State v. Mitchell, 24995.

• Citation: 34 P.2d 902,178 Wash. 196
• Decision Date: 11 July 1934
• Docket Number: 24995.
• Parties: STATE v. MITCHELL.
• Court: United States State Supreme Court of Washington

34 P.2d 902

178 Wash. 196

STATE v. MITCHELL.

No. 24995.

Supreme Court of Washington

July 11, 1934

Department 2.

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

W. B Mitchell was convicted of grand larceny, and he appeals.

Affirmed.

W. B. Mitchell, of Spokane, and James T. Lawler of Seattle, for appellant.

C. W Greenough and Ralph E. Foley, both of Spokane, for the State.

GERAGHTY Justice.

Appellant was charged by information with the crime of grand larceny. The substance of the charge was that on or about the 15th day of January, 1930, having in his possession, custody, and control, as attorney, agent, and trustee of J. E. Moe, $55 lawful money of the United States belonging to Moe, the appellant unlawfully converted the same to his own use. Upon trial by a jury, a verdict of guilty was returned, and, after the denial of a motion for a new trial, judgment was entered upon the verdict, and this appeal follows.

It was developed by the testimony that the prosecuting witness Moe and his wife had been sued in a justice court by a collection agency for the recovery of $56.80. Moe testified that after the service of the papers upon him he met appellant, an attorney at law, and told him of the suit. Moe had previously consulted another attorney, who had advised him to make an effort to adjust the matter with Mr. Gillespie, the attorney for the collection agency. Appellant advised Moe that it would do no good to see Mr. Gillespie, and assured him that he could win the case and it would not cost him anything, as he (appellant) would be perfectly satisfied with whatever attorney's fees the court would allow him for beating the case. Moe let appellant defend the case for him on these terms. The case was lost in the justice court, as well as in the superior court, to which an appeal was taken. Moe testified that he had the same understanding in the superior court; appellant informing him that if he succeeded in the superior court the statutory fee would be large enough. Costs in the superior court increased the amount of the judgment to $67.20.

In October, 1929, Moe was called into court on supplemental proceedings by the judgment creditor; appellant acting as his attorney. Moe testified that in December, 1929, expecting to receive some money that would enable him to satisfy the judgment, he caused inquiry to be made of the attorney for the judgment creditor, and was advised that $50 would be taken in full satisfaction of the judgment. On January 14, 1930, Moe went to appellant's office and asked him to ascertain definitely whether the $50 would be taken in full settlement. On the following day, he went back to appellant's office, and appellant told him he had spoken to Mr. Gillespie, the attorney, and that he would take $50 in settlement. Moe thereupon gave appellant $55. In relation to what was said at this time, Mr. Moe testified: "Now, Mr. Mitchell,' I says, 'I know,' I says, 'I am disappointed in the way things have been going.' I says, 'This case has cost--I would have been much better off to have gone and paid that bill Before we ever started in, but what is done is done and I can't help it.' I says, 'You have put in a lot of work and you take this up to Mr. Gillespie. I would sooner give you $5 than to go up there myself.' I says, 'You take this up to Mr. Gillespie and get a release of that judgment and,' I says, 'this $5 is yours.' And he gave me a receipt for it.'

The receipt referred to by Moe, introduced in evidence, was as follows:

'January 15, 1930.

'Received of J. E. Moe Fifty-Five and 00-100 Dollars to settle Merchants Account and not to pay anything unless settled in full.

'$55.00-100. W. B. Mitchell.'

Shortly after this, Moe visited appellant to inquire if he had secured the release of the judgment, and was told by appellant that the attorney had refused to accept $50 in full settlement, but would apply the sum on the judgment and give time on the balance. Moe testified that, being informed of this, he said to appellant: 'Well, you had better give me the money back then, and I will keep that until we see what takes place.' To which appellant replied: 'No, you let me keep that, because just as soon as Gillespie finds out that he can't work us, he will be glad to take the money.' Moe left the money with appellant, because, as he said, 'That was probably the case.' Thereafter he made repeated visits to appellant's office to inquire if anything further had been done in the matter.

Subsequent to the deposit of the money with appellant, a writ of garnishment was issued upon the judgment against a mining company in which it was thought Moe or his wife held stock. The appellant appeared for them in this proceeding, and the writ of garnishment was quashed. Appellant testified that at the conclusion of the garnishment proceedings he reached an understanding with Moe, by the terms of which the money deposited with him for settlement of the judgment was to be retained as attorney's fees for the services rendered in the various proceedings growing out of the suit. Moe denied this. As there was no question about the terms upon which the money was originally paid to appellant, the decisive issue of fact in the case was whether, as claimed by him, the original agreement was modified and appellant authorized to keep the money in payment for his services. The jury by its verdict found the facts against appellant's contention, and the judgment thereon must be affirmed, unless the errors assigned require its reversal.

The first error assigned is the court's denial, at the close of the state's case in chief, of appellant's motion to require the state to elect as to the relation upon which it relied--whether that of attorney, agent, or trustee. The court denied this motion when made, but later, in the course of the trial, upon its own motion required the state to make an election whether it would prosecute appellant as attorney and trustee, or as agent. The state elected to prosecute appellant for the larceny of funds intrusted to him as attorney and trustee. Appellant complains of the court's permitting his prosecution in the relation of trustee as well as attorney. As we gather from his argument, he conceives himself to have been prejudiced by the use of the word 'trustee.' We are unable to see any merit in this contention. The relation of attorney involves the highest personal trust and confidence, and he is bound to discharge his duties to his client with the strictest fidelity. His relation to his client is one of trust. In this instance, while appellant's primary relation to his client was that of attorney, he was as well a trustee for the application of the fund intrusted to him in accordance with his client's instructions. 'Every person who receives money to be paid to another, or to be applied to a particular purpose to which he does not apply it, is a trustee, and may be sued either at law for money had and received, or in equity, as a trustee, for a breach of trust.' Chancellor Kent, in Kane v. Bloodgood, 7 Johns. Ch. (N. Y.) 90, 11 Am. Dec. 417.

The next error assigned relates to the refusal of the trial court to permit the introduction in evidence by appellant of the judgment roll of a civil action in a justice court, brought by him against the prosecuting witness Moe and his wife. This action was brought...