were such as tojustify admission." Defendant argues that the State

### was required toproduce evidence of the source, mode, and 

### timeof preparation of the IAB fileexhibits. In fact, the testimony of Albert G. Pillen, who was the claims manager for the State Insurance Fund atthe 

### timeof most of the events inquestion, provided this foundation. Defendant, though, claims that Pillen could not lay the proper foundation because he had not examined the individual documents inthe file. We find that Pillenwas a qualified witness and that a qualified witness under circumstances like those presented inthis case need not have examined every document in a file. Furthermore, again defendant has failed todemonstrate that any of the evidence presented isnot trustworthy

# .Defendant next addresses the admission into evidence of certain handwriting examples of defendant's three secretaries. These included abstracts of vehicle 

### titles, driver's license applications, notary public records, and voter registration cards. Defendant objected to the introduction of these exhibits because there was no testimony that the signatures on the documents 

### were authentic. The purpose for which the signatures

### were introduced was for comparison with other questioned signatures. Defendant has never alleged that the signatures 

### are false. The signatures were properly admitted intoevidence under the Public Records Exception to the Hearsay Rule, sections 93-901-1 through 93-901-5, R.C.M. 1947. Each of the records iskept by an official 

### state or county agency for the benefit of the public. he fact that

a number of signatures were introduced helped toinsure their authenticity.

PROOF 

### - OF ELEMENTS 

### - OF PREPARING FALSE EVIDENCE Defendant argues that the State failed toprove the two counts of preparing falseevidence. Count VIIalleged that defendant's preparation of petitions for lump sum and compromise settlements, submitted tothe IAB/WCD in the Donald Barry case after Barry had died violated section 94-1703, R.C.M. 1947. Count LI alleged similar circumstances with respect toEarl Tannehill, who was alsodead. Defendant contends that the State failed toprove the following material allegations: "A. That the documents were intended 'as evidence.' "B. That the documents produced were of the type intended tobe covered by the criminal statute. "C. That the documents were produced ina trial, proceeding or inquiry authorized by law. "D. That the documents 

### were prepared inCascade County, the venue of the trial."Section 94-1703, R.C.M. 1947, provides asfollows: "Every person guilty of preparing any false or antedated book, paper, record, instrument in

### writing, or other

### matter or thing, with intent toproduce or allow it tobe produced for any fraudulent or deceitful purpose, asgenuine 

### or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of a felony." The elements of the offense of preparing false evidence which wererequired tobe proved inthe instant case are (1) preparation of a falsereport; (2) with intent toproduce it for any fraudulent or deceitful purpose, as true; (3) upon any inquiry authorized by 

### law. Here, the petitions presupposed live claimants since the right to compensation

ceases atdeath. Intent is a factual question for the jury, the fraudulentpurpose being toobtainmoney knowing he 

### was not entitled to it. The petitions 

### were 

### a statutory prerequisite tothe exercise of the board's discretion in awarding lump sum or compromise settlements. See section 92-715, R.C.M. 1947, now section 39-71-741 MCA. With respect tovenue, we recognize thatvenue must be proven in a criminal case beyond a reasonable doubt. State

v. Williams (1949), 122 Mont. 279, 202 P.2d 245. In this case, sufficient evidence 

### waspresented from which the jury could determine that the Stateproved venue beyond a reasonable doubt. Both petitions for lump 

### sum settlement contained defendant's signature followed by his Great Falls address. The petitions for compromise settlementresulted inchecks being sent todefendant inGreat Falls.

LARCENY 

## - BY BAILEE PROOF In the amended Information, with the exception of the Barry and Tannehill counts, defendant was charged with alternative counts of Larceny by Trick and Device, section94-2701(1), 

### R.C.M. 1947, and Larceny by Bailee, section 94- 2701(2), R.C.M. 1947. The State chose togo to trial on the Larceny by Bailee charges and dismissed the alternate counts of Larceny by Trick and Device. Section 94-2701(2), 

### R.C.M. 1947, provides inpertinent part:"Larceny defined. Every person who, with the intent to deprive or defraud the 

### true owner of his property, or of the use and benefit thereof, or to appropriate the 

### same to the use of the taker, or of any other person 

# . . 

# .

"2. Having inhis possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person 

# . 

# . . or as a person authorized by agreement or by competent authority to hold, or take such possession, custody, or control, any money, property 

