State v. Dilworth

• Decision Date: 24 June 1968
• Docket Number: 10389,Nos. 10387,s. 10387
• Citation: 159 N.W.2d 795,83 S.D. 363
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. William R. DILWORTH and Lester W. Flake, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 795

159 N.W.2d 795

83 S.D. 363

STATE of South Dakota, Plaintiff and Respondent, v. William R. DILWORTH and Lester W. Flake, Defendants and Appellants.

Nos. 10387, 10389.

Supreme Court of South Dakota.

June 24, 1968.

Rehearing Denied July 30, 1968.

Frank L. Farrar, Atty. Gen., Tony Weisensee, Horace R. Jackson, Spec. Asst. Atty. Gen., Pierre, for plaintiff and respondent.

John E. Burke and Gene E. Pruitt, Sioux Falls, for defendants and appellants.

BIEGELMEIER, Judge.

Defendants Dilworth and Flake were conjointly indicted and convicted for fraudulently appropriating and converting to a use not in the due and lawful execution of their trust $7,000 of the Commonwealth Investment Corporation of which they were officers, directors, agents and stockholders contrary to SDC 13.4003 of the Code of 1939, commonly known as embezzlement. The State claimed defendants, while actively in charge of Commonwealth as President and Vice President and General Manager, committed the embezzlement by diverting such funds to Small Business Investment Corporation hereafter sometimes called SBIC, a corporation they organized in Colorado with an office at 1650 Wilshire Blvd., Los Angeles, California; that SBIC was organized and operated to further the ends of their plan and merely a method of procuring such funds for their own uses. The evidence, involving Commonwealth, SBIC and several other corporations and their financial and business transactions, is much involved and will be detailed later.

I.

Defendant Dilworth assigns as error the admission in evidence of a transcript of a hearing held in the matter of SBIC on June 23, 1965 at Los Angeles, California before the Division of Labor Law Enforcement of that state, claiming 'Dilworth's admission of ownership in the entity Small Business Investment Corporation, a California corporation (SBIC)' was 'unconstitutionally elicited in violation of the constitutional privilege against self-incrimination.' Dilworth's objection states it was an investigatory proceeding with criminal penalties, that he was not under (the present) indictment at that time and use of it would in effect be 'compelling him to testify against himself without proper constitutional safeguards * * * recently * * * enumerated by the Supreme Court.' We assume the objection to Art. VI, § 9, of the S.D. Constitution granting the privilege against self-incrimination. This privilege is not confined to criminal matters but extends to all manner of proceedings in which the testimony is to be taken and protects both witnesses and parties. Merely being compelled to appear in obedience to a subpoena and be sworn is no violation of the constitutional privilege and if the witness testifies he will be deemed to have done so voluntarily. These were doctrines laid down in State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455 cert. den., 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768, where, over objections on similar constitutional grounds, the court held testimony theretofore given under subpoena in a trial of a civil action was admissible in the later criminal action as it is the right of a party in a civil action to call a witness and interrogate him. Indeed, this is a statement of the fundamental maxim recognized for more than three centuries that the public has a right to every man's evidence and any exemptions which may exist are distinctly exceptional, being in derogation of the positive general rule. 8 Wigmore, Evidence § 2192 (rev. 1961). This is not to say the general statement may impair any constitutional privilege, such as that to remain silent and refuse to testify. This privilege of silence is for the benefit of the witness and is deemed waived unless invoked. A witness entitled to claim that privilege cannot testify and then contend he is deprived of a constitutional right. Wigmore further states, however, 'Where the witness waives (the privilege) by answering, his answers may be Afterwards used against him, because the privilege, in disappearing, disappears completely.' 8 Wigmore, Evidence § 2276(5).

Dilworth makes an assertion the California hearing involved an alleged criminal act. Nothing in the record leads to that conclusion, nor does defendant point to any facts or cite any law to support it. The purpose was not stated though it indicates some employees of the corporation had made claims for wages due and the validity of these was discussed at the hearing. From our examination of pertinent sections of the California Labor Code and opinions cited by the State we conclude this was an administrative proceeding of the wage claims made against the employer corporation (not Dilworth) under Section 92 of the California Labor Code and unrelated to any criminal acts. See Ex Parte Trombley, 31 Cal.2d 801, 193 P.2d 734, and People v. Hampton, 236 Cal.App.2d 795, 46 Cal.Rptr. 338.

