State v. Cline, 13226

Citation170 Mont. 520,555 P.2d 724
Decision Date10 November 1976
Docket NumberNo. 13226,13226
PartiesThe STATE of Montana, Plaintiff and Respondent, v. Merrel CLINE et al., Defendants and Appellants.
CourtUnited States State Supreme Court of Montana

Moses, Kampfe, Tolliver & Wright, Billings, Charles F. Moses, argued, Billings, W. William Leaphart, argued, Helena, for appellants.

Robert L. Woodahl, Atty. Gen., Helena, John F. North, argued, Asst. Atty. Gen., Helena, for respondent.

HASWELL, Justice.

Defendants appeal from their convictions of the crime of obtaining money by false pretenses following jury trial in the district court of Lewis and Clark County before the Hon. W. W. Lessley, district judge presiding.

The prosecution arose out of a claim for Workmen's Compensation benefits in connection with the death of Wesley Wampole. Defendant Bretz, an attorney, prepared the claim for Wampole's widow Nona, in which it was represented that Wampole died as a result of a severe strain suffered on January 8, 1973, while employed by Courtesy Mobile Homes. Courtesy was a corporation of which defendant Shirley Cline was president and defendant Merrel Cline, her husband, was manager. Mrs. Wampole signed the claim for compensation benefits but later and at the trial she stated that Wesley Wampole had not worked for Courtesy on that day and that defendant Bretz had made up the false claim to get money from the State Workmen's Compensation Insurance Fund.

Defendant Merrel Cline signed the Employer's First Report of Injury stating that Wampole had worked for Courtesy on January 8, and caused it to be filed with the Workmen's Compensation Division in Helena.

Mr. and Mrs. Stubbs who ran the Conrad, Montana office of Courtesy, gave a statement to the Workmen's Compensation Division that Wesley Wampole was working for Courtesy in Conrad on January 8. At the trial employees of Courtesy testified that Wesley Wampole had never worked for Courtesy; that defendant Merrel Cline told them to lie; that defendant Shirley Cline instructed that Wesley Wampole's name be entered on the payroll of Courtesy but that he was dead and no check would be issued.

Later the Workmen's Compensation Division entered into a 'nonacceptance' settlement in the amount of $5,400 based on information contained in the claim file of Wesley Wampole. The state settlement warrant was mailed to defendant Bretz' law office in Great Falls, Montana in February, 1974. Mrs. Wampole later received $2,700 by personal check from defendant Bretz pursuant to their fee arrangement without ever seeing the state settlement warrant.

The attorney general's office handled the investigation and prosecution of this case under a grant of authority from the state legislature. Section 79-2315, R.C.M.1947.

On October 31, 1974, special assistant attorneys general Richard Dzivi and Al Wells filed a motion for leave to file an Information direct in the district court, Lewis and Clark County. This motion was granted and an Information was filed charging defendants Bretz and Merrel Cline in nine counts with the crimes of grand larceny, obtaining money and property by false pretenses, preparing false evidence, offering false evidence, and presenting false proof upon a policy of insurance. In the same Information defendant Shirley Cline was charged with one count of presenting false proof upon a policy of insurance.

Subsequently the case came on for trial on March 10, 1975; the jury was empaneled and sworn; and the trial was continued. On March 21 four counts were dismissed. Both the state and the defendants applied to this Court for a writ of supervisory control, which we denied.

On April 4 the state moved to dismiss the Information for the express and exclusive purpose of filing a new Information. The state's motion was granted and a new Information was filed charging all three defendants with two crimes: Count I charging the crime of grand larceny; and Count II charging the crime of obtaining money and property by false pretenses.

Subsequently the case came on for trial, a new jury was empaneled and sworn, and the trial proceeded. At the conclusion of all the evidence Count I charging grand larceny was dismissed by the court. All three defendants were convicted by jury verdict of Count II, obtaining money by false pretenses. All three defendants now appeal from the judgment of conviction.

Defendants have presented many specifications of error which we group in the following discussion. Such further facts as appear necessary to an understanding of each specification of error will be set forth hereinafter.

The first specification of error is that the evidence is insufficient to support the cvonviction of defendant Shirley Cline. She argues that under the instructions to the jury, proof that she received some of the settlement proceeds was necessary to convict and there was no evidence that she did.

The state offered its proposed instruction #4 setting forth the elements of the crime of obtaining money by false pretenses. This instruction was given to the jury as Instruction No. 18:

'Every person who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds another person of money or property is guilty of obtaining money or property by false pretenses.

