State v. Burns

• Decision Date: 14 July 1933
• Docket Number: 6014
• Citation: 23 P.2d 731,53 Idaho 418
• Parties: STATE, Respondent, v. OTTO D. BURNS, Appellant
• Court: Idaho Supreme Court

23 P.2d 731

53 Idaho 418

STATE, Respondent, v. OTTO D. BURNS, Appellant

No. 6014

Supreme Court of Idaho

July 14, 1933

CRIMINAL LAW-STATUTORY OFFENSE-STATUTES-UNCERTAINTY-INVALIDITY.

1. Act creating statutory offense must define acts necessary to constitute such offense with such certainty that person may determine whether he has violated law at time he acts.

2. Accused has right to be informed in all criminal prosecutions not only by law but also by information what acts and conduct are prohibited and made punishable.

3. Statute making attorney or collector refusing to pay over money within twenty days after demand guilty of larceny held void for uncertainty (I. C. A., sec. 17-1014).

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Chas. F. Koelsch, Judge.

Appeal from a judgment of conviction of the crime of grand larceny. Reversed and remanded, with instructions to enter judgment exoneretur, discharge the appellant and dismiss the action.

Reversed and remanded, with instructions.

Ben F Tweedy, P. E. Stookey and A. L. Morgan, for Appellant.

A law declaring an otherwise innocent act malum prohibitum, which act has no real or substantial relation to such health morals, safety or other public necessity, is unconstitutional. (Ex parte Dees, 46 Cal.App. 656, 189 P 1050; Ex parte Bales, 42 Okla. Cr. 28, 274 P. 485.)

Bert H. Miller, Attorney General, Ariel L. Crowley, Assistant Attorney General, for the State.

The legislative right to declare any act, in the interest of the public welfare, unlawful, regardless of intent, is well established. (Calder v. Bull, 3 Dall. (U. S.) 386, 1 L.Ed. 648; Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930; People v. West, 106 N.Y. 293, 12 N.E. 610, 60 Am. Rep. 452.)

Section 17-1014, I. C. A., is constitutional and not in conflict with section 1 of the fourteenth amendment to the Constitution of the United States. (16 C. J. 78; Shevlin-Carpenter v. Minnesota, supra; State v. Keller, 8 Idaho 699, 70 P. 1051.)

HOLDEN, J. Wernette, J., and Hunt, D. J., concur. Givens, J., dissents. Budge, C. J., took no part in the decision.

OPINION

HOLDEN, J.

Appellant is a practicing attorney at law at Lewiston, Idaho. In January, 1932, he was employed by one Herman Wolff to prosecute a malpractice claim against a Dr. Carssow. It is claimed by the state that appellant Burns, under the contract of employment, agreed to collect the claim for ten per cent of the recovery, and it is the contention of appellant that the said contract of employment was modified to provide that he should have reasonable compensation for his services in lieu of the ten per cent. The sum of $ 5,000 was collected, without suit, by Burns and a Washington attorney. The promissory notes given in the settlement of the Wolff claim, amounting to $ 2,000, were delivered by Burns to Wolff, Burns retaining the sum of $ 1,500 in cash out of the sum of $ 3,000 paid in the settlement of the claim, for and as a reasonable attorney fee for services rendered Wolff in making the collection, tendering the balance of the cash received in the settlement to Wolff, who accepted it.

September 2, 1932 (after Wolff had accepted the balance of the cash tendered by Burns), a demand was made upon Burns by Wolff in the following words and figures:

"Lewiston, Idaho, September 2nd, 1932.

"Mr. Otto D. Burns,

"Attorney,

"Lewiston, Idaho.

"Dear Sir:--

"Whereas You were employed by the undersigned to affect a settlement of my claim against Dr. O. C. Carssow upon a contingent basis wherein you agreed to affect a settlement and retain from the same the sum of 10% of any amount of money realized or paid by the said Dr. O. C. Carssow in settlement of said claim; and

"Whereas Under and by virtue of said employment, you did, on or about the 17th day of August, 1932, affect a settlement with the said Dr. O. C. Carssow and the Insurance Company in which he was insured, and which settlement was in the sum of $ 5,000.00; and

"Whereas The said $ 5,000.00 was paid to you as follows: $ 3,000.00 in cash and $ 2,000.00 in notes, made and executed by the said Dr. Carssow, all of which were duly and regularly authorized by the undersigned; and

