State v. Benton

• Decision Date: 10 January 1929
• Docket Number: 21524.
• Citation: 150 Wash. 479,273 P. 731
• Parties: STATE v. BENTON.
• Court: Washington Supreme Court

273 P. 731

150 Wash. 479

STATE v. BENTON.

No. 21524.

Supreme Court of Washington

January 10, 1929

Department 2.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Frank H. Benton was convicted of larceny, and he appeals. Affirmed.

Tustin & Chandler, of Spokane, for appellant.

Chas W. Greenough and Del Cary Smith, Jr., both of Spokane, for the State.

MAIN J.

The defendant, by information which contained two counts, was charged with the crime of grand larceny. In the first count he was charged with buying, receiving, and aiding in concealing and withholding 'one gunny sack containing twenty-six boxes of cigars,' of the value of $67.70 knowing that the property had been stolen. In the second he was charged with buying, receiving, and aiding in concealing and withholding one bedstead and table base of the value of $28, knowing the same to have been stolen The trial resulted in verdicts finding the defendant guilty of grand larceny upon the first charge and of petit larceny upon the second. From the judgment entered upon the verdicts thus rendered the defendant appeals.

The appellant was engaged in the retail coal business in the city of Spokane. He had in his employ one John Tobek, who at night slept in a room in the office. It was the theory of the state that the appellant purchased the property mentioned in the information from one Santiago Compos, a Cuban, knowing or having reasonable ground to believe that Compos had stolen it. It was the theory of the appellant that Compos had brought the property to his office in his absence, and that Tobek had advanced or loaned him money thereon, and that the appellant had no knowledge of the transaction until he saw the property about the office, where it remained for some days. There is evidence that the appellant took the bedstead and table base to a house owned by him, and which was then being vacated, and stored them there. There is also evidence that the gunny sack containing the cigars was caused by the appellant to be stored in the garage of one Mrs. S. A. Tweedy, an elderly lady, who was a customer of his.

The appellant complains, because he says the court refused to instruct the jury upon his theory of the case. He requested this instruction: 'I instruct you that if you find from the evidence, that the property referred to in count II of the information, to wit, one ivory bed and one table base were either bought or received by one John Tobek, and that at the time...