the voter's choice without intimidation or to his office. coercion by any one. Suppose in a given precinct the election board is made up of men of the highest integrity; that both parties are represented upon the board by officials of each party's selection; that the voters in such voting precinct are all employed by a coal company, or railroad company, or other large employer of labor; that the officials of such company, for some reason, are vitally interested in the selection of a given official; that the employés deem it advisable to select his opponent, and at such election secretly vote for their choice. The candidate of their selection is elected on the face of the returns by a few votes. The rule prevails in the courts for which appellees contend. The defeated candidate resorts to the courts, alleging that in the given precinct all the voters voted for him "and the returns come up for the other man." The officials of the employing company call upon the employés of such company to answer in court as to how they voted. Suppose they refuse to testify, or testify truthfully, might not their positions be imperiled, if the interest of their employers in the premises was intense? Or, on the other hand, suppose that, in order to hold their jobs and provide sustenance for their families, they elect to testify falsely, would not their testimony, given under coercion, result in the selection of an officer in the courts who was not fairly elected at the polls? In this case the court did not resort to the ballots, which, so far as we are informed, were safely preserved, in the manner provided by law, and are the identical ballots cast by the individual voters; presumably these ballots are in accord with the returns made by the officials; presumably the Democratic candidates were represented by challenger, whose duty it was to see that the ballots cast were deposited in the box; that such party had, upon the election board, a clerk of its own selection; such party had the right under the statute to demand that the votes be counted in public and a reasonable number of voters from each party could have entered the voting place and have watched the count. The statutes provide punishment for election officials who disregard its provisions, and, in the absence of a clear showing of fraud, it is not to be pre sumed that election officials have violated their oaths and statutory duties. So far as this record shows, the judges and clerks of election were men of integrity and attempted to discharge their duty in an impartial manner. They may have been honestly mistaken as to the time when the polls were opened and a better view of the interior of the room might have been provided; but no objection in this regard was interposed by any one at the time the election was held, further than a demand by the Democratic election judge that he be inducted in When he was refused admit tance because his place had been filled by another man, because he failed to arrive on time, no further objection was made, nor any attempt made to show the board that it had opened the polls prematurely. The present case affords sufficient example of the wisdom of the rule of law announced. Shortly after this election a man named Bernardo Faulkenrich procured from some 95 voters affidavits to the effect that they had voted for the Democratic candidates for justice of the peace and constable. Many of the voters who voted at this election testified that they were unable to read and write, some saying that they voted a ticket with a rooster on it, and others that they had not looked at their ticket, but had accepted it from a worker at the polls, all testifying, however, that they had voted or intended to vote the Democratic ticket. Mr. Faulkenrich, it appeared, was in charge of the constructing of a highway in this precinct upon which, either before or after the election, many of these same voters were hired as employés. All willingly made the affidavits requested by Mr. Faulkenrich. Whether gratitude for having been given work by Mr. Faulkenrich, or whether fear of losing their jobs in case they failed to make the affidavits had anything to do with their actions in the premises, is not clear from the record. But it is apparent that by reason of his position in the community and his right to discharge and hire employés on the roads, the opportunity for coercion and intimidation existed. With the secret ballot, of course it would not be possible for an employer to know how his employés voted, but with an opportunity to hold the election anew in a court where the testimony is necessarily given in public and becomes a public record, it is impossible for the voter to preserve his right to secrecy as to the candidates for whom he voted. The above illustration affords ample reason for the rule which precludes the court from going behind the returns and ballots in the absence of fraud to determine how the individual voter voted in order to impeach or invalidate the returns. That a court might so do where there is competent evidence of fraud and corruption sufficient to invalidate the returns and ballots decide. We hold that the evidence of a voter is