State v. Kavanaugh

My principal reason for dissenting from the prevailing opinion in this case is that the indictment does not charge that the defendant obtained Mrs. Hancock's shares of American Gas Power Company stock by means of a false pretense or false representation concerning a past or present fact. On the contrary, the accusation is merely that Kavanaugh obtained the shares of stock under a contract with Mrs. Hancock, by which he agreed to exchange her shares of stock for 120 shares of Louisiana Power Light Company stock within 30 days, or return to Mrs. Hancock her shares of American Gas Power Company stock. It is not charged that Kavanaugh represented to Mrs. Hancock that he already owned the 120 shares of Louisiana Power Light stock. On the contrary it is stated in the contract which Kavanaugh is accused of violating that he was the owner and holder or would become the owner and holder within fifteen days of the 120 shares of the Louisiana Power Light stock. It is sufficient to say that it was not charged in the indictment or proved on the trial of the case, and is not contended on behalf of the State, that Kavanaugh made any false representation or false pretense with regard to the ownership of the 120 shares of Louisiana Power Light stock.

The record shows that Kavanaugh was a regularly licensed dealer in securities, that he had complied with the requirements of the statute on the subject, Act No. 177 of 1920, and held the necessary certificate signed and issued by the Secretary of the Louisiana Securities Commission. His latest certificate was dated June 13, 1934, was "good for one year" from that date unless sooner revoked, and was in force on the 7th of February, 1935, — the date of the transaction complained of in this prosecution.

The allegation in the indictment that Kavanaugh "converted said American Gas Power Company stock to the use and benefit of the said A.J. Kavanaugh" partakes of a charge of embezzlement; but the record discloses that if that crime was committed it was committed in Caddo Parish — in Shreveport — where the alleged conversion took place — if in fact it did take place. The defendant is not charged with embezzlement in this prosecution. If he were charged with embezzlement the district court in Lincoln Parish would not have jurisdiction. In a prosecution for the unlawful conversion of the property or money of another the venue is in the parish where the conversion took place. State v. Sullivan, 49 La.Ann. 197, 21 So. 688, 62 Am. St.Rep. 644; State v. Nahoum, 172 La. 83, 133 So. 370; State v. Smith, 194 La. 1015,195 So. 523. That was the basis for the defendant's exception to the jurisdiction of the court in Lincoln Parish; which exception was overruled; and which ruling was complained of by way of a petition for a writ of certiorari; which was denied by a majority of the members of this court on May 25, 1936, — nearly seven years ago. In fact an affidavit was filed in Caddo Parish, by a son of Mrs. Hancock, charging Kavanaugh with embezzlement committed in that parish on the same facts on which the present indictment is founded. This prosecution therefore is not for the crime of embezzlement but for obtaining the shares of stock of Mrs. Hancock by means of the so-called confidence game, which, as set forth specifically in the indictment, was merely a business transaction in which Kavanaugh failed to fulfill his promise.

Act No. 43 of 1912, which makes it a crime to obtain or to attempt to obtain money or property by means of any false or bogus check, or by any other means, instrument or device, commonly called the confidence game, is valid legislation so far as it makes it a crime to obtain money or property by means of a false or bogus check, because a "false or bogus check" has a meaning which is well defined and well known by everybody. But my opinion is that this statute is unconstitutional so far as it purports to make it a crime to obtain or to attempt to obtain money or property by any other means, instrument or device, said to be "commonly called the confidence game." The statute does not define or determine what "other means", or what kind of instrument or device, shall be deemed a "confidence game", subjecting the offender to imprisonment as a felon. Obtaining or attempting to obtain money or property by means of a so-called confidence game is not a common-law crime. And it is well settled that no act or conduct, however reprehensible, is a crime in Louisiana unless it is defined and made a crime, clearly and unmistakably, by statute. State v. Williams, 7 Rob. 252; State v. King, 12 La.Ann. 593; State v. Smith, 30 La.Ann. 846; State v. Peters, 37 La.Ann. 730; State v. Gaster, 45 La.Ann. 636, 12 So. 739; State v. Desforges, 47 La.Ann. 1167, 17 So. 811; State v. De Hart, 109 La. 570, 33 So. 605; State v. Breffeihl, 130 La. 904, 58 So. 763, 40 L.R.A., N.S., 535; State v. Comeaux, 131 La. 930, 60 So. 620; State v. Robinson, 143 La. 543, 78 So. 933; State v. Bischoff, 146 La. 748, 84 So. 41; State v. Mullen, 160 La. 925, 107 So. 698; State v. Schmidt,163 La. 512, 112 So. 400; State v. Williams, 173 La. 1, 136 So. 68; State v. Whitlock, 193 La. 1044, 192 So. 697; State v. Maitrejean, 193 La. 824, 192 So. 361.

