| Show f Welling Hearing Hearin HearingS Continued Until i S H i May 10 by Court Judge Asks Several Days to Consider DeI Demurrer Demurrer De- De I Before Giving Ruling in inV V Vehicle Fee Case CaseBy CaseB By B r JENNINGS PHILLIPS The s second cond phase of the preliminary hearing for Secretary Secretary Secre Secre- tary iary of State Milton H. H Welling Velling on the felony charge of failing to remit to the state treasury in 1933 was continued for forone forone forone one week in city court Friday after A a defense demurrer to the complaint had been argued City Judge M. M J. J Bronson took tok the demurrer under advisement and continued con con- the hearing until Friday May 10 when if it the demurrer is overruled overruled over over- ruled another continuance may be ordered or if it the demurrer is sustained sus sus- sus lathed the thc state may request perm permission is sion lion to amend the thc present or file me a aDew anew anew new Dew complaint Secretary Welling Thursday was held b by Judge Bronson to stand trial in district court on the felon felony charge of DC fraudulently presenting a fols false claim for lor in favor of Mrs Golda Richards wife wile of Harold P. P Richards Rich Rich- ards ard a former sla state e to the board o of examiners in 1931 He He i is at aL liberty on his own zance Bases on Fees Fees' The he specific charge in the second complaint Is that the secretary secretory failed to pay over to the treasurer In ln fees for transfer of motor vehicle titles tilles' collected between January 1 I 1933 and June 30 1933 To this this- complaint Fr Friday day Dc Defense Counsel Burton W Musser Interposed interposed Inter inter- posed a demurrer alleging it states no facts to constitute a public offense that it does not conform to the sl statUte statute stat stat- tute t- t ute under which it was drawn that Con Continued on Pa Page Pace e Two COURT DELAYS I WELLING CASE Continued d from Page Pace One it Is ambiguous and unintelligible and that it cannot be determined from the complaint what fees are legally char chargeable or were char charged cd for lor as motor vehicle title transfers rs At the conclusion of the involved technical arguments argument on the demurrer Judge Bronson said he w would require requires s several veral days' days time to dec decide de the issue To Call 21 Witnesses Discussing Discussing- the matter of a continuance continuance continuance con con- C County Attorney Harold E. E Wallace Vallace explained 21 witnesses have been by the state and are under instructions to re report report report re- re port next Monday He estimated the hearing would require another seven days and informed the court the state is anxious to proceed with wilh the case without delay Mr Musser explained the defense defense defense de de- de- de has bas a civil case pending pending- Involving involving in In- the states state's attempt to coIled collect cal col lect led funds shown to be due from re of oC the secretary of or states state's accounts accounts' for 1932 and 1933 and for tor that reason would be unable to proceed proceed proceed pro pro- next Monday He also explained explained ex ex- records required for tor the hearing will be needed in the civil case The court tin finally ally agreed to continue continue continue con con- the caso case for one week ad advisIng advising advis advis- vis- vis In ing opposing counsel in the meantime meantime meantime mean mean- time of ot his ruling on the demurrer States State's witnesses he pointed out can be notified not to appear Manday Mond Monday Mon Man d day y but to hold themselves in readiness for a call caU later Since the witnesses receive 3 3 per diem plus traveling expenses and many are from tram distant parts of f the state it was pointed out the state would be put to needless expense expense expense ex ex- ex- ex pense if it they were called before the defense is prepared to resume the hearing I Cites Statutes Arguing points in the demurrer Mr Musser cited two sections section of oC the statute under which Mr Welling Well ing is charged One he said makes it a felony telony for a pu public lie officer of of- fleer ticer to fall fait to pay fees tees to the treasurer treasurer treasurer treas treas- in the manner and time prescribed prescribed prescribed pre pre- scribed by law The other makes it a misdemeanor for tor falling failing to pay fees in the time prescribed Since the complaint does not charge the defendant with failing falling to pay in the manner prescribed the defense argued merely alleging he failed tailed to remit the fees his offense offense of of- tense if it any is covered by the misdemeanor misdemeanor misdemeanor mis mis- demeanor statute and therefore the states state's complaint is h invalid Parnell Black assistant district attorney resisting this argument cont contended if it the state alleges the defendant failed tailed to remit the fees as it has it would be superfluous to also allege that he failed to do doso doso doso so in a certain manner You cant can't fall to do a thing In Ina a certain manner if you dont don't do that thing at all he argued Many Fees Collected As to the ambiguity of the complaint complaint com corn plaint Mr Musser pointed out be between be- be tween and transfer fees we wc were e collected In the secretary of states state's office during the first half of f 1933 and that the complaint fails to identify which of ot these fees Mr Welling Veiling is accused of ot failing failing tailing fail tail ing to remit We Ve are unable to prepare a defense defense de de- de- de from this complaint for that reason the defense attorney declared de de- de- de dared The state contended It would not be within the realm of possibility to show on what days or in what amounts the defendant obtained the The legal custody of that money placed on Mr shoulders the duty of proving he he remitted or did not fail to remit the fees Involved Involved in involved In- In here Mr Ir Black said Declared Faulty Mr Musser usser also argued that the complaint alleges two llO offenses if it it alleges any and for that additional additional additional addi addi- reason is faulty He argued Mr Welling Is accused of at failing to remit funds collected during two quarters of or 1933 at the end of ot the second quarter June 30 If It he did fail tail to do this Mr r. r Musser declared then he committed commit commit- ted