State v. Wolfe

• Decision Date: 21 March 1936
• Docket Number: 7743.
• Citation: 266 N.W. 116,64 S.D. 178
• Parties: STATE v. WOLFE.
• Court: South Dakota Supreme Court

266 N.W. 116

64 S.D. 178

STATE v. WOLFE.

No. 7743.

Supreme Court of South Dakota

March 21, 1936

Appeal from Circuit Court, Pennington County; John F. Hughes, Judge.

George H. Wolfe was convicted of embezzlement of public funds, and he appeals.

Reversed and new trial granted.

H. F Fellows, of Rapid City, and John T. Heffron, of Deadwood, for appellant.

Walter Conway, Atty. Gen., Benj. D. Mintener, Asst. Atty. Gen., and Francis Parker, of Deadwood, for the State.

BECK Circuit Judge.

This case now comes before this court upon a second appeal. On the previous appeal the judgment and an order denying a motion for a new trial were reversed, with the direction that count II, contained in the information, be dismissed. A new trial was granted as to count I remaining in the information. A sufficient general statement of the facts will be found in 61 S.D. 195, 247 N.W. 407 (1933), where our former decision is recorded. Such opinion has become the law of this case so far as applicable to the record now before us. Downs et al v. Bruce Ind. Sch. Dist. etc. (1927) 52 S.D. 168, 216 N.W. 949.

Upon the case being remanded to the lower court, an order was granted changing the place of trial to Pennington county. The defendant and appellant was duly tried in said county; and the jury having returned a verdict of guilty as charged under count I of the information, judgment was entered accordingly. An appeal was duly perfected from such judgment, and an order denying a motion for a new trial. Upon said appeal, ninety-three errors are assigned as grounds for a reversal of the trial court. For the sake of brevity, these various assignments of error may be grouped, for the purposes of this opinion, as they raise but a few general questions of law that we deem worthy of consideration.

We held, upon the former appeal, that all transactions set forth in the bill of particulars, furnished by the state under an order of the trial court, were barred by the statute of limitations, except what was termed the "Conard transaction" alleged to have taken place on or about January 8, 1927, but which, according to the undisputed evidence, was completed on March 7, 1925. This was a simple transaction involving $500, and complete in itself; the details of which are fully set forth in our former opinion to which reference is now made. The charge based upon the "Conard transaction" is one of embezzlement of public funds. Under the established law of this case, all other transactions included in count I of the information are barred by the statute of limitations; so it is with the "Conard transaction" alone that we are now concerned.

The state offered in evidence, upon the second trial, Exhibit No. 52, which the record discloses was the same instrument designated Exhibit 48 upon the former trial; and which we held was inadmissible under the record upon the prior appeal. This instrument was prepared by one Myers, a state accountant, who had made an audit of the records in the offices of the county treasurer and county auditor of Lawrence county, and covered the tax records of said county for the years 1918 to 1927 inclusive; it contained general information reflecting book shortages and discrepancies between the gross amount of tax collections as shown by the tax receipts issued and the amount of cash entered upon the cashbooks. The instrument was prepared by the witness personally from the records of Lawrence county, which records were received in evidence as a part of the state's case. The court admitted this exhibit, over proper objections interposed by appellant, solely for the purpose of permitting the witness to use it to refresh his recollection while giving oral testimony. The exhibit was not permitted to go to the jury room. We are inclined to the view that it was not error to permit the witness to use this exhibit solely for the purpose of refreshing his memory, so long as its use was confined to proper, competent, and pertinent transactions. State v. Ewert (1928) 52 S.D. 619, 219 N.W. 817; State v. Clements (1901) 82 Minn. 434, 85 N.W. 229; Loose v. State (1903) 120 Wis. 115, 97 N.W. 526.

By numerous and appropriate assignments of error the appellant has challenged the correctness of the trial court's rulings in admitting evidence of prior alleged transactions and shortages under the guise of showing intent, motive, and system.

