State v. Hambrick

Decision Date03 August 1948
Docket Number2367
PartiesTHE STATE OF WYOMING, Plaintiff and Respondent, v. GLADYS N. HAMBRICK, Defendant and Appellant
CourtWyoming Supreme Court

Rehearing Denied 65 Wyo. 1 at 55.

APPEAL from District Court, Carbon County; V. J. TIDBALL, Judge.

Gladys N. Hambrick was convicted of embezzlement under 46 counts and she appeals.

Judgment affirmed.

For the Defendant and Appellant, the cause was submitted upon the brief and also oral argument of Carlton A. Lathrop of Cheyenne, Wyoming and W. A. Bryans of Denver, Colorado.

POINTS OF COUNSEL FOR APPELLANT

While the question of a change of venue in a criminal case is within the sound discretion of the trial court, yet it is a substantial right of the defendant to be tried by a fair and impartial jury. When a corporation having more than 50 stockholders is a party to a civil action pending in the county in which the corporation keeps its principal office or transacts its principal business, a change of venue must be ordered if the opposite party makes affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the affidavits of 5 credible persons residing in such county. This statute is applicable only to civil cases, but it clearly defines the policy of the state in protecting the right of litigants to a fair and impartial jury. Baxter v. State, 110 N.E. 456.

A denial of a change of venue under circumstances weaker than in the present case has been held to be error resulting in a new trial in the following cases: Olson vs. State (Neb.) 206 N.W. 1; People v. Lucas (N. Y.) 228 N.Y.S. 31; Hawkins v. State (Ohio) 161 N.E. 284; State vs. Davis (S. C.) 137 S.E. 139; State v Demerly S.D. 227 N.W. 463; Rhodes vs. State (Texas) 294 S.W. 212; State vs. Siers (W. Va.) 136 S.E 503.

It was reversible error for the Assistant County and Prosecuting Attorney, in his argument to the jury, to comment on the fact that defendant had not testified on her own behalf. Art. 1, Sec. 11 of the Const. of Wyoming; Fifth Amendment Const. of the U. S.; Sec. 10-1201, W.C.S. 1945.

It is the general rule in criminal cases that the prosecuting attorney may not comment upon the failure of the accused to testify in his own behalf. The rule forbidding counsel in argument to the jury in a criminal case to comment upon the failure of the defendant to testify is not limited to philippics against him, but extends to any mention of such failure, since indirect and covert references to the neglect of the defendant to take the witness stand may be as prejudicial to his rights as a direct comment upon such neglect. 53 A. J. Pgs. 375, 376. Whitson v. State (Ariz.) 181 P.2d 822.

It was prejudicial error to allow additional names to be indorsed on the informations as witnesses after trial had commenced, and to deny application for a continuance. Sec. 10-602, 603 W.C.S. 1945.

The omission to swear the bailiffs in the manner prescribed by the common law and the statutes before the jury retired to consider their verdict was reversible error. Secs. 10-1315, 15-122, 3-2410, 16-301, W.C.S. 1945; 1 Chitty Criminal Law 632.

The oath taken before the trial omitted the requirement to keep the jury together in a private and convenient place, without food, except such as the court should order, and also that he should not permit any person to speak or communicate with them, nor to do so himself. These provisions were made to protect the jury from improper influences and were deemed so necessary to the proper administration of the law that they were incorporated into the statute. The oath is important in its nature, and, being specifically required, cannot be disregarded. Jackson v. People, 36 Ill.App. 88; Buxton v. State, 89 Tenn. 216, 14 S.W. 480; Dreyer v. Illinois, (U.S.) 47 Law Ed. 80; 39 A. J. New Trial Sec. 33, p. 55; Nicholson v. State, 18 Wyo. 298, 106 P. 292; State v. Rodon, 45 Wyo. 383, 19 P.2d 177.

The defendant was prosecuted under Sec. 9-322, W.C.S. 1945. Under that section it is necessary for the State to prove possession of the money or property by the defendant, and an appropriation of same to her own use. State v. Bemis, 34 Wyo. 218, 242 P. 802. There was no evidence that money was given to the defendant.

It was error for the trial court to permit the State's attorney to make an opening statement which included an argument upon the facts, and to prolong unnecessarily a recitation of facts not pertinent or admissible. People v. Bigge, 285 N.W. 5; 288 Mich. 417.

If the District Attorney be interested, or shall have been employed as counsel in any case which it shall be his duty to prosecute or defend, the court having criminal jurisdiction may appoint some other person to prosecute or to defend the cause. Roberts v. People, 11 Colo. 213.

The principle was long ago laid down that no man can serve two masters. It is not consistent with the public interest that a prosecuting officer may receive personal gain as the result either of the conviction or acquittal of one charged with the infraction of the law, or in connection with the filing of any charge. Neither should the power of the state be used to discover facts or evidence which might result in private profit to the official vested by law with authority to use such power. The very appearance of evil in connection with the administration of public office must be avoided. Callahan v. Jones (Wash.) 93 P.2d 326.

