State v. Bryant
| Decision Date | 08 February 1968 |
| Docket Number | No. 39254,39254 |
| Citation | 73 Wn.2d 168,437 P.2d 398 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. James Milton BRYANT, Appellant. |
Murray & Hanna, Robert F. Murray, Wenatchee, for appellant.
E. R. Whitmore, Jr., Pros. Atty. David J. Whitmore, Deputy Pros. Atty., Wenatchee, for respondent.
January 24, 1966, a jury returned a verdict of guilty of grand larceny against defendant. January 25, 1966, a supplemental information was filed that charged defendant with being an habitual criminal. June 30, 1966, a second jury found defendant to be an habitual criminal as charged. September 29, 1966, defendant was sentenced to life imprisonment, pursuant to RCW 9.92.090.
Appellate court-appointed counsel represented defendant on the second jury trial but not on the first.
It was charged that defendant
wilfully, unlawfully, and feloniously, with intent to deprive or defraud the owner thereof, (did) obtain from the owner * * * possession of property of more than $75.00 in value, to-wit: a 1957 Chevrolet 210 * * * by color or aid of fraudulent or false representation, personation or pretense or by trick, device or bunco game, * * *.
The charge is almost verbatim from RCW 9.54.010(2).
Defendant's first assignment of error is that the evidence does not prove the crime with which defendant was charged--larceny under RCW 9.54.010(2); but, at most, only tends to show possible embezzlement, pursuant to RCW 9.54.010(3), with which defendant was not charged. The distinction between the two sections of the same statute, and the proof necessary to sustain each, is pointed out with clarity in State v. Renhard, 71 Wash.Dec.2d 656, 430 P.2d 557 (1967). In Renhard, defendant was charged with the crime of larceny by means of fraudulent or false representations. The court reversed the conviction, for the evidence only indicated embezzlement with which defendant was not charged. Renhard, however is not apposite to the instant case.
About 7 p.m. August 14, 1964, defendant went to a used-car lot, attended by the salesman, Mr. Albin, to trade his present automobile and secure a better one. Having found the car he desired, defendant agreed to the terms of the sale. Mr. Albin, because he knew defendant, allowed him to take the newly-purchased car home, leaving his old car at the lot as a trade-in, with an executed power of attorney to transfer title. Defendant was explicitly and expressly advised that he was to return the following morning so the sales manager could prepare and execute the papers necessary to complete the sale. Mr. Albin testified that he would not have permitted defendant to take the car had he not promised to return the next morning to complete the transaction.
Defendant failed to return. Mr. Albin made numerous attempts to locate him. He went to his place of employment and to his residence. He left a note on the car, on one occasion, when he located it at defendant's rooming house; he had the landlady 'scotch-tape' a note on defendant's apartment door on Saturday, August 22. The following Tuesday, August 25, the landlady entered defendant's room. She found the note in the room and discovered that defendant had moved out without notice, even though his rent was paid until September 4, 1964.
The car was located in O'Dell, Oregon, March, 1965. The motor had been removed; it was on blocks and had to be sold for junk.
It is axiomatic that the state has the burden of proving every element of the crime charged. State v. Renhard, 71 Wash.Dec.2d 656, 430 P.2d 557 (1967). One of the elements of proof of larceny by fraud is evidence of a misrepresentation of existing or past facts (State v. Lynn, 89 Wash. 463, 154 P. 798 (1916)), although the false representation need not be the sole cause that induced the victim to yield possession. State v. Peterson, 190 Wash. 668, 672, 70 P.2d 306 (1937).
In State v. Konop, 62 Wash.2d 715, 718, 384 P.2d 385, 387 (1963), the court said:
Whether one intended, at a specified time, to defraud another of his property is a question of fact to be resolved by the trier of the facts.
There is sufficient evidence, if believed by the jury, to support the conclusion that on August 14, 1964, when defendant took possession of the automobile, he represented to Mr. Albin that he intended to return the next morning and complete the transaction when in fact he did not intend to return; hence, a fraudulent representation was made in order to convert the automobile to his own use.
We find no merit in defendant's first assignment of error.
Defendant assigns error to instructions 11, 13, 14 and 16.
Adequate exception was not taken to instruction No. 11, which defines the elements of a fraudulent representation so we cannot consider it. We consider the other instructions in order.
Defendant assigns error to instruction No. 13, which, in defining false representation, states that it is sufficient if the false representation 'to some degree operated to induce' Mr. Albin to part with the automobile. We find the instruction proper. State v. Peterson,supra; State v. Kulbe, 67 Wash. 21, 120 P. 510 (1912).
Instruction No. 14 states that 'fraudulent intent may be inferred from the retention for a long period of time, without a satisfactory explanation, of property to which one has no right.' We do not approve the words 'without a satisfactory explanation,' but we do not deem it reversible error. This language is used in the court's opinion in State v. Sullivan, 129 Wash. 42, 51, 224 P. 586 (1924). We deem it appropriate in the instant case, for it is germane to a determination of defendant's intent on the evening in question.
Instruction No. 16 defines the consideration the jury may give to defendant's 'flight.' It is argued that the instruction was prejudicial because defendant did not leave town for at least a week after the alleged larceny.
Although the circumstances or inferences of flight must be substantial and real, not speculative, conjectural, or fanciful (State v. Bruton, 66 Wash.2d 111, 401 P.2d 340 (1965)), we conclude that there is sufficient evidence to justify the instruction. Defendant knew Mr. Albin was seeking him and had had a note attached to...
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