Two other matters deserve mention. As in State v. Sinnott, supra, there is 'no indication that the civil action (here administrative hearing) in which appellant testified was brought to secure evidence of his guilt of a crime.' Statements he was President, owned 40% Of the stock and other voluntary testimony of SBIC's and other corporations' affairs at this hearing with no hint of any criminal act were far removed from and prior to the time the embezzlement prosecution was commenced. It further appears after one off-the-record break, Dilworth testified he was with the Bank of America 26 years, and after another the Commissioner advised him he had not informed him as to his rights here, to which Dilworth stated, 'Oh, I understand'. Then followed:

'Q You have a right to counsel and you have a right not to make any statement that may tend to incriminate you. Now, these statements have been made and what is your position now?

'A The truth is the truth, Mr. Pierce. I have nothing at all to hide and I know that I have an obligation to pay these things. I intend to do so as soon as it is humanly possible. Mr. Callahan, I am sure, felt that I was telling him the truth when I told him this'.

One cannot read that record and come to any conclusion but that Dilworth not only testified willingly, but that he was an adept and intelligent witness who gave the impression he wanted to cooperate with the Commissioner, yet resulted in giving very little definite evidence on the subject under inquiry and ended by taking back with him the very records he had been directed to produce. Exhibit 15 was properly admitted in evidence as State v. Sinnott indicates. ¹ The State called 17 witnesses, many under subpoena and court order, who testified as to their employment and official capacity in many banks and corporations. Adopting defendants' position would bar use of their admissions at some future trial.

Defendants cite State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731, where the court discussed the right of defendant in a criminal action 'to defend * * * by counsel' guaranteed by Art. VI, § 7, S.D. Constitution and 'Assistance of Counsel for his defense' by the Sixth Amendment to the U.S. Constitution, also Spevak v. United States, 158 F.2d 594, cert. den. 330 U.S. 821, 67 S.Ct. 771, 91 L.Ed. 1272, and United States v. Lavelle, 3 Cir., 306 F.2d 216, of similar import. They are inapposite for defendant Dilworth had counsel in this criminal action and they do not apply to nor hold counsel is required to appear for a witness at a labor hearing. Their quotation from State v. Hinz, 78 S.D. 442, 103 N.W.2d 656, concerned in-custody confessions or admissions under the due process clauses of Art. VI, § 2, S.D. Constitution and the Fourteenth Amendment to the U.S. Constitution. That question is not presented.

II.

Defendant Flake, appearing by separate counsel, objected to Exhibit 15 for the reason it involved proceedings in California wherein Dilworth was questioned when he was not then a defendant in this criminal action, had not been indicted, was not properly advised that any statement he made might be used against him which would invade his (Dilworth's) constitutional rights. The only objection that merits discussion is the attempt of Flake to claim Dilworth's constitutional privilege. This claim of privilege can be made solely by the person whose privilege it is and is purely personal to himself. 8 Wigmore, Evidence § 2196. Flake therefore had no right to claim it on his behalf. He also contends on appeal several other grounds such as his constitutional right to be confronted by witnesses against him, denial of equal protection of the law under Art. IV, § 2, U.S. Constitution, violation of the hearsay rule and of due process of law. None of these grounds is specified as to the offer in the trial court and the grounds of the objection being particularly stated, the court has said all others are deemed waived. State v. Leehman, 2 S.D. 171, 49 N.W. 3. We have held the evidence properly admitted as to his co-defendant Dilworth and if Flake desired some limitation of its admission as to him, he should have so requested.

III.

The claim of lack of corroboration of Exhibit 15 has no merit, as corroboration was both unnecessary and ample.

IV.

Both defendants assert error in giving Instruction 15. Among other things it advised the jury that admissions made by a defendant were to be considered if the jury believed beyond a reasonable doubt they were freely and voluntarily made. Dilworth's trial court objection was he had testified in his own behalf and the instruction was therefore immaterial. His testimony did cover most of the facts as to his connection with SBIC and much more of his familiarity with and control of that corporation. If Exhibit 15 was then immaterial it was not error to give the instruction. The further objection that it suggested the jury give particular attention to everything Dilworth said and thus prejudicial has no merit. The instruction did not specifically refer to the Exhibit but to any admissions made.

Flake urges the only purpose of...