# . . . appropriates the 

### same tohis own use, or that of any other person other than the true owner, or person entitled tothe benefit thereof, steals such property and isguilty of larceny." Defendant argues that the State failed toprove three elements of the 

### crime charged. First, he argues that the State failed toprove that defendant was an "attorney." Second, he argues that the State's proof negated the requisite element of "intent topermanently deprive" the owner of funds. Finally, he argues that the Stateoffered proof which negated the element of authority under which defendant

was holding the funds. Initially, 

### we note that the function of this Court in reviewing a jury verdict is todetermine if the verdict 

### is supported by substantial evidence. Statev. Pepperling (1974), 166Mont. 293, 533 P.2d 283. 

# ".



# . . this court is not a 

### trier of fact. 

# . . In view of the presumption of innocence at the trial, the jury must have been instructed to that effect, but on appeal after conviction the rule changes. Then, if the record shows any substantial evidence to support the judgment, the presumption 

### is infavor of such judgment." Statev. Stoddard (1966), 147 Mont. 402, 408. 412 P.2d 827, 831.See also Statev. Cor (1964), 144Mont, 323, 396 P.2d 86. he record inthis case amply demonstrates that defendant intended topermanently deprive his own injured clients of their money. Exhibits presented attrial showed low deposits inbank accounts maintained by defendant intowhich the settlement checks from the clientswere deposited. In each case, itwas demonstrated that there was atleastone point in

### timewhen defendant could not possibly have distributed the client's share of themoney to the client. As applied to the charges inthis 

### case, section 94- 2701(2) requires the State toprove that defendant took possession of the funds either as an attorney 

### - or as a person authorized by agreement orcompetent authority. With 

### respect toeach count, the Stateneed prove one or the other; it need not prove both. In each case presented here, defendant received settlement money because he had been retained as an attorney; he represented himself as an attorney; dealtwith the IAB as the client's attorney; wrote 

### letters, received correspondence, filed documents with the IAB, and received his client's money, allasan attorney. He cannot now claim that he

was not an attorney, after a jury, presented with this evidence, found that he was. The essence of defendant's next argument is that the State attempted toprove that defendant sought out his clientswith the intent toultimately steal from them. This prior intent is not consistentwith the intent element present inthe crime of Larceny by Bailee where, defendant argues, the intent to steal arises after the point in time when the embezzler gains control of the funds.Here, a fiduciary relationship was created when defendant acted on behalf of his clients as their attorney. Defendant is estopped, under the facts of this case, from asserting as a defense that he harbored a felonious intent prior to the creation of the fiduciary relationship. State

v. Gould (1932), 329 Mo. 828, 46 S.W.2d 886. Furthermore, the element of intent and the time of 

### its formation is a question for the jury, a question which was resolved against defendant. Therefore, 

### we find that there is substantial evidence inthe record to support the jury's determination that defendant was guilty of the crime of Larceny by Bailee.

OVERZEALOUS PROSECUTION Defendant argues that the cumulative effect of a series of actsby the prosecution denied him his basic constitutional right to a fair trial. He lists six specific acts: 1. Filing of multiple counts; 2. Participation inpretrial publicity; 3. Resistance of payment of appointed counsel; 4. Dismissal and refiling of charges without notice or opportunity for hearing being afforded to the defendant; 5. Demand of document from the defense inviolation of defendant's Fifth Amendment right to silence; and, 6. State's withholding of names of witnesses. We have previously addressed the underlying factual circumstances of the firstthree points made by defendant. Number 4 refers to the dismissal of the July 30, 1974, Information. Defendant states that if he "had been allowed to appear, this casemight wellhave been prosecuted on a shorter, original 29-count Information with a resulting speedup in the proceedings, simplification of the issues and minimizing of publicity.

