State v. Rush

• Citation: 150 S.E. 740,108 W.Va. 254
• Decision Date: 26 November 1929
• Docket Number: 6615.
• Parties: STATE v. RUSH.
• Court: Supreme Court of West Virginia

150 S.E. 740

108 W.Va. 254

STATE v. RUSH.

No. 6615.

Supreme Court of Appeals of West Virginia.

November 26, 1929

Submitted November 20, 1929.

Syllabus by the Court.

Under Code, c. 159, § 3, it is the duty of the court to complete a panel of 20 jurors, each of whom is free from bias or prejudice towards the accused.

The burden of proof rests upon the party who asserts that a communication is privileged.

In order for an extrajudicial confession to be admissible, it must be voluntary. It is not voluntary when made to one in authority under the assurance that it cannot be used in a criminal proceeding against the person confessing. Under Code, c. 54, § 81a(4) and § 81a (5), as amended by Acts 1925 c. 34, an assistant commissioner of banking is "one in authority" in relation to an officer of a state bank.

Upon a charge of embezzlement, other acts of similar character by the accused, so intimately connected with the one under investigation as to indicate a general criminal design or system, are admissible.

A verdict of guilty in a criminal case will not be reversed here because of error committed by the trial court unless that error is prejudicial to the accused.

Error to Circuit Court, Randolph County.

A. V Rush was convicted of embezzlement of money belonging to a bank of which he was cashier, and he brings error. Affirmed.

A. F McCue and M. M. Neely, both of Fairmont, Myron B. Hymes, of Buckhannon, and E. L. Maxwell, of Elkins, for plaintiff in error.

Howard B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen., for the State.

HATCHER J.

The defendant was found guilty upon an indictment charging him with embezzlement of money belonging to the People's Bank of West Virginia, of which he was cashier. A sentence of ten years in the penintentiary was imposed. He complains here of that verdict and judgment, charging the following errors:

"1. The jury was improperly impaneled. Two jurors were permitted to remain on the jury who should have been excused by the Court.

"2. The testimony of H. Roy Waugh, U. G. Young and J. C. McWhorter violated the rule protecting confidential communications between attorney and client.

"3. The confessions of the defendant, made upon the assurances of a Deputy Commissioner of Banking of West Virginia, in the presence of members of the board of directors of the bank of which the defendant was then cashier, that such confessions could not be used in a criminal case against him, were (a) not voluntary confessions, and (b) were made to persons at the time in authority and should not have been admitted in evidence.

"4. There is evidence of every other kind of irregularity in this record except the one charged against the defendant by the indictment. The evidence is not sufficient in fact and there is no evidence of embezzlement by the defendant of money belonging to the bank as charged in the indictment.

"5. The court refused to give proper instructions to the jury on behalf of the defendant.

"6. The court gave improper instructions on behalf of the State.

"7. The Court erred in refusing to set aside the verdict."

1. Two members of the panel from which the jury was selected were closely related to depositors in the People's Bank. The bank was insolvent, and those affected thereby felt bitterly toward the accused. The two veniremen stated that they were not conscious of bias toward him. That may have been true, but it is only human nature that they should have shared to some extent the feeling of their kinsmen against him. They should have been excluded from the panel. Neither of the two, however, served on the jury which tried the accused.