My opinion is that Act No. 43 of 1912, so far as it undertakes to make it a crime for a person to obtain or to attempt to obtain money or property by any means, instrument or device, commonly called the confidence game, is not rendered constitutional by the provision in section 2 that in any affidavit or bill of information or indictment for a violation of the act it shall be held to be a sufficient description of the offense to insert the name of the person defrauded or attempted to be defrauded and the manner in which he was defrauded or in which the attempt to defraud was made. That provision in the statute is not effectual, because it is an attempt to confer upon the prosecuting officer or the grand jury the legislative function of defining the crime to be charged in a bill of information or indictment. 12 C.J. 859; 16 C.J.S., Constitutional Law, § 140; United States v. Reese, 92 U.S. 214, 220, 23 L. Ed. 563; Standard Oil Co. of Louisiana v. Porterie, D.C., 12 F. Supp. 100; State v. Comeaux,131 La. 930, 60 So. 620; City of Shreveport v. Price,142 La. 936, 77 So. 883; State v. Brinson, 149 La. 320, 89 So. 18; State v. Gardner, 151 La. 874, 92 So. 368, 369; State v. McClellan,155 La. 37, 98 So. 748, 31 A.L.R. 527; State v. Staub, 182 La. 1040,162 So. 766; State v. Maitrejean, 193 La. 824, 192 So. 361; State v. Whitlock, 193 La. 1044, 192 So. 697. In State v. Comeaux, 131 La. 930, 60 So. 620, the doctrine was stated briefly, thus: "In Louisiana all crimes are statutory, and the determination and definition of the act, which are punishable as crimes, are purely legislative functions."

In the case of State v. Theriot, 139 La. 741, 72 So. 191, L.R.A. 1916F, 683, in 1916, Judge Winston Overton, afterwards a justice of this court, held, in what this court characterized as a well-considered opinion, that the provision in Act No. 43 of 1912, making it a crime to obtain or attempt to obtain money or property "by any other means, instrument or device, commonly called the confidence game", was unconstitutional. It was stated in the brief of the attorney general, quoted in the opinion rendered by this court, that the constitutionality of the provision in the act relative to false or bogus checks was not questioned. Judge Overton's so-called "well-considered opinion" was reversed by this court on the authority of three Illinois cases in which the supreme court of that state declared constitutional a statute of Illinois. In this Theriot case the author of the opinion pointed out that a Missouri statute similar to the Illinois statute was declared unconstitutional by the Supreme Court of Missouri in State v. Cameron, 117 Mo. 371, 22 S.W. 1024, on the ground that the act did not inform the defendant of the nature and cause of the accusation. And the author of the opinion in the Theriot case said that no such objection could be urged against Act No. 43 of 1912 because in section 2 the act required the indictment to set forth the manner in which the party was defrauded or in which the attempt to defraud was made. The author of the opinion did not refer to any of the many decisions of this court maintaining that the defining of crimes is a legislative function, which cannot be delegated to or exercised by a district attorney or grand jury. And the author of the opinion in the Theriot case said, in conclusion, this [139 La. 741, 72 So. 192, L.R.A. 1916F, 683]: "The question of the constitutionality of Act 43 of 1912 is debatable, and may be doubtful; but the opposition between the Constitution and the law is not sufficiently clear and strong to warrant us in decreeing their incompatibility."

I dissented from the decision in the Theriot case, and I adhere to the opinion that the decision was fundamentally wrong, particularly in ignoring the doctrine that the defining of crimes is a legislative function.

In State v. Hill, 160 La. 579, 107 So. 433, it was held that the indictment for attempting to obtain $200 by means of the confidence game was valid; but the facts stated in the indictment were that the false representation on which the attempt was made was a false representation of a present fact, namely, that a roll of bills which the defendants pretended to have found contained $2,200, which they proposed to exchange with the prospective victim of the fraud for his $200. In that case I dissented because the decision was contrary to the doctrine — which was not even referred to — that the defining of crimes is a legislative function.

In State v. Echeverria, 163 La. 13, 111 So. 474, the charge was that the defendant obtained property fraudulently by means of the confidence game, the means used being a false or bogus draft. On the theory that a bogus draft was the same as a bogus check I concurred in the decree in that case.