### "ÿ umber 5 refers to an exchange appearing on pages 2346 and 2347 of the transcript. Prosecutor Gilbert was questioning witness Earley about a visithe had received from defense counsel Connor. Gilbert asked Earley if Connor had shown him a letter 

### atthat time. Earley answered affirmatively and Gilbert then asked him if a 

### letter he was holding

was the 

### same 

### letter. Earley said it

### was not and Gilbert then asked Connor tocheck his filesfor the letter. After

a brief exchange, the two attorneys approached the bench for

some discussion off the record. Defense counsel then moved for a mistrial due to this request, citing it asviolative of the FifthAmendment guarantee that a defendant cannot be compelled to furnish evidence against himself. Number 6 refers tothe fact that the Statewas permitted toadd certain witnesses to its listof witnesses following voir dire. Three of these witnesses were ultimately called to the stand inthe course of the trial. Addressing this last issue first, 

### we note that one of the threewitnesses who could have possibly prejudiced defendant's case was a witness defendant had listed as his

own. Aside from this, the DistrictCourt stated atthe time thewitnesses were listed that he would grant a continuance

on defendant's request prior to the examination of these witnesses if defense counsel needed extra 

### timeto interview the witnesses and develop their questions. This opportunity cured any prejudice which might have otherwise developed. Concerning the alleged violation of defendant's Fifth Amendment rights, we note that no objection was made on FifthAmendment grounds atthe timeof the incident. Moreover, the request was made of counsel and not of the defendant. ~eviewing the transcript

### we cannot discern how defen-dant could have been prejudiced by the exchange. Certainly it is not apparent from the record. In addition, the record filedwith thisCourt does not contain an objection by defendant with respect to the dismissal of the firstInformation and the filing of the second. Having previously discussed the firstthreematters with respect to other issues, we are leftwith the task of assessing the overall impact of these

### matters considered together. We find that the issuespresented here, if they

were tobe considered error, arenot of the quality tobe inany sense prejudicial.

DENIAL 

## - OF OPPORTUNITY 

### - TO PRESENT DEFENSE Defendant contends that certain alleged errors and

erroneous ruling attendant tothis case had the effectof violating his constitutional right "tohave compulsory process for obtaining witnesses inhis favor as guaranteed by the SixthAmendment to theUnited States Constitution and Article 11, Section 24 of theMontana Constitution of 1972." Hebreaks this assignment of error into five parts. 1. Failure topay appointed counsel; 2. Denial and quashing 

### of subpoenas without proper basis; 3. Refusal toallow inevidence of accountings submitted by defendant toan alleged victim; 4. The refusal to allow testimony as towork performed; 5. Having to clear out-of-state witnesses with the court and Statebefore obtaining subpoenas. Wehave previously discussed defendant's firstassignment of error inthisregard and found no showing of prejudice tohis defense.The denial and quashing of subpoenas mentioned refer to two incidents. The firstinvolved defendant's failure to obtain a a subpoena duces tecum commanding Mrs. Robert Morris, the wife of an alleged victim, tobring copies of the couple's Internal Revenue returns for a number of years. Defendant himself stated thepurpose for which he wished to subpoena the records: "Mrs. Morris 

### willbe a witness inthis case for the defendant, and thepurpose of this subpoena, Your Honor, it is going tobecome relevant in this case concerning the addresses and employers and earnings of thisparticular witness for the State. And the best evidence probably of the earnings, employer and addresses and so forth 

### willby the Internal Revenue records. If Mr. and Mrs. Morris have filed a joint return of course this information is there and Mrs. Morris can provide it. And it ismost relevant on this issue. This is one of themain parts of the Morris count.

### " The Stateobjected tothe granting of the subpoena on the grounds that it was not the best evidence and no need was shown for the records. The DistrictCourt, indenying the subpoena, stated that "[wlhen you establish a foundation and basis for it, then the court willlook atit." It is not

error torequire a proper foundation. A similar incident occurred concerning a subpoena by the defense of a representative of the CreditBureau. The CreditBureau moved toquash and the State supported the motion arguing that there was no foundation laid for the evidence tobe gained. After some argument, defense counsel Barron asked that thematter be postponed until a sufficient foundation was laid. The defense apparently did not pursue thismatter following that acquiescence. This specification requires no comment. Turning todefendant's next argument regarding evidence of accountings, it appears that the testimony of GregWarner, an attorney who represented victim Hortick ina lawsuit against defendant, was excluded by the trial court. ~efendant's offer of proof was tothe effect that Mr. Warner's testimony would show that defendant was holding the money openly under a claim of right. However, this purported good faithclaim tothe settlementwas notmade until nearly a year after the settlement had been obtained and only after a demand by the victim through his attorney had been made following Hortick's being contacted by the attorney general's office thus becoming aware of the settlement. As such, this evidence 

