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 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

On December 1, 1976, after a trial by jury in the 

District Court of the Eighth 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 false pretenses, and two counts of preparing 

false evidence. He was sentenced to fourteen-year prison 

terms on each count with the exception of two counts of 

preparing false evidence which offenses were found to be 

incident to other offenses for which defendant was sentenced. The sentences were grouped so that defendant was 

ultimately sentenced to 56 years in prison, the last 30 

years to be suspended on the condition that defendant reimburse the victims of the offenses within one year from the 

time of sentencing. Defendant was unable to make restitution within the prescribed time and brings this appeal. 

In view of the number and complexity of the issues 

presented for review, factual summaries, insofar as they are 

pertinent, will accompany 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 to the 

United States Constitution and Article 11, Section 24 

of the 1972 Montana 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 1972 Montana Constitu tion. 
3. Whether defendant was denied his right to trial by 

a fair and impartial jury under the Fifth and Fourteenth 

Amendments to the United States Constitution and Article 11, 

Sections 4 and 24 of the 1972 Montana Constitution by 

virtue of extensive pretrial and trial publicity. 

4. Whether the District Court erred in denying defendant's motion to quash 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 in refusing 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 in admitting 

certain evidence. 

11. Whether the State proved the essential elements of 

the offense of preparing false evidence. 
12. Whether the State proved the essential elements of 

larceny by bailee. 

13. Whether defendant was denied his right to a fundamentally fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article 11, 

Section 24 of the 1972 Montana Constitution because of 

alleged over-zealous acts on the part of the prosecution. 

14. Whether defendant was denied the opportunity to 

present his defense. 

15. Whether the District Court erred in allowing 

certain testimony with respect to reasonable attorney's 

fees. 

16. Whether the District Court erred in excluding 

other testimony with respect to reasonable attorney's fees. 

17. Whether the District Court erred in allowing 

testimony concerning other crimes of the accused. 

18. Whether the District Court erred in allowing the 

State to impeach its own witness in the absence of a showing 

of surprise by the State. 

19. Whether the District Court erred in allowing the 

testimony of Larry Sanford. 

20. Whether the District Court erred with respect to 

its jury instructions relating to the offenses of obtaining 

money and property by false pretenses and preparing false 

evidence. 

21. Whether the District Court erred in refusing 

certain of defendant's jury instructions and in giving 

certain of the State's instructions. 

We will address these issues in the order of their 

presentation. 
SPEEDY TRIAL 

The following is a table of dates and events relevant 

to our consideration of whether defendant was denied his 

right to a 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 

State appeals order 78 

Supreme Court reverses order 260 

Remittitur filed 282 

Amended Information filed 294 

Defense procedural motions filed 364 

State's response to motions 

filed 393 

Hearing of motions and arraignment of defendant 414 

State moves to continue pretrial conference 478 

Pretrial conference--speedy 

trial motions 517 

The right to a speedy trial is guaranteed by both the 

United States and Montana Constitutions. U.S. Const., 

Amend. VI; 1972 Mont.Const., Art. 11, 524. The federal 

standard, as a minimum, is imposed upon the states by the 

due process clause of the Fourteenth 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 in an 

analysis of speedy trial issues. See State v. Tiedemann 

(1978) I Mont. , 584 P.2d 1284, 1287, 35 St.Rep. 

1705, 1707; State v. Collins (1978), Mont. , 582 

P.2d 1179, 1186, 35 St.Rep. 993, 1002; State v. 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; State 
v. Keller (1976), 170 Mont. 372, 377, 553 P.2d 1013, 1016; 

State ex rel. Sanford v. ~istrict Court (1976), 170 Mont. 

196, 199, 551 P.2d 1005, 1007; State v. Steward (1975), 168 

Mont. 385, 389, 543 P.2d 178, 181; Fitzpatrick v. Crist 

(1974), 165 Mont. 382, 388, 528 P.2d 1322, 1325; State v. 

Sanders (1973), 163 Mont. 209, 213, 516 P.2d 372, 375. 

In Barker, the petitioner was not tried until more than 

five years had passed from the time he was arrested. The 

delay in that case largely resulted from the fact that 

Barker's accomplice was tried six times altogether before 

finally being convicted. In Barker , 407 U.S. at 521, 92 

S.Ct. at 2187, 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 right may work 

to the accused's advantage. Delay is not an 

uncommon defense tactic. As the time between 

the commission of the crime and trial lengthens, 

witnesses may become unavailable or their memories 

may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries 

the burden of proof. Thus, unlike the right to 

counsel or the right to be free from compelled 

self-incrimination, deprivation -- of the right to 

speedy ----- trial does not per se prejudice the accused's 

ability - to defend himself." (Emphasis added.) 

The Court went on to reject two approaches which could have 

eliminated a great deal of uncertainty in prokecting the 

right. The suggestions were that the Court (1) hold that 

the Constitution requires a criminal defendant to be offered 

a trial within a specified time period, 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 to which 

he has not demanded a trial." Barker, 407 U.S. at 525, 92 

S.Ct. at 2189, 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; the 
demand-waiver rule because it is insensitive to a right 

which we have deemed fundamentalv--and adopted instead "a 

balancing test, in which the conduct of both the prosecution 

and the defendant are weighed." Barker, 407 U.S. at 529-30, 

92 S.Ct. at 2191-2192, 33 L Ed 2d at 116. 

Noting that courts must approach speedy trial cases on 

an ad hoc basis, the Court identified four factors to be 

considered as part of the balancing 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. at 2192, 33 L Ed 2d 117. We will discuss each 

of these factors in turn as we examine defendant's claim in 

the instant case. State v. Sanders (1973), 163 Mont. 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 

is presumptively 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 will provoke -- such an inquiry is necessaril 

dependent upon the peculiar circum~ances -- of thz 

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

- be tolerated -- for an ordinary street crime -- is considerably --- less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 530-31, 92 S.Ct. 

at 2192, 33 L Ed 2d at 117. (~mphasis supplied.) 