another question not necessary for us to as to how he voted at an election is incompe tent in a contested election case in the abtion on the part of the election officers, sufsence of proof establishing fraud or corrup ficient to invalidate the election returns and the original ballots. the trial court will be reversed and the cause For the reasons stated the judgment of remanded, with instructions to enter judgment for the contestees; and it is so ordered. HANNA and PARKER, JJ., concur. (48 Utah, 252) store. Hearing the crash of the broken glass, STATE v. BREWER. (No. 2859.) Allen left the clubhouse to investigate and (Supreme Court of Utah. July 10, 1916.) learn the cause of the disturbance. What then occurred until the shooting took place 1. CRIMINAL LAW 747-EVIDENCE-SUFFICIENCY-AUTHENTICATION OF LETTER. is related by one of the parties, a Miss HanWhether the accused wrote an incriminat-sen who was with Allen in the clubhouse, as ing letter was a jury question, where he denied follows: doing so, but two officers testified that he had admitted its authorship. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1714, 1727; Dec. Dig. 747.] 2. CRIMINAL LAW 598(2)-CONTINUANCE NECESSITY OF DILIGENCE-SECURING WITNESS. Denial of accused's request for a continuance in order to secure a witness is not error, where no diligence on his part is shown. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1336, 1341; Dec. Dig. 598(2).] "Miss Christian and I were looking through the window. Allen left your presence there in the club We stayed inside. Q. After Mr. building, where did you next see him? A. With his head through the broken window-his head was all through, and I think just part of his shoulders. * * At that instant there was a shot fired, * * and Mr. Allen dropped from the window. There was an interval, and two more shots were fired. There was some little time in fact. One shot was fired after I got outside." The evidence shows that Allen was shot three times, and died almost instantly from 3. CRIMINAL LAW 1166(9) APPEAL HARMLESS ERROR-REFUSING CONTINUANCE. The defendant and the wounds inflicted. Denial of the continuance did not prejudice one De Pretto were suspected of having comaccused, where he testified that he had not mitted the crime, and were later apprehendcommunicated with the witness and did noted by the officers. De Pretto was arrested in know where she was. [Ed. Note. For other cases, see Criminal Montana, and the defendant in Memphis, Law, Cent. Dig. §§ 3111, 3112; Dec. Dig. Tenn. De Pretto was tried and convicted for 1166(9).] the crime. His case was recently before this Appeal from District Court, Salt Lake court on appeal. State v. De Pretto, 155 Pac. County; M. L. Ritchie, Judge. The state's evidence tended to show Harry Brewer was convicted of murder, that Brewer, the defendant, voluntarily conand he appeals. Affirmed. J. J. Whitaker and P. P. Jenson, both of Salt Lake City, for appellant. A. R. Barnes, Atty. Gen., and E. V. Higgins and G. A. Iverson, Asst. Attys. Gen., for the State. MCCARTY, J. The defendant was tried and convicted in the district court of Salt Lake county of first degree murder. From a judgment imposing the death penalty he has appealed to this court. 336. fessed to an officer, who had him in custody, tioned. Defendant testified in his own be- was held on a charge of burglary, to Utah; As disclosed by the record, over which there is no controversy, Eugene Allen, a young man, was, on the night of April 15, 1914, shot to death by a highwayman or hold-up who, at the time, in company with another person, was in the act of burglariz-cers to remove him from Memphis, where he ing a store at Bingham Canyon, this county, known as the Miners' Mercantile Company store. It seems that the two bandits mentioned, on the night in question, came to the store, walked into a small room connected with and at the rear of the main building, and with drawn revolvers compelled an employé of the store, who happened to be in the room writing a letter, to hold up his hands. While one of the highwaymen stood guard over the employé, the other one left the room and went to another part of the building and broke a window, through which he entered the store. At this time Eugene Allen, who was an employé of the company mentioned, and two other employés were in a clubhouse, that is in close proximity to the store building, and were in a position from which they could see the window through which the highwaymen entered the lows: The "Dear Friend: I hope this will catch you 1 am in a hell of a shape and the only chance 1 got to save my neck is to beat the joint if you can locate Lou and tell him to come up here and take me out that is the only chance I got the way to do it is to stick the joint up at night there is only two men on at night I am on first north in number 20 in the county jail not that I am afraid to die but I hate to have these guys git the best of me. Well Tim do the best you can for me, and you will never loose if you come down talk it over with Barrey he may show you some way. Whitey." The evidence shows-in fact the defendant testified that while he was in the county jail awaiting