'The elements of obtaining money or property by false pretenses are:

'1. That there was a making by the accused to the Workmen's Compensation Division of one or more representations of past events or existing facts; and

'2. That the Workmen's Compensation Division believed such representations to be true; and relying thereon, the Workmen's Compensation Division parted with its money or property which accused received.

'3. That such representations were false; and

'4. Were made knowingly and designedly with the intent to defraud the Workmen's Compensation Division.

'If, after considering all of the evidence, you find that the prosecution has established beyond a reasonable doubt that the defendants acted in such a manner so as to satisfy all of the above elements at or about the date and place stated in the information, you should find the defendants guilty of obtaining money or property by false pretenses; if you do not so find, you should find the defendants not guilty.' (Emphasis supplied.)

This instruction requires the state to prove beyond a reasonable doubt that Shirley Cline received part of the settlement proceeds. Although the state now argues on appeal proof that defendant Shirley Cline received a part of the settlement proceeds herself is unnecessary to convict, citing State v. Lagerquist, 152 Mont. 21, 445 P.2d 910, the above instruction requiring such proof became the 'law of the case' and the jury was bound thereby. DeLeon v. McNinch, 146 Mont. 287, 407 P.2d 45; McDonald v. Peters, 128 Mont. 241, 272 P.2d 730; Wood v. Jeager, 128 Mont. 235, 272 P.2d 725; Metcalf v. Barnard-Curtiss Co., 120 Mont. 50, 180 P.2d 263; Bowman v. Lesis, 110 Mont. 435, 102 P.2d 1; Ingman v. Hewitt, 107 Mont. 267, 86 P.2d 653.

There is a total absence of proof that defendant Shirley Cline received any part of the settlement proceeds. On the contrary all the evidence in the case indicates she did not. The undisputed evidence shows that the $5,400 state settlement warrant went to the law office of defendant Bretz and that Mrs. Wampole was paid $2,700. Defendant Shirley Cline testified that neither she nor her husband at any time received any money from either Mrs. Wampole or defendant Bretz as a result of the death claim for Wesley Wampole. Defendant Bretz testified that he at no time shared any legal fees with defendants Shirley Cline or Merrel Cline. Not one witness for either the state or the defendants testified that defendant Shirley Cline obtained any of the settlement proceeds.

The conviction of defendant Shirley Cline of the crime of obtaining money by false pretenses must be reversed for a total failure of proof of one of the elements of the crime as defined by Instruction No. 18. This renders unnecessary discussion of other specifications of error concerning defendant Shirley Cline.

The same situation exists concerning the conviction of defendant Merrel Cline of the crime of obtaining money by false pretenses. As pointed out in the brief of defendants Cline, 'Regardless of what other activity Merrel Cline may or may not have engaged in, he cannot stand convicted of obtaining money by false pretenses unless the State proved beyond a reasonable doubt that he received money as a result of making false representations'. This was required by Instruction No. 18.

The only reference to defendant Merrel Cline's receiving any money was the testimony of Mrs. Roane, an employee of Courtesy, the she was given $2,000 to deposit shortly after Merrel Cline returned from visiting defendant Bretz in Great Falls. The testimony shows that Mrs. Roane quit working for Courtesy in 1973 and that the $2,000 deposit was made in 1972. This was almost two years before the $5,400 state settlement warrant was issued in February, 1974. There is a total absence of evidence that defendant Merrel Cline received any of the settlement proceeds as required by Instruction No. 18.

Accordingly, the conviction of defendant Merrel Cline must be reversed for a total failure of proof of one of the elements of the crime of obtaining money by false pretenses as required by Instruction No. 18. This likewise renders unnecessary further discussion of other specifications of error concerning defendant Merrel Cline.

We now direct our attention to the conviction of defendant Bretz of the crime of obtaining money by false pretenses. At the outset, he contends that the attorney general and his assistants had no authority to prosecute this case and therefore the conviction must be reversed.

Initially defendant Bretz argues that the attorney general's sole authority to prosecute is based on the legislative authorization contained in ...

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18 cases
  • Crist v. Bretz
    • United States
    • United States Supreme Court
    • 14 Junio 1978
    ...P.2d 1191, affirmed the judgment as to Bretz on the ground that under state law jeopardy had not attached in the first trial. State v. Cline, Mont., 555 P.2d 724. In the meantime, the appellees had brought a habeas corpus proceeding in a Federal District Court, again alleging that their con......
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    ...subject is not always the correct view. Randall, 137 Mont. at 542, 353 P.2d at 1058. ¶ 70 We revisited this issue in State v. Cline, 170 Mont. 520, 555 P.2d 724 (1976). In Cline, we concluded that the instruction given by the district court to a potentially deadlocked jury was not of the co......
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