There is no question that this case is a complex one. 

Defendant noted in his brief that the "case consists of a 

transcript of 4,316 pages . . . and five full volumes of 

court files. There were hundreds of exhibits offered and 

admitted at trial." In addition to that, we note that the 

briefs submitted to this Court on appeal addressing twentyone issues presented for review are over 300 pages in length. 
Thus, the delay here that can be tolerated is considerably 

more than for an ordinary street crime. 

Even so, the delay in this case is extremely long. We 

note, in particular, 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 in this case 

and defendant's motion to dismiss for lack of speedy trial 

is of sufficient length under the circumstances of this case 

to trigger the inquiry into the other factors enumerated in 

Barker and as adopted previously by this Court. 

Reason -- for the delay. Addressing this factor, the 

Supreme Court stated: 

"Here, too, different weights should be assigned 

to different reasons. A deliberate attempt to 

delay the trial in order to hamper the defense 

should be weighed heavily against the government. 

A more neutral reason such as negligence 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 missing witness, should serve to justify appropriate 

delay." Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 

33 L Ed 2d at 117. 

The State, in the instant case, argues that in light of the 

complexity of the case, matters proceeded in an orderly 

fashion. It demonstrates one delay of 54 days when defendant's defense motions were overdue. Viewing the record as 

a whole, the most serious delay on the part of the prosecution appears to be the 205 days taken up by the State's 

appeal of the October 15, 1974, change of venue order. 

There is no showing or any attempt to show in the record 

that this delay was in any way a "deliberate attempt to 

delay the t r i a l i n order to hamper 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: 

"The dismissal 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 defendant would be prejudiced with another 

suit. The counts were doubled, but that was because of the confusion under the old larceny 

statutes, and it was 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), 165 Mont. 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 seven months 
and held it was deliberate to gain advantage. We have no 

such allegation here, not even willful negligence, and a 

clearly distinguishable factual situation. 

Assertion -- of the right. In discussing the third factor 

in the Barker balancing test, the Supreme Court stated: 

"Whether and how a defendant asserts his right 

is closely related to the other factors we have 

mentioned. The strength of his efforts will be 

affected by the length of the delay, to some 

extent by the reason for the delay, and most 

particularly by the personal prejudice, which 

is not always readily identifiable, that he 

experiences. The more serious the deprivation, 

the more likely a defendant is to complain. The 

defendant's assertion of his speedy trial right, 

then, is entitled to strong evidentiary weight 

in determining whether the defendant is being 

deprived of the right. We emphasize that failure 

to assert the right will make it difficult for 

a defendant to prove that he was denied a speedy 

trial." Barker, 407 U.S. at 531-32, 92 S.Ct. at 

2192-2193, 33 L Ed 2d at 117-18. 

In the instant case, defendant moved for dismissal for lack 

of speedy trial prior to the trial's commencement. We 

cannot ignore the fact, however, that at the time defendant 

submitted his motion he had already indicated to Judge 

Bradford that he intended to call more than 120 witnesses 

and that he felt the trial would last two months. At various times over the next several months defendant asserted 

time and again that because of the complexity of the case, 

he could not possibly be prepared to defend himself. This 

factor weighs heavily against any prejudice in the time 

lapse between filing and trial and gives substance to the 

Barker comment that speedy trial denial is not per -- se prejudicial to defendant's ability to defend himself. 

Prejudice. The prejudice factor is analyzed as follows: 

"Prejudice, of course, should be assessed in the 

light of the interests of defendants which the 

speedy trial right was designed to protect. This 
Court has identified three such interests: (i) to 

prevent oppressive pretrial incarceration; (ii) 

to minimize anxiety and concern of the accused; 

and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the 

fairness of the entire system. If witnesses die 

or disappear during a delay, the prejudice is 

obvious. There is also prejudice if defense witnesses are unable to recall accurately events of 

the distant past. Loss of memory, however, is 

not always reflected in the record because what 

has been forgotten can rarely be shown." Barker, 

407 U.S. at 532, 92 S.Ct. at 2193, 33 L Ed 2d at 

118. 

Defendant lists five ways in which he felt he 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 at this time. Aside from disbarment proceedings 

before the Commission on Practice and this Court, defendant 

was involved in three other criminal cases and one civil 

case. The emotional stress and strain and the economic 

hardship and consumption of time was to a large extent 

commingled with these other proceedings and it is difficult 

to assess fault by any precise means. Defendant contends 

that five defense witnesses had died, but there was no 

credible evidence given as to when they died, what their 

testimony would have been, or whether 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 there may 

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 right 
of speedy trial. Rather, they are related factors and must be considered together with such 

other circumstances as may be relevant. In sum, 

these factors have no talismanic qualities; courts 

must still engage in a difficult and sensitive 

balancing process." Barker, 407 U.S. at 533, 92 

S.Ct. at 2193, 33 L Ed 2d at 118. 

The Court, in applying the test to the five-year delay in 

Barker found certain deficiencies present but went on to 

say: 

"Two counterbalancing factors, however, outweigh 

these deficiencies. The first is that prejudice 

was minimal. 

"More important than the absence of serious prejudice, is the fact that Barker did not want a 

speedy trial." Barker, 407 U.S. at 534, 92 S.Ct. 

at 2194, 33 L Ed 2d at 119. 