The state offered evidence of a general character showing alleged shortages resulting from discrepancies between the gross amount of the tax receipts issued by the county treasurer and the amount of cash entered upon the cashbooks of Lawrence county during the years 1918 to 1927 inclusive. No attempt was made to show that the appellant actually obtained the physical possession of, or appropriated, the money reflected by these shortages; nor does it appear from the record just what became of the money, if in fact it was collected. Some specific transactions were dealt with, principally the "McCord Brady items," the "J. Lowe items" and the "W. E. Lowe items." The transactions involving these items occurred in 1921 and 1922 and at a time when appellant was county treasurer of Lawrence county. The record shows that tax receipts were manipulated and records juggled; and most, if not all, of the records showing such manipulations are in the handwriting of the appellant.

The general rule is: "that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, wholly unconnected with that for which he is put upon his trial, must be excluded." 8 R.C.L. 198.

There is, however, an exception to the general rule that applies to embezzlement cases and kindred offenses. That exception is that the state may show prior acts and conduct on the part of the accused of like character in order to establish intent, motive, and system. That is, the state may introduce evidence tending to show prior acts of embezzlement and misconduct of the kind involved in the case on trial, provided, however, that such prior acts and conduct bear a direct relation to the offense for which the accused is on trial. While this case is in the twilight zone because of the fact that the appellant was on trial for the "Conard transaction" alone, yet we believe the case comes within the exception and the rule announced in State v. Ewert, supra. Also, see, State v. Downer (1912) 68 Wash. 672, 123 P. 1073, 43 L.R.A. (N.S.) 774, also the note in the L.R.A. volume following the reported case; and note, 62 L.R.A. beginning at page 264; also State v. Heaton (1927) 56 N.D. 357, 217 N.W. 531.

The court properly limited the purpose for which this evidence was received in its instructions to the jury, and while much of the evidence was remote and somewhat vague, yet we believe no prejudice resulted and that the case should not be reversed because of the reception of this evidence.

Error is predicated upon alleged misconduct of the state's counsel and improper comment on the part of the trial court and the prosecutors when the state presented its case to the jury. The following quoted from the record fully discloses the situation with which we are now concerned:

"That during the opening argument to the jury counsel for the state in commenting upon the failure of the defendant to take the witness stand and testify on his own behalf said: 'That the defendant Wolfe has failed to take the witness stand and explain, and the only reason Wolfe has not taken the witness stand and denied his connection with the charge against him is because he is guilty and he knows he is guilty.' That objection and exception was immediately taken by defendant's counsel to such statement as misconduct of counsel and outside and in violation of the defendant's statutory and constitutional rights. That immediately upon exception being taken the court overruled such exception of the defendant and said to the jury: 'The jury will not, of course, take the statement of the States Attorney into consideration as a fact of any evidence in the case.' Exception allowed.

"That in his closing argument to the jury, Francis J. Parker, special prosecutor for the state, in commenting upon the failure of the defendant to take the witness stand in his own behalf, said to the jury: 'What do you think of the defendant not taking the stand, he is admitting he committed this crime.' That immediately thereupon defendant's counsel objected and excepted to such statement as misconduct of counsel, as prejudicial, as a misstatement of the law and of fact, and as improper argument. That immediately thereupon the court overruled such exception and stated: 'Defendant's counsel admitted that he (Wolfe) made all these entries,' and in other words that all the exhibits that the state offered evidence of to show were in his handwriting. That defendant's counsel immediately thereupon excepted to such statement by the court; and further excepted to such statement by the States Attorney for the reason that defendant's guilt is one of the issues in this action which arose by defendant's plea of not guilty, that such statement by the special prosecutor was contrary to the instructions of the court, and a matter upon which the court has instructed the jury that they shall find, and misconduct of counsel, as improper argument. That thereupon the court overruled the latter exception and advised counsel to proceed with the argument."

In fairness to the trial court it should be stated that there is a stipulation in the record to the effect that the appellant conceded that the exhibits offered in evidence by the state were in appellant's...