State v. Brummett
| Decision Date | 29 August 1917 |
| Docket Number | 14012. |
| Citation | 98 Wash. 182,167 P. 120 |
| Parties | STATE v. BRUMMETT. |
| Court | Washington Supreme Court |
Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.
H. G Brummett was convicted of removing and secreting personal property held under a conditional bill of sale, and he appeals. Reversed and remanded for new trial.
H. W Lueders, of Tacoma, for appellant.
Fred G. Remann, J. W. Selden, and C. R. Reeves, all of Tacoma, for the State.
The defendant H. G. Brummett and one L. C. Tanggard were jointly charged with removing and secreting personal property held under a conditional bill of sale. The charging part of the information is as follows:
'That the said H. G. Brummett and L. C. Tanggard in the county of Pierce, in the state of Washington, on or about the 2d day of December, 1915, then and there being unlawfully, and being in possession of a certain Ford Motor Car under a conditional sales contract or lease, dated July 24th, 1915, and entered into between Automobile Finance Company, vendor, and East End Market, vendee, did then and there and with intent to hinder, delay and defraud the holder of said conditional sales contract or lease, remove said personal property from Pierce county, and conceal the same from the vendor, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Washington.'
Defendant demanded and was accorded a separate trial. It was the theory of the prosecution that defendant and Tanggard as the East End Market were partners in the purchase of the car.
Prior to the latter part of June, 1915, defendant was employed in his father's butcher shop, known as the East End Market, in Tacoma. During the latter part of that month the father sold the market to Tanggard, executing to him a bill of sale, which recited a cash consideration. Tanggard, however, testified that the real and only consideration was his agreement to pay the outstanding indebtedness of the business. Defendant continued his employment in the market after Tanggard took possession.
About July 4, 1915, Tanggard decided to install an automobile delivery, and went to Seattle for the purpose of securing a delivery car. Before leaving he requested defendant to ascertain whether a suitable car could be purchased in Tacoma. During Tanggard's absence defendant called the R. & W. Auto Company, of Tacoma, by telephone, and was informed that it could furnish a suitable secondhand car. E. S. Robinson, then the sole owner of the R. & W. Auto Company, which was an agent of the Automobile Finance Company took a car belonging to the latter company to the East End Market for a demonstration. Defendant then told Robinson that it was necessary to have Tanggard's approval of the car. On the following day Robinson again appeared with the car, and it was exhibited to Tanggard, defendant being present. Robinson testified that at this time defendant stated that Tanggard and he were partners in the business. Both defendant and Tanggard deny that they ever were in fact, or ever represented themselves to be, partners. The terms of sale agreed to were as follows: Certain minor repairs to the machine were to be made by the vendor. The purchase price was to be $310, upon which was to be made an initial payment of $100, the balance to be paid in installments of $30 a month, with interest at 8 per cent. per annum on deferred payments, title to remain in vendor till final payment. The repairs having been made, the car was returned to the market for delivery, but sufficient money had not yet been raised to make the initial payment of $100. Robinson agreed, however, to leave the automobile at the market and accept a payment of $30, the balance of the initial payment to be made in a few days. Tanggard made this payment by giving Robinson his personal check. Subsequently the conditional sale contract was executed, naming Automobile Finance Company as vendor and East End Market as vendee, and signed 'R. & W. Auto Co., Agent for Vendor,' 'East End Market, by L. C. Tanggard, Vendee.' The contract, which recites the receipt of a $100 payment, bears date of July 24, 1915, and was recorded on July 28, 1915. There was evidence tending to show that the machine was delivered to the East End Market more than ten days prior to the recording of the contract.
The car was used by the East End Market until early in August, at which time the business was closed. Tanggard testified that he personally informed Robinson that he had closed the market; that he would therefore have no more use for the car; that he understood defendant desired to purchase it; that he would return the car; that if defendant did agree to purchase it, the conditional sale contract with the East End Market was to be canceled, and that Robinson agreed to this. Defendant testified that when one Burt, an employé of Tanggard, returned the car to Robinson on August 5th, defendant went with him; that he talked with Robinson relative to purchasing the car; that Robinson agreed to sell him the car, and offered a conditional sale contract for signature, which defendant refused to execute, stating that he wanted to take the machine out of the county, and that Robinson then agreed to sell him the car upon an open account and give him the benefit of the payment previously made by Tanggard. Defendant then paid Robinson $30 upon the purchase price of the car, taking Robinson's receipt therefor, which receipt also allowed credit for the $30 paid by Tanggard. Burt, who was present at the time, in the main corroborated defendant as to this transaction. Robinson denied that he at any time ever had a conversation with Tanggard touching the cancellation of the contract of the East End Market, and denied that he ever made any separate agreement with defendant. Thereafter defendant went to McMillan, in Pierce county, taking the car with him. On two or three occasions representatives of the R. & W. Auto Company called on him personally and requested payment or the return of the car. On these occasions defendant stated that he was unable to pay just then, but promised payment in the future. He refused, however, to return the car without reimbursement for certain 'extras' he claimed to have added to it.
In the fall of 1915 defendant started to drive the car to Seattle for the purpose, as he testified, of attending a trial. While en route the machine broke down, and it was necessary to have it towed to Seattle. It was there placed in storage with one Kay, defendant leaving instructions with Kay to have the machine repaired and he would call for it later. On cross-examination he admitted that afterwards, in order to pay the repair charges, defendant borrowed the money from Kay, giving him as security a chattel mortgage on the car, and later sold the car outright to Kay. The jury found defendant guilty. From the judgment of conviction and sentence he appeals.
Appellant first contends that the information is fatally indefinite, in that it fails to specify the character either of the Automobile Finance Company or of the East End Market, and in that it fails to allege a partnership of appellant and Tanggard. The governing statute (Rem. Code, § 2629) reads as follows:
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...Ct. 368, 41 L. Ed. 789; United States v. California & Overland Co., 148 U. S. 31, 13 S. Ct. 458, 37 L. Ed. 354. See, also, State v. Brummett, 98 Wash. 182, 167 P. 120; Allis-Chalmers Mfg. Co. v. Ellensburg, 108 Wash. 533, 185 P. 811; Malmo v. Washington Rendering, etc., Co., 79 Wash. 334, 1......
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...a single crime committed in any one or all of the ways charged. State v. Holedger, 15 Wash. 443, 46 P. 652 (1896); State v. Brummett, 98 Wash. 182, 167 P. 120 (1917); State v. St. Clair, 21 Wash.2d 407, 151 P.2d 181 (1944). Where, under a penal statute, a single offense can be committed in ......
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