". . . barring extraordinary circumstances, we 

would be reluctant indeed to rule that a defendant 

was denied this constitutional right on a record 

that strongly indicates, as does this one, that 

the defendant did not want a speedy trial." 

Barker, 407 U.S. at 536, 92 S.Ct. at 2195, 33 L 

Ed 2d at 120. 

In this case, as in Barker, we cannot find a showing of 

sufficient actual prejudice to invoke the extremely harsh 

remedy of dismissal of the cause. In addition, the record 

reflects that the speedy trial objections were again commingled with defendant periodically claiming he could not be 

ready for trial up to the 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 to the 

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 to his advantage with respect to the 

speedy trial without an actual showing of prejudice. We 

cannot find in this record a genuine desire for a speedy 
trial, which makes any prejudice minimal. As a result, 

prejudice was asserted but never demonstrated and there are 

no other extraordinary circumstances to compel this Court 

to rule that defendant was denied his constitutional right 

to a speedy trial. 

EFFECTIVE ASSISTANCE - OF COUNSEL 

In his brief to this Court, defendant states that the 

". . . issue raised here is not that the trial counsel were 

incompetent due to their lack of skills or actions at trial, 

but that they were rendered impotent and ineffective by the 

State's denial to them of adequate funds to prepare the 

defense up until a point at which they had inadequate time 

to prepare. I' 

Defendant's argument is divided into three parts. 

First, he claims there was a "chilling effect" created by 

the District Court's failure to provide funds - in advance 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 to certain motions, there 

was inadequate time in which to prepare a defense. Thus the 

State had allegedly put the defense in the awkward position 

of either having to go to trial unprepared, or, having to 

move for a continuance, sacrificing their speedy trial 

claim. Third, defendant complains that the District Court 

failed to provide him with an investigator to meet the 

effect of the manpower employed by the Attorney General in 

the prosecution of this case. Defendant does not argue that 

the State must supply an investigator in all cases but that 

it should have in this 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 arose with respect 

to whether they were entitled to be compensated in advance. 

The record does not indicate that defendant ever requested a 

continuance because of the claimed problem of preparation 

and hence he is in a poor position to allege prejudice. 

Finally, the appointment of - two counsel for defendant obviated any need for an investigator for the general preparation for trial and in addition the court did authorize the 

hiring of an investigator in Alaska who worked for the 

defense. 

Defendant's retained counsel moved to withdraw from the 

case in November 1975. The District Court subsequently appointed counsel for defendant in January 1976. The first 

real problem with appointment of counsel arose on March 31, 

1976, when the State moved to set aside the District Court's 

March 23 order for interim payment 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 to this Court, Application of Barron 

(1976), 170 Mont. 218, 552 P.2d 70. This Court affirmed the 

District Court's ruling and remanded the case for an evidentiary hearing to determine the amount of money due appointed counsel. The decision was issued July 9, 1976. A 

hearing was held on August 25 which resulted in the District 

Court's ordered payment of $5000 and $9,760.43 to defense 

counsel for their fees and expenses. By September 15, 

defendant's counsel had still not received their money and 

moved the District Court on that day to permit their withdrawal as counsel and to dismiss the action on the ground of 
misconduct on the part of the Attorney General. The motion 

to permit 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, in this 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 that he has made no showing that the alleged lack 

of preparation on the part of his appointed counsel prejudiced him in any way. In fact, defendant asks us to presume 

his counsel were ineffective because they were not compensated far in advance. Defendant does not reveal what his 

counsel had been able to accomplish during the time they had 

been on his case. We can only speculate as to whether any 

prejudice resulted due to alleged lack of preparation on the 

part of defendant's counsel. Again, without a motion for 

continuance on these grounds and without any showing of 

actual prejudice, we cannot presume that counsel were thereby rendered ineffective. 

PUBLICITY AND -- FAIR TRIAL 

Statewide publicity, especially concentrated in Great 

Falls, accompanied the prosecution of this case at each 

stage. On July 29, 1975, defendant moved the District Court 

to dismiss the charges or, in the alternative, continue the 

date for trial due to extensive pretrial publicity. The 
court-denied the motion. Defendant again moved for dismissal on December 29, 1975. The court denied this motion 

as well. 

~efendant again raised the issue of pretrial publicity 

after the swearing of the jury at his trial on October 18, 

1976. By that time defendant had become the object of heavy 

statewide publicity because of a trial in which he had been 

charged with and acquitted of soliciting persons to assassinate the Attorney General. Also, a statewide general 

election was imminent in which,the Attorney General was a 

gubernatorial candidate. 

The publicity continued during the trial of the case. 

It culminated in the door-to-door distribution of a political newsletter entitled the "Montana Gazette" in which 

defendant's name was mentioned. On October 27, 1976, defendant filed a motion for a mistrial because of the publicity. 

Defendant argues that we should presume, under the 

facts of this case, that the mid-trial publicity reached the 

nonsequestered jury. He goes on to argue that the trial 

court should have examined the jury concerning (1) their 

contact with the material and (2) its prejudicial effect 

upon them. Throughout his argument, it is the Attorney 

General's participation in the publicity that defendant 

objects to most strongly. 

Again, we have a sword that cuts both ways. The record 

is clear and evidence substantial regarding defendant's own 

attempt to use the media to his advantage as well as his 

failure to move for change of venue on the basis of the 

publicity. For example, on October 27, 1976, defendant 

moved to hold prosecutor Gilbert in contempt partially on 

the grounds that the prosecution had been seen talking to 
reporters. Coincidentally, the Great Falls Tribune had 

predicted this action and stated that defendant had contacted the reporter. The theatrics reflected in the record 

by defendant is not indicative of conduct tending to show 

genuine concern over the amount of pretrial and trial publicity and when reported cannot be condemned. Additionally, 

the motion was not accompanied by an affidavit leaving the 

court, again, no facts upon which it could act. The court 

did state that: "The court has observed and read the publication, at least in the Great Falls Tribune, and they have 

seemed straightforward reporting, nothing else. And how 

that is ever going to be prejudicial is beyond me." 