For the Plaintiff and Respondent, the cause was submitted upon the brief of Norman B. Gray, Attorney General, Cheyenne, Wyoming, S. K. Briggs of Rawlins, Wyoming and W. A. Muir of Rock Springs, Wyoming, and oral argument by Mr. Briggs and Mr. Muir.

POINTS OF COUNSEL FOR RESPONDENT

A general verdict and judgment on an indictment containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment. Claasen v. U. S. 142 U.S. 140-146, 35 L.Ed. 966-968; Corin v. U. S. 85 L.Ed. 488-497; Brooks v. U. S. 37 A. L. R. 1407; Evans v. U. S. 38, L.Ed. 839.

It was not error to permit indorsement of another state witness during trial upon a showing by prosecuting attorney that he did not previously know of such witness, where her testimony could not have surprised defendant. State v. Bemis, 34 Wyo. 218.

The statute (Sec. 53, Chap. 73, L. 1890) not requiring a demand and refusal to pay over as an element of the crime of embezzlement by an agent, it is not necessary that such an allegation should appear in the accusation. Edelhoff v. State, 5 Wyo. 19. Evidence of the several conversions was admissible upon the one charge, for the purpose of showing acts of similar nature, to establish guilty knowledge, to exclude the possibility of accident or mistake in the accounting, and to show the felonious intent. State v. Campbell, 42 Wyo. 252.

If money or property is delivered by a third person to an agent or servant for or on account of his principal or master, the agent or servant has the possession, and is in the position of a mere bailee, until he has delivered the money or property to the principal or master, or put it, intending to do so for the principal or master, where it is his duty to put it, and if he fraudulently converts it before this, his offense is embezzlement. Smith v. State, (Okla.) 148 P. 2d. 206.

To constitute embezzlement there must be, as in larceny, a fraudulent intent to deprive the owner of his property, and appropriate the same. The existence of such intent may be inferred from the circumstances of the particular case, and if the act which the statute makes a crime is knowingly or intentionally committed, a criminal intent will be presumed. 20 C. J. 433-435.

It seems to be the general rule that affidavits stating the conclusions of the affiants with no facts to support the conclusions, have little or no weight. State v. Vines, 49 Wyo. 212. The examination of jurors on their voir dire has been said to be the best test as to whether local prejudice exists. On the other hand, a denial of a motion for change of venue is not error where it does not appear that the jurors are biased or prejudiced, but that, on the contrary, their voir dire examination shows that they are not prejudiced or that a fair proportion of them was qualified. 22 C. J. S. 313.

Newspaper articles giving publicity to the crime charged against accused or to matters connected with the prosecution thereof are not alone sufficient to show prejudice warranting a change of venue, even though false and reflecting on accused's character, where there is no showing that the public mind was so inflamed against accused that he could not obtain an impartial trial. 22 C. J. S. 314.

The misconduct of the prosecuting attorney in commenting on the failure to testify does not result in a miscarriage of justice warranting a reversal where the evidence of the defendant's guilt is clearly established.

The weight of authority is to the effect that comments of the prosecuting attorney on the failure of the defendant to testify in a criminal case, though improper, may work no injury where the trial judge promptly intervenes, excludes the comments, and admonishes the jury to disregard them. 3 A. J. 616.

In the absence of a statute the name of the prosecuting witness or other witnesses for the state need not be indorsed on an information; but in some states this is required by statute in order that the witnesses may be called at the trial. The failure to indorse the names of the witnesses, or of all the witnesses, the names of some appearing, is held not ground for quashing, but at most an irregularity, correctable upon terms. 31 C. J. 644.

The attorney for either side is privileged to make an opening statement of what he expects to prove. The...

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  • Addonizio, In re, s. A--62
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    • United States State Supreme Court (New Jersey)
    • December 16, 1968
    ...87 F.2d 377, 109 A.L.R. 1445 (2 Cir.), cert. denied, McMann v. Engle, 301 U.S. 684, 57 S.Ct. 785, 81 L.Ed. 1342 (1937); State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, 198 P.2d 969 (1948); State ex rel. G. M. Gustafson Co. v. Crookston Trust Co., 222 Minn. 17, 22 N.W.2d 911, 916--917 (1946); An......
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    ...trial, late endorsements have been consistently permitted in Wyoming courts. Coca v. State, Wyo., 423 P.2d 382 (1967); State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, reh. denied 65 Wyo. 1, 198 P.2d 969 (1948). In Coca v. State, a homicide case, the prosecutor listed over a dozen additional wit......
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    • United States State Supreme Court of Wyoming
    • June 21, 1989
    ...misdemeanor case since the right to change the judge was mandatory, but to have a venue change was only discretionary. See State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, reh'g denied 65 Wyo. 1, 198 P.2d 969 (1948) and State v. Vines, 49 Wyo. 212, 54 P.2d 826 (1936). 1 Any criminal conviction a......
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    • United States State Supreme Court of Wyoming
    • November 6, 1975
    ...in the community that a fair and impartial trial could not there be obtained. That showing is absent in this record. State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, 666, reh. den. 65 Wyo. 1, 198 P.2d 969 (1948); State v. Spears, 76 Wyo. 82, 300 P.2d 551, 559 (1956); mares v. State, 500 P.2d 530......
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