### was not relevant tohis defense of good faith. Next, defendant claims that he offered toprove that victim Hortick had been involved in criminal difficulties, that he had retained defendant todefend him, that defendant did some work inthismatter and was entitled to a fee. This feewas then claimed as an offsetagainst the Hortick settlement. But defendant attempted to introduce this testimony through a former deputy county attorney. Only Hortick's or defendant's testimony could have established that defendant had been hired by Hortick, that a fee agreement had been reached, thathe performed a certain amount of work, that he was therefore entitled toa fee and that, in fact, he retained a portion of Hortick's Workers' Compensation settlement for that purpose. Hortick did not testify that he had retained defendant inthematter and the defense did not examine him on that point. Defendant chose not to testify, and we are precluded from drawing any conclusions from that fact. However, inthe absence of the proper foundational testimony, the evidence was properly excluded.Finally, before obtaining subpoenas for out-of-state witnesses, the defense was required todemonstrate the materiality of the witness' testimony. The Statewas allowed tobe present during such demonstrations. Defendant argues that his defense was thereby revealed and prejudiced. This issue arises outof a list of out-of-state witnesses containing approximately 40 names submitted just two weeks before trial. The list included persons from Alaska, Nevada, Illinois, and West Germany. The purpose of the inquiry was todetermine whether these 

### were legitimate witnesses. Again, defendant has made no showing of prejudicewith respect tohis inability toobtain any of these witnesses. Without such a showing, there is no error.

TESTIMONY REGARDING ATTORNEY'S FEES These issues relate to testimony regarding reasonable attorney's fees. The firsttestimony which 

### isobjected to by defendant came from Bud Pillen, Bureau Chief of the State Insurance Fund. He testified that inhis observation attorneys regularly charged "twenty-five percent [of settlements] unless the casewent tohearing, and then itwas usually one-third." If it went tothe Supreme Court, possibly forty percent. Next, NeilKeefer, a Montana attorney specializing inWorkers' Compensation, testified that his normal fee to Workers' Compensation clientswas 25 percent. Defendant argues that this testimony should not have been admitted because it had nothing todo with the issue before the jury, whether defendant embezzled from the client. Atthe time therewas no statutory limiton Workers' Compensation fees. As a result, defendant claims this testimony's only effect

### was to "inflame the passions of the jury and confuse the true issues."Thereafter, defendant attempted topresent the testimony of James Walsh, Deputy County Attorney for Cascade County. Histestimony related tothe alleged representation of Donald Hortick inthe criminal 

### matter previously discussed. The testimony of witnesses Pillen and Keefer about the reasonableness of attorney fees 

### wasrelevant to the transactions inwhich no fee agreement wasmade between the client and Bretz. Keefer's testimony was primarily limited to the Stanley Gaines fileand defendant 

### was ultimately acquitted of the count. Beyond that, the purpose of expert testimony is to assistthe jury inmaking its determination; it does not 

### limitthejury's capacity todecide for itself. Since the statuteineffect atthe 

### timeprovided that an agreement as to attorney's fees could be implied, some standard by which the jury could determine what such an implied agreement might be 

### was essential. In addition to this, even where therewas an agreed fee, defendant often did not adhere to the agreement though this gave the jury an independent basis for its determination. In the Gilbert
case, for example, defendant kept 80 percent for his fee. We have already addressed the foundational deficiencies of Walsh's testimony and findno error.