Beyond that, defendant's argument that the trial court 

should have conducted a poll of the jury to determine whether the members had seen a copy of the "Montana Gazette" is 

- not properly before this Court inasmuch as defendant made no 

motion for the poll in the trial court and raises the issue 

for the first time in this Court. 

Section 95-1710, R.C.M. 1947, now section 46-13-203 

MCA, sets out the procedure to obtain relief in a proper 

case of untoward publicity: 

"(a) The defendant or the prosecution may move 

for a change of place of trial on the ground that 

there exists in the county in which the charge is 

pending such prejudice that a fair trial cannot 

be had in such county. The motion shall be made 

at least fifteen (15) days prior to trial, unless, 

for good cause shown, it may be made thereafter. 

"(b) The motion shall be in writing and supported 

by affidavit which shall state facts showing the 

nature of the prejudice alleged. The defendant 

or the state may file counteraffidavits. The 

court shall conduct a hearing and determine the 

merits of the motion. 

" (c) If the court determines that there exists 

in the county where the prosecution is pending 

such prejudice that a fair trial cannot be had 

it shall transfer the cause to any other court 

of competent jurisdiction in any county where a 

fair trial may 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 

State v. 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 

in the instant case: 

"It is 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 the public 

in the vicinity, and scarcely any of those best 

qualified to serve as jurors will not have formed 

some impression or opinion as to the merits of 

the case. This is particularly true in criminal 

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 

impartiality would be to establish an impossible 

standard. It is sufficient if the juror can lay 

aside his impression or opinion and render a verdict based on the evidence presented in court." 

As set forth above, defendant has failed to meet his 

burden of showing the nature of the publicity, the effect of 

the publicity, and the necessity of such a drastic remedy. 

He has also failed to meet the procedural requirements of 

moving for a change of venue and submitting an affidavit 

containing specific allegations as to the prejudicial nature 

of the publicity. 

PROBABLE CAUSE FOR FILING INFORMATION 

On September 16, 1974, the State filed an affidavit in 

support of a motion for leave to file an Information against 
defendant. The affidavit listed the alleged victims in 

alphabetical order. Defendant sets forth the charges in his 

summary in three basic categories. The State combines 

defendant's first two categories, arguing that the existence 

or nonexistence of an accounting in each case is of little 

or no relevance in discussion probable cause. 

"(1) A settlement was made by the compensation 

insuror, the settlement check was deposited into 

a bank account, some time thereafter, ranging 

from days to years, the alleged victim received 

a check for their portion of the settlement but 

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 was made 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 to the amount 

and disposition of the total settlement. (This 

fact situation is applicable to the following 

alleged victims--Curtissf Gaines, Gilbert, Guszregan, Hall, Lavalley, McMaster, Pohjola, Swims 

Under and Wesland.) 

" (3) A settlement was made by the compensation 

insuror, the settlement check was deposited into 

a bank account and the alleged victim was never 

contacted by Mr. Bretz and, to the 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 to quash the Information on the grounds that (1) there 

was an abuse of probable cause set forth in the affidavit to 

justify filing of the Information; and (2) no crime or 

crimes were stated in the facts alleged in the affidavit. 

Defendant again raised this issue on December 29, 1975, in 

another pretrial motion. 

Defendant argues that the fact lacking in the affidavit 

is the showing of intent requisite to prove larceny. He 
then argues that the District Court erred in allowing the 

State to file the Information where the supporting affidavit 

failed to establish probable cause. 

The basic crime with which defendant was charged and 

upon which he was tried was larceny by bailee as set forth 

in section 94-2701, R.C.M. 1947: 

"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 either-- 

"2. Having in his possession, custody or control, 

as a bailee, servant, attorney, agent, clerk, 

trustee, or officer of any person, association, 

or corporation, or as a public officer, or as a 

person authorized by agreement or by competent 

authority to hold, or take such possession, custody, or control, any money, property, evidence 

of debt, or contract, article of value of any 

nature, or thing in action or possession, appropriates the same to his own use, or that of any 

other person other than the true owner, or person 

entitled to the benefit thereof, steals such property and is guilty of larceny." 

Section 95-1301, R.C.M. 1947, now section 46-11-201 MCA, 

provides in pertinent part: 

" (a) The county attorney may apply directly to 

the district court for permission to file an information against a named defendant. The application must be by affidavit supported by such 

evidence as the judge may require. If it appears 

that there is probable cause to believe that an 

offense has been committed by the defendant the 

judge shall grant leave to file the information, 

otherwise the application shall be denied." 

The rationale of probable cause for filing an information is the same as probable cause for arrest. State ex 

rel. Pinsoneault v. District Court (1965), 145 Mont. 233, 

"Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful 

grounds for prosecuting the defendant in the 

manner complained of." Pinsoneault, 145 Mont. 

at 239, 400 P.2d at 272. 
Any determination with respect to the existence of 

probable cause for the filing of 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 establish probable cause. In so finding, we emphasize the 

improbability that the facts alleged resulted from innocent 

bookkeeping errors or clerical mistakes. Viewing the Information as a whole, the District Court did not err in concluding that probable cause existed for directly filing the 

Information. 