trial he occupied, was confined in, cell No. 20. This letter (State's Exhibit 3) we shall refer to later. Frank De Pretto, the alleged accomplice of defendant in the commission of the crime in question was called as a witness by the defendant, and testified in the case. De Pretto claimed that he had never met the defendant prior to the time of his arrest, and that he (De Pretto) was not in Bingham Canyon at the time the crime in question was committed; that he was not in the state of Utah at that time. On cross-examination he admitted that while he was in the county jail awaiting trial he wrote a letter addressed to friends and relatives of his, wherein he stated, among other things: "They are going to hang me as sure as you are a foot high, so there is no use in you people going to any expense for me at all. * * The defendant denied that he had these conversations with the officers, and further testified that he never saw the letter, and did not know of its existence until it was produced in court. The most that can be claimed for his testimony on this point is that it created a conflict in the evidence and raised an issue of fact which was for the jury to determine. This assignment is there fore overruled. [2, 3] When the case was called for trial, June 18, 1915, defendant interposed a motion for a continuance, supported by his affidavit, in which he averred that he was not "prepared to go to trial on said day, nor will he be for 30 days at least from date, for the reason that one Daisy Hazzard, a resident of Memphis, Tenn., an important witness for the defendant, is not within the state of Utah," and that "if this trial is postponed for 30 days, he can prove by, and the said witness, Daisy Hazzard will so testify, that affiant was not in the state of Utah on the 15th day of April, but was in company of said Daisy Hazzard in British Columbia." No claim was made that defendant had I will tell you about this case. We were blow-used due, or any, diligence to procure the ing up a safe in Bingham Canyon, Utah, and attendance of the witness mentioned in the one fellow would not obey orders, and my partner killed him. We were trying to get $15,000 for ourselves, but we made a failure of it." This letter was evidently offered and admitted in evidence for the purpose of impeaching the witness and thereby weakening the force of his testimony, wherein he claimed he was not in this state when the crime was committed. It is not claimed, nor could it be successfully urged, that the evidence is insufficient to justify the verdict. The confessions of guilt made by the defendant, considered in connection with other incriminating facts and circumstances in evidence, abundantly support the verdict of the jury. [1] The appeal is based on two assignments only. One assignment relates to the admission in evidence of the letter, Exhibit 3, hereinbefore mentioned. When the letter was offered and admitted in evidence objection was made, and counsel now contend that the evidence is insufficient to connect the defendant in any way with the writing of the letter, or to show that it was written in his behalf or with his consent or knowledge. We do not agree with counsel. One of the officers who had the defendant in custody testified in part that after the letter was intercepted he had a conversation with the defendant about the letter. The witness said: "I had the letter in my hand. I asked him why he wrote this letter. He said. 'You can't blame a man for trying to beat it if he can."" affidavit, nor does it appear that he made any effort to take or obtain her deposition. The record shows that the court, on May 1, 1915, made an order, setting the case for trial June 14, 1915. No claim is made that defendant and his counsel were not advised of this order at the time it was made. The court overruled the motion for a continuance. On June 21, 1915, the case was again called for trial, and defendant interposed another continuance, supported by affidavit in which he reiterated the facts set forth in his former affidavit and further motion for a averred: and diligence to have said Daisy Hazzard pres- The court overruled the motion. This ruling is assigned as error. As stated it is not claimed, and the record does not, show, that defendant used any diligence whatever to procure the attendance of the witness. MoreAnother officer testified that he had an over, the defendant, while testifying in his own interview with the defendant about the let-behalf, stated on cross-examination that he ter, and that the defendant said: "I am sorry I sent that letter, and I don't want to get anybody into trouble. I don't want them to come down here. From now on you won't have any more trouble with me." never wrote a letter to the witness; never received a letter from her; never sent a telegram to her; and never received a telegram from her, as stated in his affidavit. And he further testified that he did not "know whether Daisy Hazzard was in Memphis, Tenn., before this trial came up or not," and that he "didn't know anything about where she was." It follows, therefore, from defendant's own testimony that the overruling of the motion for a continuance could not possibly have deprived him of a substantial, or any, right. The judgment is affirmed, with directions to the trial court to fix a day for carrying the judgment into effect. STRAUP, C. J., and FRICK, J., concur. (48 Utah, 89) STATE v. HARCOMBE. (No. 2910.) (Supreme Court of Utah. June 24, 1916.) 