TESTIMONY 

### - BY GERLACH CONCERNING OTHER CRIMES Dr. WilliamGerlach was called by the State torefute certainmedical reports that appeared inthe IAB files. Dr. Gerlach testified thathe would dictatemedical reports on various patients and then would have them typed by defendant's office. They would be returned tohim for his review

or signature. Dr. Gerlach went on totestify that themedical reports on Ray Pohjola and Earl Tannehill 

### were not prepared or signed by him. Defendant argues that this testimony was irrelevant in that it amounted to an accusation that defendant had committed the crimes of forgery and obtaining money by false pretenses, crimes which he was not charged with in the Pohjola or Tannehill counts. Furthermore, defendant was charged inthe Tannehill 

### matter with preparing a false petition for compromise settlement and the jury may have confused the issues and the proof. In Statev. Phillips (1953), 127 Mont. 381, 394, 264 P.2d 1009, 1016, we stated: 

# ".



# . . transactions which are so related to, and connected with, the forgery charged as tobe otherwise admissible arenot inadmissible because they tend toprove a wholly dissimilar crime, particularlywhere they constitute part of a connected or continuous transaction on the part of the accused.

### " The evidence inthis case tends to show that the Gerlach medical reports had been fraudulently submitted to the IAB and constitute part of a connected or continuous transaction

on the part of defendant. The testimony goes to demonstrate themanner inwhich defendant set up the system by which he could commit the 

### crimes with which he was eventually charged.

IMPEACHMENT 

### - OF WITNESS McMASTER BY 

### -STATE George McMaster 

### was the State's second witness and once he was on the stand the court allowed the State to impeach him. Section 93-1901-8, R.C.M. 1947, provides: "The party producing a witness isnot allowed to impeach his creditby evidence of bad character but he may contradict him by other evidence, and may also show that he has made 

### atother 

### times statements inconsistent with his present testimony, as provided in section 93-1901-12."Because the Statemade no showing of surprise and because 

### it

was long aware thatMcMaster's position was that he had not been a victim, defendant argues that the court erred in permitting his testimony. Witness McMaster testified that when he firstvisited defendant's office, themen agreed they would splitthe settlment 50-50. This was a surprise to the Statebecause the Statebelieved he would testify there had been no fee agreement. McMaster was a hostile witness as wellbecause he was suing the State for $100,000 as a result of having been named as a victim inthe Information filed against defendant. The Statewas only aware of the latter hostility of McMaster yet did not want todismiss the McMaster count. In Statev. Bloor (1898), 20 Mont. 574, 585, 52 P. 611, this Court stated: "Itnot infrequently happens that a witness is brought under the influence of an adverse party, and upon the trial completely deceives the party calling him. When such instances arise 

### incriminal cases, by the great weight of authority the right tocross-examine 

### arises as one necessary for the prosecution of the rights of the State against the perjury or evasion of an unwilling witness. 'I In Statev. Traufer (1939), 109 Mont. 275, 285, 97 P.2d 336, we stated: 

### "

# . . . A party is not bound toaccept the testimony of his own witness as correct, particularly incases of this nature where there 

### ismotive in changing the effect of a previously made statement. 

# . ." The DistrictCourt did not err inallowing the State to impeach the testimony of McMaster under the circumstances presented inthis case. This seemsparticularly compelling inlightof McMaster's testimony that it was defendant's idea that he make the claimagainst the State.LARRY SANFORD TESTIMONY In the Swims Under Count (Count 47), an issue arose as towhether defendant had prosecuted a products liability suitfor Mr. Swims Under against Heston Corporation. Larry Sanford, staff attorney for Heston, testified that corporation policy was toimmediately inform its liability carrier by letter of any 

### claims against the corporation. Then he testified no such letter appeared intheir file. Defendant objects to this testimony because Sanford 

### was not employed by Heston when the suitwas allegedly brought and had only been told that thatwas the policy atHeston at that timeaswell. Section 93-401-2, R.C.M. 1947, provides: "A witness can testify to those facts only which he knows of his own knowledge; that 

### is, which are derived from his own perceptions, except in those few express cases inwhich his opinions or inferences, or the declarations of others, are admissible.

### " Any problem with Sanford's testimony is a problem of weight. Defendant had the opportunity tocross-examine with respect to the completeness of Heston Corporation records of the date inquestion. Hewas further entitled to argue to the jury that this testimony could not be conclusive.