DOUBLE JEOPARDY -- COLLATERAL ESTOPPEL 

Defendant was also a defendant in State v. Cline 

(1976), 170 Mont. 520, 555 P.2d 724, referred to by the 

parties as the Wampole 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 acts or omissions which are 

motivated by a common purpose or plan and which 

result -- in the repeated commission --- of the same 

offense or affect -- the same person or persons - or 

the thereof. " (Emphasis added. ) 

Defendant argues that the State merely used the Wampole 

case as a "dry run" to test their prosecution success. 

Defendant then argues that the practical effect of multiple 
prosecutions was to (1) contribute to his eventual indigency; (2) expand press coverage; and, (3) provide practice 

for the prosecution. 

We note that the Information filed in Cascade 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 cite Ashe 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": 

"It means simply that when an issue of ultimate 

fact has once been determined by a valid and 

final judgment, that issue cannot again be litigated between the same parties in any future law 

suit. " (Emphasis added. ) 

The instant case involves no issue of ultimate fact which 

was twice litigated. If any valid objection existed in this 

area, it would have been proper to make the objection upon 

the filing of the second Information in Lewis and Clark 

County. 

JUROR'S INDEPENDENT KNOWLEDGE 

Juror Thomas Clary was a Great Falls attorney who had 

been asked to act as a special prosecutor to bring 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 at length 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. 
At the conclusion of the trial Juror Clary met with the 

judge and counsel in chambers and told them what he knew. 

Defendant's attorney made no objection at that time even 

though there were three alternate jurors available. The 

defense failed to meet its responsibility to the court by 

its failure to properly object and thereby give the court an 

opportunity to remedy any alleged defects that may 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 court may 

review the verdict or decision, and any order or 

decision objected to which involves the merits, 

or necessarily affects the judgment." (Emphasis 

added. ) 

CRUEL AND UNUSUAL PUNISHMENT 

Defendant was convicted of eighteen counts in this case 

and sentenced on sixteen. The court imposed the maximum 

term of 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 to be 

served concurrently, but the four groups of ,convictions were 

ordered to run consecutively resulting in a 56 year prison 

term. 

In imposing sentence, the District Court stated: 

"NOW, the length of the sentence that this Court 

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 his method of operation is deceit, his playing and praying upon the 

weak and the poor, knowing their condition, is 

more reprehensible, in the 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 are unbelievable. It is 

unbelievable that an attorney, admitted to the 
practice of law, would engage in the type of 

activities that Mr. 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, in the 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 to is a reversal of the Wampole case by the Federal Appeals Court. That reversal apparently clears his conscience. He also, 

in that same news item, critized [sic] the State 

for wasting money in the prosecution of these 

Workmen's Compensation cases, saying that only 

one man has spent sixty eight days in prison for 

all that has been done. I take this into note, 

and perhaps I will correct that imbalance. He 

also states that he has many grounds for appeal, 

and that ultimately there will be a reversal, as 

there was in the Wampole case. This may be so. 

His conscience may be clear, if that so happens. 

But the harsh reality of his greed to the people 

who have been victimized will never be erased by 

any reversal." 

Defendant was sentenced to one-fourth of the maximum 

sentence allowed by law for the offenses of which he was 

convicted. The general rule is that "a sentence within the 

maximum authorized by statute is not cruel and unusual 

. . ." State v. Karanthos (1972), 158 Mont. 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 into question. 

CONDITIONING SUSPENSION - ON RESTITUTION 

The District Court included the following conditions in 

the judgment and order of commitment: 
"It is Further 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 

or before December 13, 1977, an amount sufficient 

to pay all victims 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. At this 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 to have been defrauded. 

"4. Should the defendant not make full payment 

within the time prescribed, 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 District Court included the amount of the settlement on three counts upon which he was acquitted. Second, 

he argues this amounted to an 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 in pertinent part: 

"(1) Whenever a person has been found guilty of 

an offense upon a verdict or a plea of guilty, 

the court may: 

" (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 or without a fine as provided by law 

for the offense; 

" (e) impose any combination of subsections (1) (b) , (1) (c) I and (1) (dl . " 

When the judgment 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 at this stage of the proceeding is not possessed 

of full citizenship and not entitled to all of the constitutional rights of a free man. We have met this problem 

in recent cases and have held as have other jursidictions 

and the United States Supreme Court, see State v. 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 in connection with theft-type convictions, is a 

proper condition for suspension or probation. A consideration of the entire record in this case demonstrates that the 

trial judge has been more than fair and his granting defendant an opportunity for suspension is an act of 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, in view 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 time for sentencing, at the hour of 11:OO 

o'clock A.M. 

"Now, at that time Counsel for the Defense may 

present any matters in mitigation of punishment 

if they wish it at that time." 
On December 3, 1976, the prosecutors for the State sent 

a letter to Judge Martin setting forth their views with 

respect to defendant'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 in California in another matter. Because of illness, defendant's sentencing 

was delayed until December 13. At that time, defense counsel stated that, in his opinion, in the absence of a presentence investigation, "the Court lack[ed] the proper 

necessary information to pass judgment in this matter." The 

State answered that, among other things, the court had had 

access to a copy of another presentence investigation prepared in another trial of defendant. The court said that it 

had looked at the report, found that it was not helpful, and 

then detailed for the record the reasons for the sentence it 

was about to impose. 

Defendant objects to two parts of this procedure. 

First, he argues that the District Court should have ordered 

a presentence investigation and that the prior document was 

not an adequate substitute. Citing State v. Orsborn (1976), 

170 Mont. 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 to rebut any 

misinformation it might 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 to the court. Failure to do this, says 

defendant, was a denial of due process. 