1. CRIMINAL LAW 556-EVIDENCE-EFFECT ON PARTY PRODUCING. In a prosecution for embezzlement of money of a law firm, under Comp. Laws 1907, § 4380, relating to embezzlement by a clerk, servant or agent, the state, having produced checks made to the order of clients, received and deposited to his own account by the defendant, as evidence, is bound thereby. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 918, 1258; Dec. Dig. 556.] ·VA 2. EMBEZZLEMENT 8-INFORMATION J. N. Kimball, of Ogden, for appellant. A. R. Barnes, Atty. Gen., and E. V. Higgins and G. A. Iverson, Asst. Attys. Gen., for the State. FRICK, J. The defendant was convicted of the crime of embezzlement, and appeals. In the information it is charged: "The defendant, William W. Harcombe, on or about the month of February or March, Utah, he then and there being the agent and 1915, at Ogden City, Weber county, state of clerk of C. A. Boyd, J. H. De Vine, and Royal Eccles, copartners doing business under the name and style of Boyd, De Vine & Eccles, did fraudulently appropriate to his own use and secrete with a fraudulent intent to appropriate to his own use money in the amount of $375.00, which had come into his control by virtue of his employment as such agent and clerk, said money having been collected by said defendant from one D. Rosenthal, proprietor of the Golden Eagle Clothing Company in Ogden City, was then and there the property of said Boyd, Weber county, state of Utah, and which money De Vine & Eccles." The information is based upon Comp. Laws 1907, § 4380, which reads: "Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to approwhich has come into his control or care by priate to his own use, any property of another virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement." The material undisputed facts, in substance, are as follows: In January, 1913, C. A. Boyd, J. H. De Vine, and Royal Eccles, attorneys at law, at Ogden, Utah, formed a copartnership for the purpose of pursuing the practice of law under the firm name of Boyd, De Vine & Eccles. In connection with the general practice of law, the firm was also engaged in the collection business; that is, they, as Mr. Boyd said, also had a collection department, which, it seems, was under his immediate supervision. In order to give ex[Ed. Note. For other cases, see Embezzle-clusive attention to the general law pracment, Cent. Dig. § 6; Dec. Dig. 8.] 3. INDICTMENT AND INFORMATION SEPARATE COUNTS-ELECTION. 132(4) In a prosecution for embezzlement, where the state to prevent a variance charges the transaction in different counts, it cannot be required to elect upon which count it will ask a conviction until the evidence is before the court and jury from which the nature or character of the transaction may be determined. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 439-443, 445; Dec. Dig. 132(4).] 4. EMBEZZLEMENT 35-INFORMATION-VA RIANCE. In a prosecution for embezzlement under Comp. Laws 1907, § 4380, a conviction of the embezzlement of money cannot be sustained by evidence of the embezzlement of checks. [Ed. Note.-For other cases, see Embezzlement, Cent. Dig. §§ 55-59; Dec. Dig. 35.] Appeal from District Court, Weber County; J. A. Howell, Judge. William W. Harcombe was convicted of embezzlement, and he appeals. Reversed and remanded for new trial. tice, the firm, in the spring or summer of 1914, entered into an arrangement with the defendant, who was a young lawyer at Ogden, to come into the office of the firm for the purpose of attending to certain legal matters for the firm as they should from time to time arise. The defendant was given desk room and all office supplies, including the services of the firm's stenographer, and was to receive for his services $50 per month. He was also to attend to the making of the collections received by the firm from collection agencies and others, and for those services, in addition to said $50 per month, he was to receive one-half of the regular commissions obtained for making the collections. The defendant was to account to the firm of Boyd, De Vine. & Eccles for all collections made by him, and said firm from time to time paid him his share of the commissions. The defendant was to retain and continue to attend to his own private law business. The defendant, it seems, attended to the making of collections, and in conducting that branch of dence of the embezzlement, it is bound by that the business he signed the letters or corre- evidence. We are unable to understand how spondence passing between him and the firm's that evidence establishes the charge that' clients in the name of Boyd, De Vine, Eccles the money represented by the checks was & Harcombe. It also seems that in case the money of the firm of Boyd, De Vine & any papers in connection with said collection Eccles. The money in the bank, on which business were filed