State v. Carr

• Decision Date: 30 December 1930
• Docket Number: 22736.
• Parties: STATE v. CARR.
• Court: Washington Supreme Court

294 P. 1016

160 Wash. 83

STATE v. CARR.

No. 22736.

Supreme Court of Washington

December 30, 1930

As Corrected February 11, 1931.

Department 2.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Marie Carr was convicted under the insufficient funds statute, and she appeals.

Remanded for new trial.

W. B Mitchell, of Spokane, for appellant.

Chas W. Greenough and Frank Funkhouser, both of Spokane, for the State.

BEELER, J.

A chronological statement of the history of the proceedings in this case appears in the companion case of State v. Marie Carr, 294 P. 1013.

On March 20, 1930, appellant was charged in a substitute information containing four counts, under § 2601-2, Rem. Comp. Stats., known as the 'insufficient funds statute.' Count I charged grand larceny in that on October 26, 1920, appellant did willfully and feloniously with intent to defraud, make, utter, and deliver to the Zellerbach Paper Company her check, knowing at the time of such drawing and delivering that she had not sufficient funds in, or credit with, the bank to meet payment on the check. Counts II, III, and IV each charged appellant with petit larceny, in that she drew the three checks mentioned in each of the three counts knowing that she had not sufficient funds in the bank to meet payment. The check referred to in count II is dated October 31, 1929, the one in count III, November 23, and the one in count IV, October 22, all drawn on the Hillyard State Bank. She was convicted on counts I, II, and II, and acquitted on count IV, and she has appealed from the judgment and sentence on the verdict.

Appellant relies on five assignments of error. First, it is claimed that the trial court erred in denying appellant's motion for a directed verdict as to counts II and III of the information. The argument advanced is that appellant had no criminal intent to defraud, in that she honestly believed that the money was in the bank to meet the payment on each of the two checks, and that in any event the injured parties had executed written receipts wherein they acknowledged payment.

The record discloses that the check described in count III amounting to $18.25, and the balance due on the check described in count II in the sum of $3.99, were paid by the National Surety Company on January 20, 1930. Apparently $4.11 had previously been paid on the check referred to in count II. Moreover, on April 22, 1930, appellant procured signed receipts from each payee named in the respective checks acknowledging payment. From these circumstances it is argued that she is entitled to the benefits accorded under section 2127, Rem. Comp. Stats., which provides: 'In such case if the party injured appear in the court in which the cause is pending at any time before the final judgment therein, and acknowledge in writing, that he has received satisfaction for the injury, the court may, in its discretion on payment of the costs incurred, order all proceedings to be discontinued and the defendant to be discharged. * * *'

It must be borne in mind that on February 19, 1930, she was charged in the original information under the bad check statute on these identical checks, and was convicted. Later, a new trial was granted and she was again convicted. A few days later she was granted a new trial for the third time, and thereafter the cause was set and retried on May 7, 1930, resulting in a conviction, from which this appeal followed. Furthermore, the check described in count II was issued by appellant on October 31, 1929, and, although it was returned marked 'insufficient funds,' and although it remained unpaid, at least partially, until January 22, 1930, nevertheless, on November 23, 1929, she drew the check described in count III, which was returned marked 'insufficient funds.' Surely she must have known on November 23 that the check of that date would be dishonored. Whether a misdemeanor charge should be dismissed is, by the statute, supra, placed within the sound discretion of the trial court, and in view of the record we find no abuse of discretion in refusing to dismiss counts II and III.

It is next claimed that the trial court erred in denying appellant's motion for a directed verdict as to count I. The question raised was whether the check described in count I was a postdated check. The check bore date October 26, 1929. It is appellant's contention that, on Friday, October 25, 1929, the Zellerbach Paper Company delivered some merchandise to her, and that on the same day she gave the check, which bore date October 26, to its driver or representative, and therefore, being a postdated check, the statute is inapplicable, and no crime was committed. This argument is ingenuous, but unsound. While there is a sharp conflict in the testimony as to whether the Zellerbach Paper Company delivered its merchandise on Friday, October 25th, as appellant contends, or whether the merchandise was delivered on Saturday, October 26th, as contended by the state, yet there is ample evidence in the record, if believed, tending to establish the state's theory as to the date when the merchandise was delivered. If it be a fact that the merchandise was delivered on October 26th, and that the check was given on the same day, then the statute applies and a crime was charged. There being a conflict in the evidence, this question was properly submitted to the jury.

