State v. Cooke
| Decision Date | 19 April 1962 |
| Docket Number | No. 36089,36089 |
| Court | Washington Supreme Court |
| Parties | , 94 A.L.R.2d 564 The STATE of Washington, Respondent, v. Frank E. COOKE, Appellant. |
Harvey Erickson, Spokane, for appellant.
John J. Lally, Pros. Atty., Art Hansen, Deputy Pros. Atty., Spokane, for respondent.
This is an appeal from a judgment of conviction on four counts of the crime of grand larceny and a sentence on each count of not more than 15 years in the Washington state penitentiary, said sentences to run concurrently.
The defendant (appellant), Frank E. Cooke, was a salesman employed by Allied Service Company, a Minnesota corporation, which was a seller of cigar dispensing machines to local dealers and handled the wholesale marketing of cigars for the machines.
In early September, 1960, an advertisement appeared in two daily newspapers in the city of Spokane, and stated, very generally, the nature of a cigar dealership offered and requirements necessary for one to obtain the position. Thirty-one persons answered this advertisement by making written application to a Spokane address given therein.
The defendant came to Spokane in the middle of September and contacted, among others, the four complaining witnesses in this case. Written contracts were entered into with each of the complaining witnesses and they gave money to the defendant as a part of the purchase price, which he sent to Allied Service Company in Minnesota. He, in turn, was paid commissions by the company for the sales he negotiated. Each complaining witness entered into the contract without knowledge that the defendant had made contracts or was going to make contracts with any of the others.
The four counts in the information charged the defendant with making the same false representation to each complaining witness. The offenses charged are that the defendant fraudulently represented to the purchaser that he was obtaining an exclusive agency, franchise or dealership for the use of the cigar vending machines furnished by Allied Service Company, which was relied upon and induced them, to part with their money.
At the close of the trial, the jury returned verdicts of guilty on each count and the defendant, thereafter, was sentenced.
The defendant first contends that the facts alleged and proved, as a matter of law, are not sufficient for a conviction of the crime of larceny by false pretenses, as set forth in RCW 9.54.010. The defendant bases his argument on the undisputed fact that each complaining witness signed written contracts which contained the following provisions:
'(B) The territory assigned to Purchaser is as follows: Spokane--Plus a [distance inserted] radius around the city limits.
'(C) Supplementary Conditions:
'The Purchaser fully understands that this purchase order and agreement is complete in itself and cannot be rescinded; that it contains all of the terms of the agreement between the purchaser and the company.
'I have read this order through and understand all of its terms and conditions and hereby acknowledge receipt of a copy of same.'
It is asserted that the written contract is plain and unambiguous in describing the terms and that there is no agreement for an 'exclusive' franchise. It is then argued that since the factual circumstances would not support a defense of fraud in a suit upon the contract to recover the purchase price, the facts also will not support a criminal charge of fraud. However, the record contains evidence which clearly can support the jury's finding that the defendant actually did knowingly make the oral false representations as stated in the information, and with the exception of count IV, the defendant does not dispute there is evidence to support a jury's finding that the complaining witnesses actually relied on the false representation and, thereby, were induced to part with their money. The gist of this argument, therefore, is that the complaining witnesses, as a matter of law, had no right to rely on the asserted false representation and must be charged with having relied upon the terms of the written contract.
We do not find it necessary to decide whether the defendant is correct in his assertion that the written contracts are unambiguous and do not provide for an exclusive franchise. Even assuming that the assertion is correct, we are of the opinion that there is sufficient evidence in the record, if believed, to support a conviction of the crimes charged.
In Haagen v. Landeis, 56 Wash.2d 289, 352 P.2d 636 (1960), upon which the defendant relies, the plaintiff sued upon a written contract which contained a so-called 'merger clause' stating that 'This Agreement contains the entire understanding between us and no representation or inducement has been made that is not set forth herein.' The defendant attempted to avoid the contract by claiming fraudulent representations were made by the plaintiff's agent. We held that in view of this clause, the defendant had no right to rely on the oral representations and, therefore, could not establish the essential elements required to show fraud as a defense to the contract.
However, the Haagen case is not authority in a case involving a criminal charge for obtaining money by false pretenses. To maintain such a charge, it is not essential that the state prove the victim had a 'right to rely' upon the false representation. It is only necessary to prove that the victim actually relied upon it. The early case of State v. Knowlton, 11 Wash. 512, 39 P. 966 (1895) recognized the distinction between criminal law and civil law with regard to showing fraud:
'Counsel contends that a pretense, though false, and made for the purpose of defrauding, which would not have misled the person to whom made, had he exercised 'ordinary prudence and caution,' is not sufficient, and cites many authorities in support of the proposition. We think, however, that the better rule permits the jury to consider, from the facts and circumstances of a given case, what was the effect of the false representations upon the mind of the person defrauded, and what was the result. Did he rely upon the false pretenses and was he defrauded thereby?
Whart.Cr.Law, (9th Ed.) § 1188.
'The pretense ...
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Davis v. State
...evidence rule is that it has no application to situations where an agreement is induced or procured by fraud.”); State v. Cooke, 59 Wash.2d 804, 371 P.2d 39, 42 (1962) (holding that “although a ‘merger clause’ may bar one from asserting false oral representations in an action upon a written......
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State v. Ray
...313 P.2d 557, 64 A.L.R.2d 1283 (1957); State v. DeZeler, 230 Minn. 39, 41 N.W.2d 313; 15 A.L.R.2d 1137 (1950); State v. Cooke, 59 Wash.2d 804, 371 P.2d 39, 94 A.L.R.2d 564 (1962). It is based upon the sound principle that the defendant should make known to the trial judge his desire for suc......
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State v. Jones
...Court of Los Angeles County, 57 Cal.2d 276, 19 Cal.Rptr. 1, 368 P.2d 529; State v. Howley, 220 N.C. 113, 16 S.E.2d 705; State v. Cooke, 59 Wash.2d 804, 371 P.2d 39; 2 Wharton's Criminal Law and Procedure, Sec. 600, p. 352. Appellant asserts there is no testimony that the prosecuting witness......
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State v. McHenry
...to the orderly administration of justice. It was applied in State v. Goldstein, 58 Wash.2d 155, 361 P.2d 639 (1961) and State v. Cooke, 59 Wash.2d 804, 371 P.2d 39 (1962), where it was said that Nondirection, in the absence of a request, is never error. It was reaffirmed in State v. Louie, ......