JURY INSTRUCTIONS Counts 6 and 50 of the amended Information alleged that defendant obtained money from the IAB by falsepretenses in the Barry and Tannehill cases. Counts 7 and 51 of the amended Information alleged that defendant prepared false evidence inthose cases. In allfour counts the items alleged to be falsewere Petitions for Compromise Settlement and Petitions filedby defendant. Though the jury wasadequately instructed with respect tothe nature and elements of the crimes charged, defendant objects because no instruction explained tothejury that the items alleged to be false

### were the petitions. First

### we note that during his opening statement, defense counsel requested that the court read the charging document tothe jury and the court advised him thathe might read those charges to the jury himself. Defense counsel Barron read the charges which 

### are referred toin this issue atthat 

### time. In addition tothis, prosecutor Gilbert, in his summation, discussed the falserepresentations and false evidence referred to inthe Information. Reviewing his statements inthis regard, it appears that thejury 

### was adequately apprised of the nature and subject of these charges. Beyond this, the instructionswhich were given inthis

areawere not erroneous; if defendant feltfuther instructions, including more specific instructions were necessary, it was incumbent upon him torequest more specific instructions. No such request appears inthe record. Defendant goes on toobject to the giving of three particular instructions. The firstinstruction stated, in essence, that inthe crimeof larceny by bailee restitution is not a defense when the criminal intent existed atthe 

### timeof the taking. In other words, the 

### crime 

### is complete atthe point of taking with the intent topermanently deprive. Restitution is only a defense when the defendant intended toreturn the property atthe time itwas taken. This interpretation is consistent with section 94-2717, R.C.M. 1947. Defendant next objects to the giving of the following instruction:"When, as inthis case, it is alleged that the crime charged was committed on orabout a 

### certain date, if the jury finds that the 

### crime was committed, 

### it 

### isnot necessary that the proof show that itwas committed on that precise date; 

### it is sufficient that theproof shows that the 

### crime was committed prior tothe filing of the information.

### " Defendant maintains that no evidence 

### waspresented tothe jury 

### as towhen the Information was filed so the instruction

was meaningless tothe jury as todetermining the 

### timeof the offense. To properly utilize this instruction, a jury should be apprised of the dateof the filingof the charging document. However, in the absence of any showing of prejudice, the failure of this apprisal is not reversible error. In this case, there is no showing that any proof was presented which tended toprove that any offense had been committed after the Information was filed. The next instruction objected toby defendant reads as follows: "If the evidence shows that defendant made 

### similar falserepresentations or pretenses topersons other than the owner, such evidence, if believed by you, is sufficientcorroboration." Defendant argues that there isno evidence of falserepresentations toothers as tothe falsepretense counts and the instructions should not have been given. The State argues that certain evidence was tobe considered as such and it is within the province of thejury tohave considered it. In either case, itwould not be prejudicial errorupon which to gain a reversal. Defendant next complains of the trial court's refusal toinstruct the jury that inorder to convict defendant of embezzlement or larceny by bailee, they must find that the intent to stealwas not present atthe 

### timehe took posses-sion of the funds. This issuehas been previously discussed and 

### we find no error. The crucial element here is that the defendant stolethemoney by virtue of his relationshipwith his client. Defendant next objects tocertain instructions being refused and others given with respect todefendant's position that he had a lienupon the settlement funds of the victims for legal services rendered. Our review of the instruction given and the instructions refused indicates no

error. Finally defendant argues that it 

### was improper for the court to give the jury an instruction pertaining to the purposes for which thejury could consider evidence of other 

### crimes not charged. This instruction benefits the defendant, not the State, inthat itnarrowly restricts the consideration which may be given such evidence. An intense review of this complex record reveals no prejudicial error upon which a reversal of the trial court could be founded. The judgment and sentence of the ~istrict Court is affirmed.We concur: 

# 3~4$.%4L ~lxlef Justice F-



# ono or- ~oberp J. Boyd, @istrict Judge, sitting inplace of Mr. Justice Daniel J. Shea.

Mr. Justice John C. Sheehy specially concurring: I concur only in the result. The defendant is undoubtedly guilty. I am unable to condone the ignoble actions of the State that contributed to the delay i n t r i a l and the refusal topay defendant's attorneys until forced by the court. Were defendant not an attorney, I should have dissented.