State v. Downer

Decision Date07 June 1912
Citation68 Wash. 672,123 P. 1073
CourtWashington Supreme Court

Department 2. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Frank Downer was convicted of larceny by embezzlement, and he appeals. Affirmed.

S.D Wingate and Walter S. Fulton, for appellant.

John F Murphy, Alfred H. Lundin, and Reah M. Whitehead, all of Seattle, for the State.


The defendant was convicted in the lower court upon a charge of larceny by embezzlement. He appeals from the judgment thereon.

He makes three assignments of error, to the effect: (1) That the trial court permitted evidence to be offered of other offenses subsequent to the charge made in the information; (2) that the court permitted the books of account to be used by the jury, which books contain transactions which occurred after the date of the alleged crime; and (3) that there was not sufficient evidence to go to the jury. We shall notice these assignments in the reverse order.

The defendant was in the employ of C. C. Belknap Glass Company as a bookkeeper and cashier, during the years 1910 and 1911. As such employé, he had sole charge of the books of account and money of that company. During the months of January February, March, and April, he took from a cash drawer small sums of money, aggregating $175, without the knowledge of his employer. When this fact was discovered, he admitted that he had taken the money, but claimed that he had subsequently replaced it. The state's evidence tended to show that he had never returned the money or any part of it. The appellant's testimony showed conclusively that he had taken the money without notice to his employers, and that he had secreted the fact by executing a note which was charged off to profit and loss, but that he had kept the note in his possession; that after he had returned the money secretly during a period of months, he then destroyed the note. It is at once apparent that there was ample evidence to go to the jury on the whole case.

Certain pages of books, and possibly the books themselves, were offered and received in evidence. These books were the books kept by the appellant. When they were offered in evidence, no objections were made. Counsel for appellant stated, 'We have no objections.' There is therefore no merit in this assignment.

The principal contention of the appellant is that the court erred in receiving evidence of offenses which occurred after April 30, 1910, the date upon which the offense is alleged to have been committed. When the defendant himself was upon the witness stand, after he had testified in substance that he had returned the money in small amounts which he would place in the cash from his own funds without showing upon his books where the money came from, and that by reason of this fact his cash was more at times than the books would show, he was asked upon cross-examination if certain...

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10 cases
  • State v. Lough
    • United States
    • Washington Court of Appeals
    • May 3, 1993
    ...doing of that act. 2 J. Wigmore, Evidence § 304, at 249 (Chadbourn rev.1979) (hereinafter Wigmore.) Citing, inter alia, State v. Downer, 68 Wash. 672, 123 P. 1073 (1912), it is stated in 29 Am.Jur.2d, Evidence § 326, at 377, [t]he law permits proof of a plan or scheme to commit a series of ......
  • State v. Wolfe, 7743
    • United States
    • South Dakota Supreme Court
    • March 21, 1936
    ...yet we believe the case comes within the exception and the rule announced in State v. Ewert, supra. Also, see, State v. Downer (1912) 68 Wash. 672, 123 P. 1073, 43 LRA (NS) 774, also the note in the LRA volume following the reported case; and note, 62 LRA beginning at page 264; also State v......
  • State v. Schuman
    • United States
    • Washington Supreme Court
    • December 23, 1915
    ... ... 146 ... This ... exception has been recognized and adopted as a basis of ... decision by this court in many cases. State v ... Pittam, 32 Wash. 137, 72 P. 1042; State v ... Craddick, 61 Wash. 425, 112 P. 491; State v ... Downer, 68 Wash. 672, 123 P. 1073, 43 L. R. A. (N. S.) ... 774; State v. Wappenstein, 67 Wash. 502, 121 P. 989; ... State v. Hazzard, 75 Wash. 5, 16, 134 P. 514; ... State v. Shea, 78 Wash. 342, 347, 139 P. 203. The ... similarity of the other offenses with that testified to by ... ...
  • Wool v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 6, 1918
    ...C. 318, 17 S. E. 688, 24 L. R. A. 126; Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21, 40 Am. St. Rep. 791; State v. Downer, 68 Wash. 672, 123 Pac. 1073, 43 L. R. A. (N. S.) 774. Notes: 44 Am. Rep. 300; 105 Am. St. Rep. 983; 62 L. R. A. 218; 43 L. R. A. (N. S.) 670, 756, 780; 11 Eng. Rul.......
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