"Whereas You have delivered the said notes to me, aggregating in all the sum of $ 2,000.00, and $ 1,000.00 in cash, and have in addition thereto, in accordance with my instructions, paid to LeRoy LaFollette, due him for assisting you in affecting said settlement in accordance with my agreement with him; and

"Whereas There is now due and owing by you to me the sum of $ 1,000.00 of said money procured by reason of said settlement, and which sum you have retained since the 17th day of August, 1932, and have refused to pay me;

"Now Therefore, DEMAND is herewith made upon you under the provisions of Section 8191 Idaho Compiled Statutes, and you are required under this demand to pay me the said sum of $ 1,000.00 which you still retain from the moneys collected from the said Dr. O. C. Carssow in the matter of said settlement, within twenty (20) days hereof.

"(Signed) HERMAN WOLFF."

September 27, 1932, a criminal complaint was filed in the probate court of Nez Perce county, a warrant of arrest was issued for Burns, he was arrested, given a preliminary hearing in that court and held to answer in the district court for that county on a charge of grand larceny.

December 6, 1932, an information was filed against appellant in the district court for Nez Perce county, the charging part of which is in the following words and figures:

"That the said Otto D. Burns is now and was at all times in this information mentioned, a duly qualified, licensed, acting and practicing attorney at law maintaining an office as attorney at law in the City of Lewiston, Nez Perce County, Idaho; that on or about the 15th day of January, 1932, Herman Wolff, employed the said Otto D. Burns as an attorney at law to represent him in collecting a certain claim and demand due the said Herman Wolff from one O. C. Carssow; that the said Otto D. Burns accepted said employment for the purpose of effecting a settlement and collecting said claim for the said Herman Wolff and agreed to accept ten per cent (10%) of any monies received in settlement of said claim as full compensation for his services rendered or to be rendered for the said Herman Wolff in the course of his employment as aforesaid; that the said Herman Wolff agreed to pay said Otto D. Burns ten per cent (10%) of any monies that might be realized on said claim by the said Otto D. Burns; that thereafter on or about the 17th day of August, 1932, at Lewiston, Nez Perce County, Idaho, a settlement was agreed upon and effected wherein and whereby the said Herman Wolff received the sum of Three Thousand Dollars ($ 3,000.00), in cash and promissory notes aggregating in all the sum of Two Thousand Dollars ($ 2,000.00), making a total settlement on said claim of Five Thousand Dollars ($ 5,000.00), which notes and monies were delivered to Otto D. Burns as attorney for Herman Wolff; that on the same day in Lewiston, Nez Perce County, Idaho, the said Otto D. Burns turned over and delivered to Herman Wolff the promissory notes in the sum of Two Thousand Dollars ($ 2,000.00), and Nine Hundred Ninety-Eight and no/100 ($ 998.00) Dollars in cash, and retained the sum of One Thousand Five Hundred Dollars ($ 1,500.00) out of said settlement in cash, and has failed, neglected and refused to pay over to the said Herman Wolff the balance due him under the terms of said employment as heretofore set forth; that the said Otto D. Burns was entitled to the sum of $ 500.00 by virtue of his contract of employment and for services rendered and that One Thousand Dollars ($ 1,000.00) of the One Thousand Five Hundred Dollars ($ 1,500.00) retained by the said Otto D. Burns is due and owing to the said Herman Wolff under the terms of said contract of employment.

"That on or about the 17th day of August, 1932, the said Herman Wolff orally made demand upon the said Otto D. Burns for all monies due the said Herman Wolff under the terms and conditions of said contract of employment and that thereafter on the 2nd day of September, 1932, the said Herman Wolff, in writing, made and served a demand upon the said Otto D. Burns under the provisions of Section 8191 of the Idaho Compiled Statutes for the payment of said One Thousand Dollars ($ 1,000.00) collected as aforesaid; that the said Otto D. Burns unlawfully, feloniously, knowingly and intentionally neglected and refused to pay over said money due the said Herman Wolff or any part thereof, and has continued to refuse and neglect to pay over the same or any part thereof and still refuses and neglects to pay over the same or any part thereof to the said Herman Wolff and that more than twenty (20) days have elapsed since the said demand for the payment of said money was made upon the said Otto D. Burns contrary to the form of the statute in such case made and provided."

The information was based upon and Burns was prosecuted under sec. 17-1014, I. C. A., reading as follows:

"Refusal of attorney or collector to pay over money.--Every attorney-at-law, agent, collector or other person who collects or receives any money or property...