The next assignment of error relates to the refusal of the court to give appellant's proposed instructions numbered 3, 4, and 5, and the giving of instructions numbered 2 and 4.

We find no error in the refusal of the trial court to give appellant's proposed instructions 4 and 5.

Now, as to appellant's proposed instruction No. 3, and instruction No. 4 given by the court. Both relate to the delivery of merchandise by the Zellerbach Paper Company to appellant, and the giving of the check by her to its driver in payment of the goods. Instruction 4 reads: 'If you believe from the evidence in this case that the Zellerbach Paper Company delivered merchandise to the defendant on October 25, 1929, and the defendant on that date gave the employee of the Zellerbach Paper Company the check described in Count I of the information and dated the check the next day, with the knowledge and consent of the employee of the said Zellerbach Paper Company, and that such check dated as of a time subsequent to the delivery of the goods in payment for which the check was then given was accepted by the employee of the Zellerbach Paper Company knowing the same was post-dated and not payable before a date subsequent to the delivery of the merchandise, then you will find the defendant not guilty of the crime charged in Count I of the information.' Appellant's principal objection is to the italicized portion of the instruction. Appellant offered testimony tending to establish that the goods were delivered on Friday, October 25, and that she gave the check, dated October 26, to the paper company's employee, whereas the state's testimony was to the effect that the goods were delivered and the check received on October 26th, and that consequently the check was not a postdated check. Clearly, the instruction was in accordance with appellant's theory of the case, and the element of knowledge and consent on the part of the employee of the paper company as a condition precedent was rightly made a part of the instruction.

Appellant places particular stress on the giving of instruction No. 2 by the court, and claims error. The instruction was proper. It was: 'If you find from the evidence in this case, beyond a reasonable doubt, that the defendant did commit the crimes, or either of them, as charged in the several counts in the information, then any payment or offer of payment of the amount of such checks by the defendant, or any other person, afterwards, cannot be considered as any defense in this case.

This court said, in State v. Shears, 119 Wash. 275, 205 P. 417, 419, that: 'Reparation, or simply the return of property stolen when one finds his crime has been discovered, is no defense to a prosecution for the larceny.'

In State v. Craddick, 61 Wash. 425, 112 P. 491, 494, this court said: 'A thief will not be accorded immunity by the law by simply returning the stolen property when he finds that his crime has been discovered.'

Finally, it is claimed that the appellant was denied a fair and impartial trial because of misconduct on the part of the trial deputy representing the state. It is claimed that his conduct was such as to prejudice the minds of the jury against her, and from an examination of the record we are satisfied that the cause must be reversed on this ground. The following illustrates, in part, the misconduct relied on by appellant:

'Q. Mr. Donovan never presented anything like this when he was the attorney?

'Mr. Mitchell: I object to that statement and ask that it be stricken.

'The Court: The jury will disregard it.

'Q. Mr. Donovan never presented it to you?

'Mr. Mitchell: Your Honor, he ought to be instructed about that. I object to that statement of counsel.

'The Court: It hasn't any place in this case.

'Q. You served this warrant dated January 17--I want to get at the date of this conversation----

'Mr. Mitchell: I don't believe he wants to get the date. He has no right to introduce that kind of stuff here.

'Mr. Funkhouser: I am just proving her admission and that she knew she had issued them, and leading up to the introduction of the evidence in these letters, that she received those letters.

'Mr. Mitchell: I am going to object to counsel's statement--trying to get it before the jury--and I ask the court to tell the jury to disregard it, and to strike it out, and instruct the attorney not to carry

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