In the case of State v. Hart, 195 La. 184, 196 So. 62, 65, the defendant was charged with the crime of obtaining $27,000 by means of the confidence game, but the only question presented was the question of venue. The facts set forth in the indictment showed that the $27,000 was obtained by false pretenses or representations of past and present facts concerning the amount of the bid for which a contract was let to Hart and his associates in the contracting business. In the course of the opinion it was said: "It is pointed out that the crime is analogous to the crime of obtaining money or property by false pretenses. 25 C.J. 659, sec. 102." And here the court cited decisions, which are cited also in the prevailing opinion in the present case, in which decisions it was held that the venue in a prosecution for obtaining money by false pretenses was in the parish in which the money was obtained, no matter where the false pretenses were made. In the prevailing opinion in the present case the analogy between obtaining money by false pretenses and obtaining money by means of the so-called confidence game, otherwise than by means of a bogus check, is stated thus: "The jurisprudence is clear that the venue of the alleged crime in a case like the present one is at the place where the money or property was obtained. State v. Matheny,194 La. 198, 193 So. 587; State v. Simone, 149 La. 287, 88 So. 823; and State v. Roy, 155 La. 238, 99 So. 205."

Two of the cases cited were prosecutions for obtaining money by false pretenses.

In the case of State v. Courreges, 201 La. 62, 9 So. 2d 453, 454, from which the court quotes extensively in the prevailing opinion in this case, the prosecution and conviction were, as stated in the opening paragraph of the opinion in the Courreges case, for "obtaining $112 in money by the means of a false or bogus check, or by the means, commonly called, the ``Confidence Game.' The crime is denounced by Act 43 of 1912, page 51."

The statute is valid legislation so far as it denounces obtaining money or property by means of a false or bogus check. That being the accusation in the Courreges case, the dissertation in the opinion in that case, quoted extensively in the prevailing opinion in the present case, on the question of constitutionality of the statute so far as it denounces the obtaining or attempting to obtain money or property "by any other means, instrument or device, commonly called the confidence game", was entirely beside the question in the Courreges case and should not be considered as authority.

The decision in State v. Theriot, 139 La. 741, 72 So. 191, L.R.A. 1916F, 683, and in State v. Hill, 160 La. 579,107 So. 433, was virtually overruled in State v. Whitlock, 193 La. 1044,192 So. 697, where the court held, unanimously, that Section 861 of the Revised Statutes of 1870, Article 786 of Dart's Criminal Statutes, which undertook to make it a crime to attempt to corrupt or to awe a juror in the trial of a pending case, was unconstitutional or ineffectual because the statute did not define the crime but left it to the prosecuting officer or grand jury to define or describe the crime in the bill of information or indictment, thereby attempting to invest the district attorneys and grand juries with a legislative function. The judge of the district court, on that ground, sustained a motion to quash the bill of information. This court, unanimously, affirmed the ruling, and quoted with approval the two concluding paragraphs of the district judge's opinion (193 La. loc.cit. 1049, 192 So. loc.cit. 698), — thus:

"``All criminal statutes must be strictly construed and in the construed penal statutes Courts cannot take into view the motives of the law makers but that are expressed in the statutes. To solicit a juror in the manner as here charged is most assuredly an act that invades the very safeguard of our social order, and is a defect in our criminal jurisprudence requiring Legislative remedy.

"``With regret the Court finds itself forced to sustain the motion to quash.'"

Then the court quoted, in the Whitlock case, from the decision of the Supreme Court of the United States in the case of United States v. Reese, 92 U.S. 214, 220, 23 L. Ed. 563, — thus: "``Every man should be able to know with certainty when he is committing a crime. * * * It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. * * *'"

And in Whitlock's case the court quoted from State v. Gardner,151 La. 874, 92 So. 368, 369, where the court had held that the provisions in the "Locke law", Act No. 57 of 1908, purporting to make it a crime for "any person * * * [to] engage in encouraging, promoting, aiding or assisting in the operation of a betting book, or a French Mutual pooling device, upon any kind of horse race or races, or in selling auction pools upon any horse race which are hereby declared to be gambling, or * * * by any other device, encourage, promote, aid or assist any person or persons to bet or wager upon a horse race or races * * *" was unconstitutional and ineffectual so far as it forbade the encouraging of betting on horse races "by any other device".

