State v. Easton, 38830

• Decision Date: 15 December 1966
• Docket Number: No. 38830,38830
• Citation: 69 Wn.2d 965,422 P.2d 7
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Larry C. EASTON, Appellant.

Page 965

69 Wn.2d 965

422 P.2d 7

The STATE of Washington, Respondent, v. Larry C. EASTON, Appellant.

No. 38830.

Supreme Court of Washington, Department 1.

Dec. 15, 1966.

Harvey Erickson, Spokane, for appellant.

George A. Kain, Pros. Atty., Lee A. Larson, Deputy Pros. Atty., Spokane, for respondent.

JAMES, Judge. ^*

Appellant was charged, tried before a jury, and convicted of the crime of grand larceny. The information alleged:

That the said defendant, Larry C. Easton, in the County of Spokane, State of Washington, on or about the 6th day of November, 1965, then and there being, did then and there wilfully, unlawfully and feloniously, with intent to deprive and defraud the owner thereof, receive into his possession conceal and aid in concealing and withholding property wrongfully appropriated and stolen, knowing the same to have been so wrongfully appropriated and stolen, to-wit: Social Security Insurance Check No. 46,917,768, dated August 3, 1965, in the amount of Ninety-five Dollars ($95.00), and the property of and belonging to another.

Appellant called no witnesses and did not testify himself. The evidence which satisfied the jury as to his guilt was as follows: Mary Farrar operated a small rooming house in Spokane. On August 3, 1965, she accepted the social security check described in the information in payment of room rent. That day, two of her friends, appellant and Larry Olson, called on her for a social visit. They spent eight hours eating and drinking. At some point of time the hostess became suspicious of her guests and secreted her cash in a dresser drawer in her bedroom. She hid the check in a wastebasket in the bathroom. While the two men were in the apartment it became necessary for her to leave on several occasions to attend to normal management functions.

About 7:30 in the evening she looked for her cash and discovered that it was missing. She called the Spokane Police Department and two detectives came and escorted appellant and friend to the police station where they were searched. They did not have the missing money, nor did the search turn up the social security check. Appellant and friend were released. They did not return to the apartment.

After releasing the men, the officers returned to the apartment and a search there turned up the missing cash under a rug. It was not until after the officers left the second time that Mary Farrar discovered that the social security check was no longer in the wastebasket.

No one, other than Mary Farrar, appellant and Olson was in the apartment that afternoon and evening prior to the arrival of the detectives. Subsequently Mary Farrar asked appellant if he had any knowledge of the check and its disappearance. He denied any knowledge.

In October 1965, appellant was confined in the county jail on an unrelated charge. There he met another inmate named Long. He told Long that he had some stolen property that he would like to dispose of. Long went to Deputy Sheriff Hadley and told him of appellant's conversation. Long then agreed to assist the sheriff in inducing appellant to disclose the stolen property.

On November 3, 1965, after appellant's release from jail, he and Long met in a cocktail lounge. Mary Farrar's missing social security check was exhibited to Long. Thereafter, the sheriff gave Long $75 with which to purchase the check from appellant. Long obtained the check from appellant on November 6, 1965, and later paid him the $75 received from the sheriff, telling appellant that he had to discount the check $20 to his buyer.

On August 20, 1965, Mary Farrar had reported the theft of the check and made claim thereon to the Treasury Department. Subsequently the Treasury Department issued a stop payment notice on the check and honored Mary Farrar's claim for reimbursement.

Appellant's assignment of error No. 1:

The information did not state a crime in that the owner or possessor of the property is not alleged in the information * * *.

Over 70 years ago this court stated:

It is not necessary under our Code, or under any system of pleading, to allege in the indictment for larceny in whose possession the property is, but it is sufficient to allege and prove that the property stolen was the property of another. State v. Coss, 12 Wash. 673, 675, 42 P. 127 (1895).

This ruling was adhered to in State v. Kruger, 145 Wash. 654, 655, 261 P. 383, 384 (1927), where it held:

It has long been held that it is not necessary for the state to identify stolen property as belonging to any specified individual. Convictions of larceny have been affirmed on the proof that the property involved did not belong to the defendant, while its actual ownership could not be positively shown. State v. Coss, 12 Wash. 673, 42 P. 127; State v. Smith, 40 Wash. 615, 82 P. 918, 5 Ann.Cas. 686; State v. Eddy, 46 Wash. 494, 90 P. 641; State v. McIntyre, 53 Wash. 178, 101 P. 710; State v. Ray, 62 Wash. 582, 114 P. 439.

Appellant further argues that we should require the identification of the owner of stolen property to enable an accused to raise a plea in bar of subsequent prosecution for the same offense. A similar contention was disposed of in State v. Martin, 94 Wash. 313, 316, 162 P. 356, 357 (1917):

The cases holding that it is necessary to allege ownership in charging the crime of receiving stolen property, and there are many such cases, are based not upon the idea that ownership is an essential element of the crime, but that an allegation of ownership is necessary as a matter of description; that the transaction is identified not only by a description of the property, but also by the ownership; that identity of the property embraces the element of ownership as a necessary part of the description. The fundamental reason upon which these cases seem to be based is that the information or indictment must upon its face so completely identify the transaction that a judgment of conviction or acquittal would constitute a bar to a subsequent prosecution for the same offense. In view of the rule permitting parol evidence to be introduced for the purpose of identifying the offense where a plea of former jeopardy is interposed, this reason loses much of its force. These cases hold also that, if the name of the owner is unknown, an allegation to that effect will excuse the failure to state ownership. It is difficult to see how an allegation that the owner is unknown would in any manner tend to identify the offense for any purpose. Manifestly it would not furnish the accused any useful information nor assist him in the preparation of his defense; and if the judgment subsequently should be pleaded in bar of another prosecution, the identity of the offense would have to be established by looking to other descriptive allegations or by resorting to oral testimony.

The check in question here was identified in detail in the information and was introduced in evidence. It is inconceivable that appellant's right to a plea of former jeopardy could be impaired.

Appellant's assignment of error No. 2

The court improperly refused to dismiss the case at the end of the state's case because the evidence showed the following:

a. The social security check No. 46,917,768 had no value because payment on said check had been stopped.

b. Only $75.00 had been paid for the check.

c. The sheriff knew the check to be worthless at the time he purchased it.

d. There was no proof at the time of trial that anyone owned or claimed the check.

Appellant's argument in support of his second assignment is grounded on the assumption that the transaction which allegedly constituted grand larceny was the sale of the check to the sheriff for the sum of $75. Hence, appellant reasons: (1) Payment had been stopped; therefore, the check itself was in fact worthless. (2) The sheriff knew that the check was stolen so he could not be a holder in due course (an innocent purchaser for value) even if it had value. (3)...