2. H. Roy Waugh, a director in the bank, attorney, and former circuit judge, J. C. McWhorter, an attorney and former circuit judge, and U. G. Young, an attorney, were permitted to testify as to certain statements to them by the defendant, which were made in the following manner: One afternoon he went to the office of Judge Waugh and announced that he was going to shoot himself, as the bank examiners were there and would discover that he was short in his accounts with the bank over a $100,000, and requested Judge Waugh to take an interest in his wife and child. The judge first "shamed" the accused out of the idea of suicide, and afterwards asked him if the president of the bank knew about the situation. The accused replied that he did not. An effort to locate the president was unsuccessful. Mr. Young, who was a large stockholder in the bank was then called, and the accused stated to him the shortage, with some details. At Mr. Young's suggestion, several directors of the bank were called into conference, and the accused explained the situation to them. It was then decided to secure the advice of T. A. Whalen, an experienced banker at Weston, on what should be done in the best interest of the bank. The accused says he received the impression that Judge Waugh and Mr. Young would represent him as attorneys, and states in support thereof that during the conference in Judge Waugh's office he (the defendant) said that he had no money, and Judge Waugh replied that he did not want any money; that, if he had the money, he would take care of the whole thing himself; that the accused had always been a friend of his and that he would do any honorable thing in the world for him. The accused further states that both attorneys assured him that he should have fair play. Neither Judge Waugh nor Mr. Young understood at the time that the accused was expecting him to act as his counsel. Both attorneys say the accused seemed to be afraid of personal violence, and that he discussed means of making up the shortage. Judge Waugh says "a legal defense or legal matters was not discussed." Mr. Young says that he recalls nothing that was said by the accused indicating an expectation to be represented professionally by him (Young), or that was said by himself to the accused to warrant such expectation. Authority is cited to the effect that a communication to an attorney, made by one who is under the impression that the relation of attorney and client exists, is privileged even though the attorney himself did not understand that he was retained. 28 R. C. L. p. 555. That may be a sound rule, but we are of opinion that ordinarily something more must be shown than the mere assertion of such an impression by the layman. One would not infer here from the statement and request the accused first made upon entering Judge Waugh's office that he desired an attorney, but rather that he was seeking the solace of a friend. His subsequent conduct there--explaining his shortage to the directors of the bank, and endeavoring to find a way to replace the shortage-- opposes the inference that he made the statements to Judge Waugh and Mr. Young under the seal of professional relationship. The evidence indicates that the conference was on financial instead of legal matters. In attempting to have his communication to these gentlemen classed as privileged, the burden is upon the accused. Woodrum v. Price, 104 W.Va. 382, 140 S.E. 346. He has not sustained that burden. Later that same evening he asked Mr. McWhorter to represent him as attorney. Mr. McWhorter refused to do so. Therefore whatever statements were made to Mr. McWhorter were clearly not privileged.

3. Evidence as to the defendant's general shortage with the bank was admitted during the trial. But, when the case was submitted to the jury, it was directed by the court not to consider evidence as to shortage of bank notes, securities, or any other property or effects of the bank except as tending to show the "intent, system and method of the accused in the alleged embezzlement of money." As so limited, we see no error in the admission of the evidence as to the general shortage. 16 C.J. p. 596, § 1159; Underhill's Criminal Evidence (3d Ed.) § 447; Jones' Comm. on Evidence, vol. 2, § 626, p. 1164; Wigmore on Ev. (2d Ed.) § 304. An assistant bank examiner was present at the conference with Mr. Whalen at Weston. The accused was interrogated by the examiner relative to the shortage of the bank. Before responding, the accused asked whether what he should say on that occasion could be used against him in a criminal prosecution. He was assured by the examiner that he did not think it could be so used, and was cited to trials within the examiner's experience when such statements had been declared inadmissible. On that representation, the accused then made certain admissions and statements as to the shortage, which were used against him at the trial.

Code c. 54, § 81a (4) gives to the commissioner of banking (or an assistant commissioner) the power to examine the officers of a bank relative to its solvency. Section 81a (5), as amended by Acts 1925, c. 34, § 81a (5), requires banking officials to disclose fully to the commissioner "all the institution's indebtedness and liability," and makes it a misdemeanor for such officials to refuse to furnish this information. It is a well-established rule that an extrajudicial confession to one in authority cannot be used against the accused unless it was made freely and voluntarily. State v. Zaccario, 100 W.Va. 36, 129 S.E. 763. The power given the commissioner by the above statutes clearly makes him one in authority, within this rule. See generally, Bishop's New Cr. Pro. (2d Ed.) vol. 2, § 1234, and opinion in State v. Stroud, 149 S.E. 674, decided by this court September 17, 1929. The statements made by the accused at the Weston conference were not free and voluntary, but, because of the assurance of the assistant examiner that the statements could not be used against him. Such statements were therefore inadmissible. However, they differed in detail only from the admissions made in...