This court, in affirming the ruling, declared (193 La. loc.cit. 1052, 192 So. loc. cit. 700): "It has long been the rule, constantly adhered to, that criminal statutes must receive strict interpretation, and that such statutes cannot be extended to cases not included within the clear import of their language. In short, that no act is a crime, which is not clearly and unmistakably made a crime by statute. State v. Slave, King, 12 La.Ann. 593; State v. Peters, 37 La.Ann. 730; State v. Gaster, 45 La.Ann. 636, 12 So. 739; State v. De Hart, 109 La. 570, 33 So. 605; State v. Breffeihl, 130 La. 904, 913, 58 So. 763, 40 L.R.A., N.S., 535; State v. Comeaux, 131 La. 930, 60 So. 620; State v. Leroy, 143 La. 186, 78 So. 441; State v. Williams,173 La. 1, 136 So. 68."

And in the Whitlock case, 193 La. at page 1054, 192 So. at page 700, the court cited State v. Maitrejean and State v. Harris and Rhodes, 193 La. 824, 192 So. 361, and, referring to the decision in those cases, declared: "We pointed out that only the Legislature, under the Constitution, was granted the power and authority to define what acts constituted criminal offenses and to provide the penalties for the violation thereof. So that, in the instant case, to construe the words ``or otherwise,' as used in [Section 861 of the Revised Statutes] Article 786 of Dart's Criminal Statutes, as the State has asked us to do, would be indirectly authorizing the various judges, district attorneys, grand jurors and petit jurors to define what acts they considered were prohibited by these two words of the statute. This, of course, would lead to a result equally as unsatisfactory as the present unfortunate situation, which results from the statute being inadequate to cover all cases where persons attempt to unduly influence jurors in the just and honest performance of their official duties."

And in the Whitlock case, 193 La. at page 1055, 192 So. at page 700, the opinion ended with these two paragraphs:

"The observation of the learned trial judge that it is regretted that the statute is insufficient to cover all the reprehensible ways of tampering with jurors, and that the Courts were powerless to remedy this situation, as the matter is one which addresses itself to the Legislature, is appropriate and reiterated by us.

"For the reasons assigned, the judgment of the district court, sustaining the motion to quash and discharging the accused, is affirmed."

I cannot reconcile the sustaining of the motion to quash the bill of information in Whitlock's case with the overruling of the motion to quash the bill of indictment in Kavanaugh's case.

Aside from the proposition that Act No. 43 of 1912 is not valid legislation so far as it purports to make it a crime to obtain money or property by "any other means, instrument or device, commonly called the confidence game", — the definition or description of the offense charged in the indictment in this case does not constitute a crime. Even if Act No. 43 of 1912 might be used as a substitute for the statute (Sec. 813, Rev.Stat. of 1870, Art. 945, Dart's Crim.Stat.) making it a crime to obtain money or property by false pretenses, it is not possible that the legislature intended to do away with the principle that the obtaining of money or property by false pretenses is not a crime unless the false pretenses have reference to a past or present fact. To make it a crime for a person to obtain property or money on the promise to give something in payment or exchange for it would be going back to the days of imprisonment for debt. To hold that a licensed dealer in securities is subject to imprisonment as a felon for obtaining from a customer his or her shares of stock on the promise — and for his failure to fulfill the promise — that the dealer would exchange the shares for certain other shares of stock, or would return to the customer his or her shares within a given time [30 days], would be to hold that in the crime of obtaining money or property by a false pretense or false representation it is not essential that the false pretense or false representation should have reference to a past or present fact. It would be going only a short step further to hold that one who buys something on credit, with the promise either to pay for it or return it within a given time — on the mere "confidence" which the seller has in the buyer's promise — is guilty of the crime of obtaining the property by means of a false pretense or false representation, or by means of the so-called "confidence game", if the buyer fails to pay for or return it within the time stipulated. Perhaps a better example would be the borrowing of money from a bank on no other security than the "confidence" with which the borrower impresses the banker, in the borrower's promise to pay the debt. The fact that the charge made in the indictment in a case like this is embellished with such words as "did wilfully, feloniously and maliciously and unlawfully" does not make the indictment valid if in fact its recitals do not define a crime. The doctrine is too trite to need citation of authority that the words "wilfully", "unlawfully", "feloniously", and "maliciously", in a bill of information or indictment, are mere conclusions of the pleader, depending altogether upon whether the recitals of fact in the bill of information or indictment actually set forth a crime, as defined by statute.