Section 95-2203, R.C.M. 1947, now section 46-18-111 

MCA, provides in pertinent part: 
"No defendant convicted of a crime which may result in commitment for one (1) year or more in 

the state prison, shall be sentenced or otherwise 

disposed of before a written report of investigation by a probation officer is presented to and 

considered by the court, unless the court deems 

such report unnecessary." (Emphasis added.) 

The obvious import of this statute is to provide a means by 

which a court can fashion a punishment which will fit not 

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 in a 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 in any way is extremely doubtful. The District 

Court detailed at some length its reasons for the sentence 

imposed on defendant and he had the opportunity to respond 

to those reasons at that time with any mitigating factors he 

could find. 

The same is true of the letter sent to Judge Martin by 

the prosecutors with its attachment. Defendant was furnished with a copy of the letters and with the opportunity 

to mitigate any effect he felt it might have. The letter 

from the daughter of one of the victims was not mentioned by 

the judge as a contributing factor in his sentencing decision and the particular count to which it related did not 

result in an enhanced punishment. 

ADMISSION - OF EXHIBITS 

The State introduced the files of the Industrial Accident Board Worker's Compensation Division as Exhibit No. 1 
under the Business Records as Evidence Act, sections 93-801- 

1 through 93-801-6, R.C.M. 1947. Each file consisted primarily of the following documents: 

1. Settlement draft; 

2. Petition for compromise settlement; 

3. Carden settlement memorandum; 

4. Appointment of Attorney in Fact 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 as relevant, be competent evidence 

if the custodian or other qualified witness 

testifies to its identity and 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 admission." 

Defendant argues that the State was required to produce 

evidence of the source, mode, and time of preparation of the 

IAB file exhibits. In fact, the testimony of Albert G. 

Pillen, who was the claims manager for the State Insurance 

Fund at the time of most of the events in question, provided 

this foundation. Defendant, though, claims that Pillen 

could not lay the proper foundation because he had not 

examined the individual documents in the file. We find that 

Pillen was a qualified witness and that a qualified witness 

under circumstances like those presented in this case need 

not have examined every document in a file. Furthermore, 

again defendant has failed to demonstrate that any of the 

evidence presented is not 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 into evidence 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 is kept by an official state or 

county agency for the benefit of the public. he fact that 

a number of signatures were introduced helped to insure 

their authenticity. 

PROOF - OF ELEMENTS - OF PREPARING FALSE EVIDENCE 

Defendant argues that the State failed to prove the two 

counts of preparing false evidence. Count VII alleged that 

defendant's preparation of petitions for lump sum and compromise settlements, submitted to the 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 to Earl Tannehill, who was also dead. Defendant 

contends that the State failed to prove the following 

material allegations: 

"A. That the documents were intended 'as evidence.' 

"B. That the documents produced were of the type 

intended to be covered by the criminal statute. 

"C. That the documents were produced in a trial, 

proceeding or inquiry authorized by law. 

"D. That the documents were prepared in Cascade 

County, the venue of the trial." 
Section 94-1703, R.C.M. 1947, provides as follows: 

"Every person guilty of preparing any false or 

antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce or allow it to be produced for any fraudulent 

or deceitful purpose, as genuine 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 were required to be proved in the instant case are (1) 

preparation of a false report; (2) with intent to produce 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 at death. Intent is a factual question for the jury, 

the fraudulent purpose being to obtain money knowing he was 

not entitled to it. The petitions were a statutory prerequisite to the 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 to venue, we recognize that venue 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 was presented from which the jury 

could determine that the State proved 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 settlement resulted 

in checks being sent to defendant in Great 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, section 
94-2701(1), R.C.M. 1947, and Larceny by Bailee, section 94- 

2701 (2), R.C.M. 1947. The State chose to go 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 in pertinent 

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 in his 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 to his own use, or that of 

any other person other than the true owner, or 

person entitled to the benefit thereof, steals 

such property and is guilty of larceny." 

Defendant argues that the State failed to prove three 

elements of the crime charged. First, he argues that the 

State failed to prove that defendant was an "attorney." 

Second, he argues that the State's proof negated the requisite element of "intent to permanently deprive" the owner of 

funds. Finally, he argues that the State offered 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 to determine if the verdict is 

supported by substantial evidence. State v. Pepperling 

(1974), 166 Mont. 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 in favor of such judgment." State v. Stoddard 

(1966), 147 Mont. 402, 408. 412 P.2d 827, 831. 
See also State v. Cor (1964), 144 Mont, 323, 396 P.2d 86. 

 he record in this case amply demonstrates that defendant intended to permanently deprive his own injured clients 

of their money. Exhibits presented at trial showed low 

deposits in bank accounts maintained by defendant into which 

the settlement checks from the clients were deposited. In 

each case, it was demonstrated that there was at least one 

point in time when defendant could not possibly have distributed the client's share of the money to the client. 

As applied to the charges in this case, section 94- 

2701(2) requires the State to prove that defendant took 

possession of the funds either as an attorney - or as a person 

authorized by agreement or competent authority. With respect to each count, the State need 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; dealt with the IAB as 

the client's attorney; wrote letters, received correspondence, filed documents with the IAB, and received his client's money, all as an 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 to prove that defendant sought out his 

clients with the intent to ultimately steal from them. This 

prior intent is not consistent with the intent element 

present in the 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 in the 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 acts by the prosecution denied him his basic constitutional right to a fair trial. He lists six specific acts: 

1. Filing of multiple counts; 

2. Participation in pretrial 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 in violation 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 first three 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 case might well have been prosecuted on a 

shorter, original 29-count Information with a resulting 

speedup in the proceedings, simplification of the issues and 

minimi zing 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 visit he had received from 

defense counsel Connor. Gilbert asked Earley if Connor had 

shown him a letter at that 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 to check his files for 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 as violative 

of the Fifth Amendment guarantee that a defendant cannot be 

compelled to furnish evidence against himself. 

