State v. Berg, 33464
| Decision Date | 07 June 1956 |
| Docket Number | No. 33464,33464 |
| Citation | 298 P.2d 519,49 Wn.2d 86 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. E. M. BERG, Appellant. |
Pemberton & Orloff, Bellingham, for appellant.
Tom A. Durham, Bellingham, Carl B. Luckerath, Seattle, for respondent.
The appellant was found guilty, by a jury, of the crime of grand larceny, and was given a suspended sentence of fifteen years in the state penitentiary. He appeals from the judgment entered on the verdict.
A number of assignments of error are based upon the appellant's contention that the information failed to charge the crime of larceny, since although it was alleged that the acts of the appellant were done feloniously and fraudulently, the element of intent was not alleged in the words of the statute defining the crime, Rem.Rev.Stat. § 2601(3), cf. RCW 9.54.010(3), and that the court erred in allowing a trial amendment to include the omitted words.
Rule of Pleading, Practice and Procedure 12, 34A Wash.2d 76, authorizes the trial court to permit the amendment of an information at any time before or during trial and provides that an information will be deemed amended to conform to the evidence introduced without objection in support of the crime substantially charged in the information. The evidence which was introduced to prove intent was objected to on the ground that it was too remote, and not on the ground that the element of intent was outside the pleadings; consequently without the trial amendment, the information would be deemed amended. Furthermore, when the trial amendment was requested, the appellant did not claim surprise nor ask for a continuance; and he does not suggest now that he was prejudiced by the court's ruling. Under such circumstances, the court may properly permit an amendment to cure a defect in the pleadings. State v. Alexander, 167 Wash. 15, 8 P.2d 298. And since the information charged that the funds were misappropriated with the intent to deprive or defraud the owner thereof, the errors assigned to the giving of instructions which conformed to the wording of the information are without merit.
The remaining assignments of error concern the sufficiency of the evidence to sustain the verdict. The appellant urges that there was no evidence that funds were missing. According to the evidence, the appellant was for many years the agent of the Alaska Fishermen's Union at Bellingham, Washington. As a part of his duties, he collected dues and...
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