Another ruling in which I do not concur, in the prevailing opinion in this case, is that the defendant should not have been allowed to withdraw his waiver of his right to a trial by jury, when the judge decided that he should be recused, and appointed a member of the bar as judge ad hoc. The fact that the defendant had decided to waive his right to a jury trial and to be tried by the duly-elected judge of his judicial district should not be so binding upon the defendant as to constitute an irrevocable waiver of his right to a jury trial when the duly-elected judge was recused for cause and a member of the bar was appointed as judge ad hoc. The defendant never consented to waive his right to be tried by a jury when his only alternative was to be tried by the judge ad hoc, selected from among the members of the bar. I say this with due respect to the attorney who was selected to preside as judge ad hoc and who overruled the defendant's motion to withdraw his waiver of the right to be tried by a jury. In that respect the ruling of the judge ad hoc was like the erroneous ruling of the district judge in State v. Touchet, 33 La.Ann. 1154, and in State v. Robinson, 43 La.Ann. 383, 8 So. 937, and in State v. Williams, 202 La. 374, 11 So. 2d 701, 702. In the latter case the court commented upon — and quoted with approval — the decision in the Touchet case, thus:

"Touchet was prosecuted for larceny, and on arraignment elected to waive his right to a trial by jury, and was tried by the judge and found guilty. He moved for a new trial, which was granted. Thereafter, he filed a motion stating that since the new trial was granted he had elected and prayed to be tried by a jury. On objection by the district attorney the judge overruled the motion and prayer for a jury trial, ``on the ground that having once elected to be tried by the judge, and having been so tried, it was not in the power of accused, upon the granting of a new trial, to revoke his election and demand a jury trial.' On the second trial by the judge the defendant was convicted again. On appeal this court set aside the conviction and sentence on the ground solely that the judge had erred in refusing to allow the defendant to withdraw his waiver of a jury trial. In the course of the opinion rendered in the case the court stated:

"``We think the judge erred. The right of trial by jury, in criminal prosecutions, is a constitutional right always jealously guarded in Anglo-Saxon jurisprudence. This right arises and exists as to every trial — as well as to that which follows upon the granting of a new trial, as to the ordinary original trial. Being about to be tried in a criminal prosecution, the Constitution invests him with the right of jury trial, of which he cannot be deprived except on his voluntary election. His waiver of jury as to the first trial may be presumed to continue as to the new trial, unless timely application be made to revoke the same; but he cannot be deprived of this right of revocation on timely application. The only limitation on his right would be that his application should be timely — that is, made in such season as not substantially to delay or impede the course of justice. In the present case, the trial might have proceeded before a jury on the day when it was tried before the judge, and the application, made prior thereto, was entirely seasonable, and should have been granted.'"

It was on the motion of the defendant that the regularly-elected judge was recused, but the recusation must have been for a sufficient cause, otherwise there would have been no recusation. Until the judge recused himself the defendant did not know who would be appointed as judge ad hoc. On that subject my opinion is that the statement in the per curiam of the judge ad hoc, on bill of exception No. 7, is not consistent with the decisions which I have cited. The statement of the judge ad hoc is this: "After the writer took the oath and took the bench, the defendant then moved to revoke his waiver of a jury trial and asked that he be granted a jury trial, and the court, being of the opinion that he had already made his election and waived a jury trial, did not at this time have a right to revoke his waiver, the court being of the opinion that the defendant did not have a right to be tried by a specific person, but only had a right to waive a jury trial, which meant that he would be tried by the court, regardless of the person who sat on the bench. In other words, the court was of the opinion that he elected to be tried by the court and that he, thereafter, could not revoke his election, but must abide by his first election. The court being of the opinion further that to permit the defendant to change his mind and switch back and forth on the court to a jury trial, that the practical effect of such a procedure would be to continually postpone the trial of the case, for the reason that in the country parishes of this state, jury terms are only held twice each year, and then for a period of one and two weeks, and that it was for this reason that the court denied the defendant's motion to revoke his waiver of a jury."

The apprehension of the judge ad hoc that if he should allow the defendant to withdraw his waiver of a jury trial he might "switch back and forth on the court to a jury trial" was not a just cause for overruling the defendant's motion to withdraw his waiver of a jury trial, which motion was made by the defendant as soon as the judge ad hoc had taken the oath and ascended the bench.