Number 6 refers to the fact that the State was permitted to add certain witnesses to its list of witnesses 

following voir dire. Three of these witnesses were ultimately called to the stand in the course of the trial. 

Addressing this last issue first, we note that one of 

the three witnesses who could have possibly prejudiced 

defendant's case was a witness defendant had listed as his 

own. Aside from this, the District Court stated at the time 

the witnesses were listed that he would grant a continuance 

on defendant's request prior to the examination of these 

witnesses if defense counsel needed extra time to 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 

Fifth Amendment grounds at the time of 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 

filed with this Court does not contain an objection by 

defendant with respect to the dismissal of the first Information and the filing of the second. 

Having previously discussed the first three matters 

with respect to other issues, we are left with the task of 

assessing the overall impact of these matters considered 

together. We find that the issues presented here, if they 

were to be considered error, are not of the quality to be 

in any sense prejudicial. 

DENIAL - OF OPPORTUNITY - TO PRESENT DEFENSE 

Defendant contends that certain alleged errors and 

erroneous ruling attendant to this case had the effect of 

violating his constitutional right "to have compulsory 

process for obtaining witnesses in his favor as guaranteed 

by the Sixth Amendment to the United States Constitution and 

Article 11, Section 24 of the Montana Constitution of 1972." 

He breaks this assignment of error into five parts. 

1. Failure to pay appointed counsel; 

2. Denial and quashing of subpoenas without proper 

basis; 

3. Refusal to allow in evidence of accountings submitted by defendant to an alleged victim; 

4. The refusal to allow testimony as to work performed; 

5. Having to clear out-of-state witnesses with the 

court and State before obtaining subpoenas. 

We have previously discussed defendant's first assignment of error in this regard and found no showing of prejudice to his defense. 
The denial and quashing of subpoenas mentioned refer to 

two incidents. The first involved defendant's failure to 

obtain a a subpoena duces tecum commanding Mrs. Robert 

Morris, the wife of an alleged victim, to bring copies of 

the couple's Internal Revenue returns for a number of years. 

Defendant himself stated the purpose for which he wished to 

subpoena the records: 

"Mrs. Morris will be a witness in this case for 

the defendant, and the purpose of this subpoena, 

Your Honor, it is going to become relevant in 

this case concerning the addresses and employers 

and earnings of this particular witness for the 

State. And the best evidence probably of the 

earnings, employer and addresses and so forth 

will by 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 is most relevant on this 

issue. This is one of the main parts of the 

Morris count. " 

The State objected to the granting of the subpoena on the 

grounds that it was not the best evidence and no need was 

shown for the records. The District Court, in denying the 

subpoena, stated that "[wlhen you establish a foundation and 

basis for it, then the court will look at it." It is not 

error to require a proper foundation. 

A similar incident occurred concerning a subpoena by 

the defense of a representative of the Credit Bureau. The 

Credit Bureau moved to quash and the State supported the 

motion arguing that there was no foundation laid for the 

evidence to be gained. After some argument, defense counsel 

Barron asked that the matter be postponed until a sufficient 

foundation was laid. The defense apparently did not pursue 

this matter following that acquiescence. This specification 

requires no comment. 

Turning to defendant's next argument regarding evidence 

of accountings, it appears that the testimony of Greg 
Warner, an attorney who represented victim Hortick in a 

lawsuit against defendant, was excluded by the trial court. 

~efendant's offer of proof was to the effect that Mr. Warner's testimony would show that defendant was holding the 

money openly under a claim of right. However, this purported good faith claim to the settlement was not made 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 to his defense of 

good faith. 

Next, defendant claims that he offered to prove that 

victim Hortick had been involved in criminal difficulties, 

that he had retained defendant to defend him, that defendant 

did some work in this matter and was entitled to a fee. 

This fee was then claimed as an offset against 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, that he performed a certain amount of 

work, that he was therefore entitled to a 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 in the matter 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, in the absence of the proper 

foundational testimony, the evidence was properly excluded. 
Finally, before obtaining subpoenas for out-of-state 

witnesses, the defense was required to demonstrate the 

materiality of the witness' testimony. The State was allowed to be present during such demonstrations. Defendant 

argues that his defense was thereby revealed and prejudiced. 

This issue arises out of 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 to determine whether these were legitimate 

witnesses. Again, defendant has made no showing of prejudice with respect to his inability to obtain 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 first testimony which is objected to 

by defendant came from Bud Pillen, Bureau Chief of the State 

Insurance Fund. He testified that in his observation attorneys regularly charged "twenty-five percent [of settlements] 

unless the case went to hearing, and then it was usually 

one-third." If it went to the Supreme Court, possibly forty 

percent. Next, Neil Keefer, a Montana attorney specializing 

in Workers' Compensation, testified that his normal fee to 

Workers' Compensation clients was 25 percent. 

Defendant argues that this testimony should not have 

been admitted because it had nothing to do with the issue 

before the jury, whether defendant embezzled from the client. At the time there was no statutory limit on 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 to present the testimony of James Walsh, Deputy County Attorney for Cascade 

County. His testimony related to the alleged representation 

of Donald Hortick in the criminal matter previously discussed. 

The testimony of witnesses Pillen and Keefer about the 

reasonableness of attorney fees was relevant to the transactions in which no fee agreement was made between the 

client and Bretz. Keefer's testimony was primarily limited 

to the Stanley Gaines file and defendant was ultimately 

acquitted of the count. Beyond that, the purpose of expert 

testimony is to assist the jury in making its determination; 

it does not limit the jury's capacity to decide for itself. 