ed two crimes because he also failed to remit on March 31 th the end of the first quarter fees collected collected col cal in that period An involved discussion of the legal egal points at issue followed Contrasted with the crowded condition condi condit tion of ot Thursday when testimony was being ing heard only a handful of spectators was in the courtroom during during dur- dur ing ng Fridays Friday's arguments Richards Richard Absent The states state's star witnesses Mr and md Mrs Richards were absent as was Clarence E E. Smith Spanish Fork postmaster and former Welling WeIling cm- cm who testified Thursday he indorsed in in- the salary claim in Mrs Richards Richards' name at her husbands husband's re re- re- re quest This claim Mr Richards testified he ic returned to the secretary at the latter's request and b because cause of or his explanation n that he Welling needed funds to entertain secretaries of at state who convened here the following Au Au- gust and because cause his son Jon expected to o be released from a church mission in Germany German The defense contradicted this testimony testimony mony many calling witnesses in an attempt to lo show Mr Wellings Welling's presentation of or orthe the check W was made in good faith and without intent to defraud the state Within 30 days District Attorney Calvin W. W Rawlings must file an information in formation in district court charging Secretary Welling with the offense for which he was held to answer Climaxing closing arguments late Thursday Judge Bronson declared No court would be justified in m refusing refusing re reo re- re fusing to permit a jury to pass upon the evidence in this case A spirited attack on the credibility of ot states state's witnesses featured final arguments arguments ar ar- ar of ot the defense while white states stales attorneys insisted the conflicting testimony testimony tes tes- tes should be sifted by a district court jury This hearing Is in no sense a trial Judge Bronson ruled I am not called upon nor have I the right to pass upon the guilt or innocence of the defendant Under our system of jurisprudence the law does not contemplate contemplate con con- t template that one man pass upon the theor guilt or innocence of ot a defendant 1 Except In a case where it is pos pas sible to decide beyond doubt the Innocence innocence in of a defendant the law aw leaves eaves the decision up to the magis magis- rate more more or less subjectively Jf It the states state's witnesses and their evidence are utterly discredited to the extent the magistrate believes the defendant defendant de de- de is innocent then it Is his duty to release him but If JC there is basis for a difference of opinion in inthe inthe the he minds of at reasonable men on the testimony then the defendant should have bave a trial by jury and the magistrate magis magis- irate should bind him over I have endeavored to lo keep the testimony in this case in mind and to lo digest the law as we went vent along We have witnesses affirming and denying on both sides in this case We Ve have lave mutual impeachment of witnesses witnesses wit nesses and I 1 have observed a number o of discrepancies and Inherent Improbabilities improbabilities im Im- Im probabilities on both sid sides s. s I 1 feel teel no court would be justified in refusing to permit a jury to pass upon the evidence in this case I 1 order order or or- der the defendant held to district court fo for fOI trial to answer the charge against him in the complaint The states state's arguments were made by County Attorney Harold E. E Wallace Wal lace and Parnell Black assistant district district dis dis- dis- dis attorney Those for the defense by uy Burton Burlon W. W Musser Reviews Testimony Reviewing the testimony Mr Wallace Wallace Wal Wal- lace recalled Mrs Richards' Richards name was placed on the secretary of at states state's payroll at Mr Wellings Welling's instance When Welling thanked Richards for tor obtaining the indorsement on the check the prosecutor declared it was as much as if t he said Thank you for tor allowing me to dip my hands into the public funds Questions of ot fact in the case Mr Wallace insisted should be determined deter mined by a jury The question of at whether Mrs Richards ever worked for the secretary secretary secretary secre secre- tary of ot state stale and she has testified ed she did not in itself itsel justifies the g giving giving ving v- v ing of at this case to a jury and shows probable cause to believe Secretary Welling WeIling committed a crime he de de- dared Replying to lo Mr Mussers Musser's attack on the credibility of at Mr Richards the states state's attorney declared the witness' witness testimony is substantiated in the main by other witnesses Why didn't Welling give R Richards his wife's check on June 30 1931 when Richards wen went in to say goodbye goodbye good good- bye to the secretary of or state slate and saw the check on his desk Wallace asked Held the Check Welling had some other purpose He held the check until July 17 when the Richards returned from California Califor Camor- nia so as Mr Richards said Welling Welting could get the check indorsed and re returned turned to lo him Referring to the defense contention that Mrs Richards had an ulterior motive in in keeping silent about the check which she knew to be in existence ex cx- nce on June 30 Mr Wallace pointed point point- ed cd out her husband was in the secretary secretary secretary secre secre- tary of at states state's employ It It was natural he said that she wouldn't say anything until she had a chance to talk lalk it over with wilh her hus hus- band Mr Wallace and Mr Black who concluded the arguments summed up the case against the secretary of ot state in substance as follows follows- The state stale is out Whether Mr Welling got the money or not he did put in a voucher stating Mrs Richards was a time full clerk for one month with wilh due Mrs Richards said she was not employed Welling didn't see her working He Je admitted he had no control over her ler services He had nothing to lo say sayas sayas sayas as to whether she should go on trips with her husband There was no agreement between them as there should be between employer and em em- I If It there were nothing more than that hat that there would be sufficient reason rea rca son to believe a claim was presented with intent to defraud |