The fact that to allow the defendant to withdraw his waiver of a jury trial would have delayed the trial perhaps three months was not a just cause for the judge ad hoc to refuse to allow the defendant to withdraw his waiver, under the circumstances of the case. The indictment was filed on April 2, 1936, alleging that the offense was committed on February 7, 1935. The motion of the defendant to withdraw his waiver of a jury trial was overruled by the judge ad hoc on June 30, 1942, that is, seven years and nearly five months after the date of the alleged offense, and six years and nearly three months after the date of the indictment. The minutes of the district court show that on April 17, 1936, on motion of the district attorney the case was fixed for trial for Monday, April 27, 1936. On May 4, 1936, the defendant's plea to the jurisdiction, his plea of prescription and his motion to quash the indictment were taken up and argued and submitted to the court. On May 8, 1936, the three pleas were overruled, and the attorney for the defendant gave notice of his intention to apply to the supreme court for writs of certiorari, prohibition and mandamus. On May 25, 1936, this court denied the petition for writs of certiorari, prohibition and mandamus. From May 8, 1936, to March 30, 1939, the district attorney made no motion or attempt to bring the case to trial. During that period of nearly three years no entry whatever was made on the minutes of the court concerning this prosecution. Nothing was done in the case from March 1, 1940, to December 9, 1941; that is, during a continuous period exceeding a year and nine months. Thereafter the case was postponed from time to time and was not finally disposed of by conviction and sentence until June 30, 1942. It does not appear that any part of the delay of six years and three months in which the case was pending in the district court was caused by the defendant's being unprepared for the trial. On the contrary the main purpose — if not the only purpose — of the many delays in the prosecution of the case was to collect from the defendant the amount of the judgment for $13,000 which Mrs. Hancock obtained against him, and for which her attorney consented to accept $1,800 in full payment, payable $50 a month. The fact that it would have caused an additional delay of approximately three months if the judge ad hoc had allowed the defendant to withdraw his waiver of a trial by jury was a matter of no importance in comparison with the delays which had occurred already, and in comparison with the importance of the right to a trial by jury.

Referring to the excerpts from the letters written by Kavanaugh to Mrs. Hancock — quoted in the prevailing opinion in this case — it appears from the record that his version of the transaction was that he was unable to acquire the 120 shares of Louisiana Power Light stock at a price that would make the purchase profitable to Mrs. Hancock, and that when he finally informed her of that fact she instructed him to deal with her 13,000 shares of American Gas Power stock according to his judgment; and that in so doing a loss was sustained by reason of a decline in the market, and by no fault on his part. He pleaded that he did not in any way profit by the dealings with Mrs. Hancock's shares of American Gas Power stock. A son of Mrs. Hancock, as a witness for the state, testified that Kavanaugh was well known by the Hancock family for about two years preceding the transaction for which he is being prosecuted; that he had called at the Hancock house several times in his dealings with Mrs. Hancock; that the witness was present during the signing of the contract on which this prosecution is founded; that the contract was made in duplicate and a copy was given by Kavanaugh to Mrs. Hancock; that Kavanaugh then had in his possession 7,000 of the 13,000 shares of American Gas Power stock, which he had acquired for Mrs. Hancock in a previous transaction, and which she had left with him; that at Mrs. Hancock's request the witness went with Kavanaugh to the bank and delivered to him the 6,000 other shares of American Gas Power stock; that Mrs. Hancock had had other stock transactions with Kavanaugh, which had been satisfactory, and which the witness "supposed" had been profitable to her; and that one of these transactions was guaranteed by the Bank of Dubach to the extent of $10,000. With this explanation by the state's witness, the letters from Kavanaugh, referred to in the prevailing opinion, are not incriminating; and the testimony of the state's witness shows that the state did not prove or intend to prove anything more than what was alleged in the indictment. Ordinarily, we have nothing to do with the facts relating to the guilt or innocence of the defendant in a criminal prosecution. I refer to the facts in this case merely to show how careful the attorney for the defendant had to be in determining whether he should entrust the decision of his case to a judge or to a jury.

It is obvious that the reason why the defendant and his attorney were in a quandary as to whether they should waive the right to a jury trial was that the case depended altogether upon the question of law — whether the defendant could be convicted legally of a crime if the prosecuting officer proved the facts alleged in the indictment. The defendant and his attorney believed — as I believe — that the facts alleged in the indictment did not constitute a crime. Hence the defendant and his attorney were justified in believing as they did believe at one time that a judge would be more apt than a jury would be to decide that the facts of the case did not constitute a crime. But when the defendant and his attorney changed their mind about that, the defendant should have had restored to him his constitutional right to a trial by jury.

I am not condoning Kavanaugh's speculating with the meager fortune of an inexperienced widow — even though the speculating may have been done at her request. But, as far as the record shows, that was the extent of Kavanaugh's offending. From which it appears to me that this is another of the many instances where hard cases make bad law.