in court by him, he also the checks were drawn by Mr. Rosenthal, signed them in that way. Neither one of was clearly and beyond dispute his money. the three members of the firm, however, signed any correspondence or papers except in the regular firm name of Boyd, De Vine & Eccles. Matters ran along in that way until the months of February and March, 1915, when the defendant collected a certain claim from one D. Rosenthal which had been theretofore received by the firm in the regular course of business. The claim against said Rosenthal amounted to $375, the amount stated in the information. On the 8th day of February, 1915, the defendant received a check from said Rosenthal drawn on the Commercial National Bank of Ogden for $100 payable to the order of a creditor to which said Rosenthal was indebted. Two days later the defendant received another check from said Rosenthal for $100 on the same bank and made payable to the order of another creditor of said Rosenthal. On March 16th following, the defendant received two checks more from said Rosenthal, one for $100 and the other for $75, drawn on the same bank and made payable to the same creditors as the other two checks. All of the checks were signed, "D. Rosenthal." The defendant indorsed the names of the creditors to whose order the checks were made payable without any apparent authority so to do and deposited the checks in the bank and received credit in his own name for the amount of the checks. The defendant failed to account either to the firm of Boyd, De Vine & Eccles or to the creditors in whose favor the checks were drawn. The checks were made payable to the order of Rosenthal's creditors and to no one else. The bank had no legal right to pay Rosenthal's money except in accordance with his order which was contained in the checks signed by him. That order authorized the bank to pay money to the creditors named in the checks or to their order. The bank had no authority to pay the bearer of the checks, the defendant. The defendant certainly did not transfer, nor could he have transferred, the title to Rosenthal's money which was on deposit in the, bank and against which the checks were drawn, or any interest therein, or right thereto, to the firm of Boyd, De Vine & Eccles by his wrongful act. What title or right an innocent person might have obtained by receiving the money in good faith from the defendant we need not consider here. It is enough, for the purposes of this case, to know that the defendant neither obtained any right to the money himself, nor did he confer any upon the firm by his wrongful act. There can be no question concerning the bank's legal liability to Rosenthal in failing to pay his money in accordance with his order contained in the checks, should Rosenthal choose to sue the bank and prove that he was prejudiced by its act. From the foregoing, it necessarily follows that the evidence is conclusive that the firm of Boyd, De Vine & Eccles had no legal title in or claim upon the money which Rosenthal ordered paid to his creditors. True, they had a claim for their commission as against Rosenthal's creditors, who were their clients. That claim was merely personal, however, since the firm could not have sued the bank if it had paid the checks precisely as drawn by Rosenthal, for the simple reason that it had no legal interest in them, nor in the money represented by them. Rosenthal exercised his legal right by making his checks payable to his creditors. Having done that, the mere fact that Boyd, De Vine & Eccles had a claim for collection against such creditors, who were their clients, gåve them no right or title to any specific money belonging to Ro After the state had, in substance, proved the foregoing facts, together with the necessary jurisdictional facts, the defendant's counsel requested the court to instruct the jury to return a verdict of "not guilty," for the reason that the state had failed to prove that the defendant was the "agent or clerk" of said Boyd, De Vine & Eccles, and for the further reason that the state had failed to prove that the money which it was charged the defendant had "appropriated to his own use," or any part thereof, was the money of said Boyd, De Vine & Eccles. The court refused to so charge, and the defendant ex-senthal which was on deposit in the bank to cepted to the court's ruling in that regard and has assigned the same as error. his credit. The firm could not have acquired a lien for its services upon the money until [1, 2] Proceeding to a consideration of the it had reduced it to possession, and could acsecond proposition first, we inquire whether quire no lien, under our statute, upon the such firm of Boyd, De Vine & Eccles was cause of action of their clients until they the owner of the money which it is charged had filed a complaint in an action against in the information the defendant "appropri- Rosenthal. The state seems to contend, howated to his own use." The state having pro- ever, that, inasmuch as the defendant was duced the checks which the defendant re- the "agent and clerk" of the firm of Boyd, ceived and deposited as aforesaid as evi- De Vine & Eccles, defendant's possession |
