State v. Bradley
Decision Date | 28 June 1937 |
Docket Number | 26622. |
Citation | 190 Wash. 538,69 P.2d 819 |
Parties | STATE v. BRADLEY. |
Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, King County; James B. Kinne, Judge.
Henry Bradley was convicted of grand and petit larceny, and he appeals.
Affirmed.
Andrew L. Ulvestad, of Seattle, for appellant.
B. Gray Warner and Paul Coughlin, both of Seattle, for the State.
Henry Bradley was by information charged with the crimes of grand and petit larceny. The information contained eight counts three alleging facts constituting grand larceny, and five charging the lesser crime. The counts were all based upon checks drawn by defendant during the month of April, 1935 which checks were not paid by the drawee bank because Bradley's account lacked funds sufficient to cover them. Defendant entered pleas of not guilty, and at the close of the State's case, the court, on defendant's motion dismissed two of the counts contained in the information, one charging grand and the other petit larceny. The evidence on the other six counts was by the trial court submitted to the jury, which returned on each count a verdict of guilty as charged. A motion for a new trial having been overruled, judgment and sentence were entered upon the verdict, from which the defendant has appealed.
Error is assigned upon the admission of certain evidence and upon the refusal of the trial court to strike the same; upon the overruling of appellant's challenge to the sufficiency of the evidence; upon the denial of appellant's motion for a mistrial on the ground of misconduct of counsel for the State; and upon the refusal of the trial court to grant appellant a new trial.
The case was submitted to the jury upon the evidence introduced by the State, appellant having introduced no testimony. Over appellant's objection, the court permitted the chief bookkeeper of the bank upon which the unpaid checks were drawn to testify from the bank records that other checks not referred to in the information had been drawn by appellant upon the bank and payment thereof refused because of insufficient funds or because the account had been closed. Appellant assigns error upon the court's refusal to strike this testimony, relying upon the general rule that, 'On a prosecution for a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.' 16 C.J. 586, § 1132.
Appellant contends that evidence concerning these other checks should not have been admitted, even to show intent, or as tending to prove that appellant, in issuing the checks referred to in the information, was following a general plan or scheme, and also for the reason that it does not appear that the other checks, concerning which the official of the bank testified, were not postdated checks, and for that reason not within the statute under which appellant was prosecuted. The evidence introduced by the State showed that the checks upon which the information was based were drawn by appellant to cover wages earned by workmen who had been employed by appellant during the week in which the checks were drawn. During the month of March, 1935, appellant opened in the city of Seattle a business known as 'Cedar Coat Company,' and about April first following, he commenced operations under the name of 'Nation Wide Lacquer Shop' for the repair and refinish of automobiles. Appellant obtained considerable business, and paid some of the workmen he employed for their services. Saturday, April 20th, appellant issued a number of wage checks, which were unpaid, and resulted in the prosecution now Before us. Appellant apparently abandoned his business shortly after issuing these checks, and went to Oregon. While the information may be said to be based upon the crime of larceny, it actually charges a purely statutory offense, a crime very different from common-law larceny, to wit, a violation of Rem.Rev.Stat. § 2601-2, which reads as follows:
The employee of the bank who testified from the bank's ledger sheet as to the status of appellant's account during the period in which the checks referred to in the information were drawn, testified also as to a number of other checks which appellant had drawn on the same bank at approximately the same time as the checks referred to in the information, and that these other checks were also unpaid for want of sufficient funds in appellant's account to cover them. Appellant did not object to the evidence concerning these other checks at the time the same was received, but later moved to strike all such evidence, and excepted to the court's denial of his motion. The court referring to these checks, instructed the jury as follows: This instruction became the law of the case, although respondent argues that the same gave appellant an advantage not warranted by the law governing the matter now under discussion.
In this connection, the general rule relied upon by appellant, above referred to, is firmly established, and has repeatedly been followed by this court. This rule is, however, subject to well-recognized exceptions, and, as this court stated in the case of State v. Edelstein, 146 Wash. 221, 262 P. 622, 628, 'evidence * * * does not become irrelevant or incompetent merely because it also tends to show that the accused has committed another crime unrelated to the one for which he is being tried.' A similar rule has been followed in the cases of State v. Macleod, 78 Wash. 175, 138 P. 648; State v. Kreiss, 133 Wash. 256, 233 P. 649; State v. Ball, 153 Wash. 316, 279 P. 735; State v. Clamp, 164 Wash. 653, 3 P.2d 1096, 80 A.L.R. 1302.
One of the exceptions is well described in 16 C.J., title Criminal Law, § 1137, p. 589, under subtitle Intent, as follows:
The cases of People v. Bercovitz, 163 Cal. 636, 126 P. 479, 43 L.R.A. (N.S.) 667; People v. Hamby, 55 Cal.App. 37, 202 P. 907; Huffman v. State, 205 Ind. 75, 185 N.E. 131; State v. Robinson, 120 Or. 508, 252 P. 951; Beach v. State, 28 Okl.Cr. 348, 230 P. 758, are very much in point on this phase of the case.
In this connection, it should be noted that the cases of State v. Bokien, 14 Wash. 403, 44 P. 889, and State v. Pilling, 53 Wash. 464, 102 P. 230, 132 Am.St.Rep. 1080, seem to support appellant's position in the case at bar. In the Bokien Case, it was held that in a prosecution for obtaining goods under false pretenses by the giving of a check upon a bank in which the defendant had no funds, it was error to allow the prosecution to introduce evidence concerning other checks drawn by the defendant in favor of other persons, when the drawer had no funds on deposit with which to meet the same. It should be noted that, in the case cited, the defendant was charged with obtaining property under false pretenses, it appearing that he procured a chattel in exchange for the check which was not good. The defendant was not charged with drawing a check upon a bank in which he had no or an insufficient account, and evidence admitted over the defendant's objection, to the effect that prior to the giving of the check in question he had drawn other checks which were not paid, was properly held incompetent. In the case at bar, appellant was charged with a crime under the section of the statute above quoted, which makes it an offense, under certain circumstances, to draw a check knowing that the drawer is not entitled to make the same.
In the case of State v. Norris, 27 Wash. 453, 67 P. 983 985, the case of State v. Bokien was referred to, the court observing that the testimony which had in that case been held incompetent 'bore no relation to the crimes...
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