State v. O'Dell, 32897

• Decision Date: 14 February 1955
• Docket Number: No. 32897,32897
• Citation: 46 Wn.2d 206,279 P.2d 1087
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Charles G. O'DELL, Appellant.

Page 206

46 Wn.2d 206

279 P.2d 1087

The STATE of Washington, Respondent, v. Charles G. O'DELL, Appellant.

No. 32897.

Supreme Court of Washington, En Banc.

Feb. 14, 1955.

Cameron Sherwood, Robert A. Comfort, Walla Walla, for appellant.

Aurel M. Kelly, Deputy Pros. Atty., Walla Walla, for respondent.

HAMLEY, Chief Justice.

This is an appeal from a judgment and sentence entered on jury verdicts of guilty of the crime of grand larceny and of being an habitual criminal. Present counsel for appellant and respondent, respectively, appeared for the first time at the En Banc hearing before this court.

The grand larceny conviction was based upon an information filed under RCW 9.54.010(2), cf. Rem.Rev.Stat. § 2601(2). It charges that, on or about August 4, 1950, appellant wilfully, unlawfully, and feloniously, by color and aid of a check of that date, obtained $317 from Sears, Roebuck & Company, in Walla Walla, Washington, with intent to deprive the owner thereof, knowing that the drawer of the check was not authorized or entitled to draw the same. The check in question was signed 'May Harvey,' followed by a Walla Walla street address. Appellant was named as payee of the check, and the face of the check carries the notation 'Tree work.' The name of appellant, as endorser, is written on the back of the check.

Appellant is self-employed as a tree surgeon. He did not testify, but his wife testified that she had seen a woman give her husband a check on the day in question, and that the endorsement on the back was in his handwriting. She further testified that the writing on the face of the check was not appellant's. There was other testimony to the effect that there was no such address as that shown under the name of the drawer, and that the bank on which the check was drawn held no account in the name of 'May Harvey.'

One of the assignments of error raises the question whether the trial court should have granted a new trial on the ground that the verdict was contrary to the law and evidence, because the specimens or exemplars used by a handwriting expert for purposes of comparison with the writing on the check were not proved or admitted to be in the handwriting of appellant.

Twelve such specimens or exemplars were used. One of these was a handwritten note, with appellant's name at the bottom. The others consisted of photostatic copies of various words, figures, and signatures which, we are told, were prepared by masking all but the photographed portions of several reports made to the board of prison terms and paroles. This latter information was properly withheld from the jury. While not pertinent to the specific question now being discussed, it may be noted that, in affidavits supporting a motion for new trial on the ground of newly discovered evidence, it is alleged that the handwritten note and several of the photostatic exemplars were actually in the handwriting of appellant's wife.

The handwriting expert, George H. Fleming, after discussing the points of similarity between the writing on the check and the writing on the exemplars, expressed the view that all of the handwriting on the questioned document and on all of the exemplars was by the same person.

Neither he nor any other witness, however, testified that the handwriting on the exemplars was that of appellant. Hence, the exemplars did not furnish a legal standard of comparison with the writing on the check. State v. McGuff 104 Wash. 501, 177 P. 316; State v. Brassfield, 33 Idaho 660, 197 P. 559.

The testimony of the handwriting expert was apparently produced for the purpose of proving two of the material allegations of the information. The first such purpose was to establish identity--to prove that appellant was the man who presented the check to Sears, Roebuck & Company. If the endorsement was made by the same person whose handwriting appears on the exemplars, and if the handwriting on the exemplars was proved or admitted to be that of appellant, this would tend to establish that it was appellant who presented the check and received the money. But since there was no attempt to establish that the exemplars were, in fact, in the handwriting of appellant, this chain of proof was necessarily incomplete.

On this issue of identity, however, the deficiency just noted would not entitle appellant to a dismissal or new trial. This is true because there was other testimony, given by a store official, positively identifying appellant as the person who presented the check and received the money. Moreover, the testimony of appellant's wife, that the endorsement was by appellant, would be sufficient to establish identity.

The second material allegation of the information, concerning which the testimony of the handwriting expert is relevant, is that having to do with the elements of intent and knowledge. The information charged, substantially in the words of the statute, RCW 9.54.010(2), that appellant obtained the three hundred seventeen dollars 'with intent to deprive the owner thereof, * * * knowing, that the drawer of said check was not authorized or entitled to draw the same.' The jury was correctly instructed that the state had the burden of proving such intent and knowledge beyond a reasonable doubt. State v. Post, 152 Wash. 393, 278 P. 164; State v. Gilmore, 42 Wash.2d 624, 257 P.2d 215.

No direct testimony was offered by the state bearing specifically upon the questions of intent or knowledge. This is understandable, since these elements can rarely be proved by direct testimony. They must, however, be proved at least circumstantially.

Except for the testimony of the handwriting expert, this was not done. Proof of endorsement...