Since the statute in effect at the time provided 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 there was 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 find no error. 

TESTIMONY - BY GERLACH CONCERNING OTHER CRIMES 

Dr. William Gerlach was called by the State to refute 

certain medical reports that appeared in the IAB files. Dr. 

Gerlach testified that he would dictate medical reports on 

various patients and then would have them typed by defendant's office. They would be returned to him for his review 

or signature. Dr. Gerlach went on to testify that the 
medical 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 in the Tannehill matter with preparing a false 

petition for compromise settlement and the jury may have 

confused the issues and the proof. 

In State v. 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 to be 

otherwise admissible are not inadmissible because 

they tend to prove a wholly dissimilar crime, 

particularly where they constitute part of a connected or continuous transaction on the part of 

the accused. " 

The evidence in this 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 

the manner in which 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 is not allowed to 

impeach his credit by evidence of bad character 

but he may contradict him by other evidence, and 

may also show that he has made at other times 

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

was long aware that McMaster'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 first visited 

defendant's office, the men agreed they would split the 

settlment 50-50. This was a surprise to the State because 

the State believed he would testify there had been no fee 

agreement. McMaster was a hostile witness as well because 

he was suing the State for $100,000 as a result of having 

been named as a victim in the Information filed against 

defendant. The State was only aware of the latter hostility of McMaster yet did not want to dismiss the McMaster 

count. In State v. Bloor (1898), 20 Mont. 574, 585, 52 P. 

611, this Court stated: 

"It not 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 in criminal cases, by the great weight of authority the 

right to cross-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 State v. Traufer (1939), 109 Mont. 275, 285, 97 P.2d 

336, we stated: 

" . . . A party is not bound to accept the testimony of his own witness as correct, particularly 

in cases of this nature where there is motive in 

changing the effect of a previously made statement. . ." 

The District Court did not err in allowing the State to 

impeach the testimony of McMaster under the circumstances 

presented in this case. This seems particularly compelling 

in light of McMaster's testimony that it was defendant's 

idea that he make the claim against the State. 
LARRY SANFORD TESTIMONY 

In the Swims Under Count (Count 47), an issue arose as 

to whether defendant had prosecuted a products liability 

suit for Mr. Swims Under against Heston Corporation. Larry 

Sanford, staff attorney for Heston, testified that corporation policy was to immediately inform its liability carrier 

by letter of any claims against the corporation. Then he 

testified no such letter appeared in their file. 

Defendant objects to this testimony because Sanford was 

not employed by Heston when the suit was allegedly brought 

and had only been told that that was the policy at Heston at 

that time as well. 

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 in which 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 to cross-examine with 

respect to the completeness of Heston Corporation records of 

the date in question. He was 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 false pretenses in 

the Barry and Tannehill cases. Counts 7 and 51 of the 

amended Information alleged that defendant prepared false 

evidence in those cases. In all four counts the items 

alleged to be false were Petitions for Compromise Settlement and Petitions filed by defendant. Though the jury was 
adequately instructed with respect to the nature and elements of the crimes charged, defendant objects because no 

instruction explained to the jury 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 to the jury and the court advised him that he might 

read those charges to the jury himself. Defense counsel 

Barron read the charges which are referred to in this issue 

at that time. In addition to this, prosecutor Gilbert, in 

his summation, discussed the false representations and false 

evidence referred to in the Information. Reviewing his 

statements in this regard, it appears that the jury was adequately apprised of the nature and subject of these charges. 

Beyond this, the instructions which were given in this 

area were not erroneous; if defendant felt futher instructions, including more specific instructions were necessary, 

it was incumbent upon him to request more specific instructions. No such request appears in the record. 

Defendant goes on to object to the giving of three 

particular instructions. The first instruction stated, in 

essence, that in the crime of larceny by bailee restitution 

is not a defense when the criminal intent existed at the 

time of the taking. In other words, the crime is complete 

at the point of taking with the intent to permanently deprive. Restitution is only a defense when the defendant 

intended to return the property at the time it was 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 in this case, it is alleged that the 

crime charged was committed on or about a certain date, if the jury finds that the crime was 

committed, it is not necessary that the proof 

show that it was committed on that precise date; 

it is sufficient that the proof shows that the 

crime was committed prior to the filing of the 

information. " 

Defendant maintains that no evidence was presented to the 

jury as to when the Information was filed so the instruction 

was meaningless to the jury as to determining the time of 

the offense. To properly utilize this instruction, a jury 

should be apprised of the date of the filing of 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 to prove that any offense had been 

committed after the Information was filed. 

The next instruction objected to by defendant reads as 

follows: 

"If the evidence shows that defendant made similar false representations or pretenses to persons 

other than the owner, such evidence, if believed 

by you, is sufficient corroboration." 

Defendant argues that there is no evidence of false representations to others as to the false pretense counts and the 

instructions should not have been given. The State argues 

that certain evidence was to be considered as such and it is 

within the province of the jury to have considered it. In 

either case, it would not be prejudicial error upon which to 

gain a reversal. 

Defendant next complains of the trial court's refusal 

to instruct the jury that in order to convict defendant of 

embezzlement or larceny by bailee, they must find that the 

intent to steal was not present at the time he took posses- 
sion of the funds. This issue has been previously discussed 

and we find no error. The crucial element here is that the 

defendant stole the money by virtue of his relationship with 

his client. 

Defendant next objects to certain instructions being 

refused and others given with respect to defendant's position that he had a lien upon 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 the jury could consider evidence of other 

crimes not charged. This instruction benefits the defendant, not the State, in that it narrowly 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 in place 

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 

to pay defendant's attorneys until forced by the court. Were 

defendant not an attorney, I should have dissented.