State v. Etheridge, 39700
| Decision Date | 09 July 1968 |
| Docket Number | No. 39700,39700 |
| Citation | 443 P.2d 536,74 Wn.2d 102 |
| Parties | STATE of Washington, Respondent, v. Jack ETHERIDGE, Appellant. |
| Court | Washington Supreme Court |
Richard J. Glein, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., Thomas S. Wampold, Deputy Pros. Atty., Seattle, for respondent.
*
The defendant, Jack Etheridge, and his wife, Joyice, were charged by information with two counts of grand larceny by check. 1 Court two was dismissed on a challenge to the sufficiency of the evidence and we are not here concerned with it. The jury found the defendant, Jack Etheridge, guilty of count one. The following facts are pertinent to his appeal from the judgment entered by the trial court.
In late November, 1966, defendant and his wife moved to this state from the state of Virginia, after a two-month stopover in Florida. In December, 1966, defendant's wife opened a bank account with a Seattle bank with a check in the sum of $275, which she drew on a Virginia bank. The check was not honored. Later, she sold her automobile for $250 and deposited that amount in the Seattle bank. Fourteen checks, totaling $11,564.15, were drawn on the Seattle account by both defendant and his wife.
Defendant visited the showroom of Tom Chapman Ford on several occasions, decided to purchase a new station wagon, and delivered three checks to cover the purchase price. All of the checks were dated the day of the sale, December 16, 1966. Defendant and his wife testified that the salesman was instructed to hold the checks at the time they were delivered to him because defendant had insufficient funds, but was expecting some money from a sale of a business in Virginia. Defendant testified that the salesman agreed to hold the checks, but the salesman testified that he was told to hold only two of the checks and no instructions were received concerning the third check. Count one of the information is based on that check.
Defendant and his wife were arrested in Great Falls, Montana after the bank returned the check for insufficient funds. Defendant was driving his own automobile at that time, and his wife was driving the new station wagon. They were using credit cards issued in the names of third persons to finance their trip. Defendant had removed the Washington license plates from the station wagon and replaced them with Florida plates, which had previously been issued to Mrs. Etheridge and had been removed from the automobile she had sold for $250. Defendant explained on the stand that he removed the Washington license plates from the station wagon because they had expired, that he was merely making a business trip to Montana, that he had telephoned the car dealer and left word with a secretary that he was going to Montana on business, and that no effort was made to conceal his identity or that of his wife while in Montana. He explained that he was driving his own automobile which had license plates which were known to the Washington car dealer, that he and his wife stopped at a Montana Ford dealer's established on several occasions to have adjustments made on the new automobile, and on those occasions they used their correct names.
The assignments of error basically present three major issues:
(1) May the defendant be found guilty of grand larceny by check for the issuance and delivery of a check, which the payee agreed to hold for presentation until a subsequent date?
(2) Were the requested out-of-state witnesses material to the defense, and was it, therefore, error for the trial court to fail to certify and request their attendance?
(3) Was it error to permit the prosecuting attorney to cross-examine on the use of the credit cards of third persons, thereby admitting evidence of another unrelated offense?
Defendant first contends that the trial court erred when it refused to give his proposed instruction:
If you find that the defendant told the complaining witness that the check would not clear the bank at the time it was given, there has been no larceny.
The basis of the proposed instruction is defendant's position that a check which the payee agrees to hold until a future date 2 is equivalent to a postdated check, and a postdated check will not support the charge of larceny by check because it is a promise to discharge a present obligation at a future date--a credit transaction. Therefore, defendant's fraudulent intent was negatived, and there could have been no reliance by the dealer on existing funds to cover the check. Even assuming that a check which is to be held by the payee is equivalent to a postdated check, 3 defendant's statement of the law incorporated within his proposed instruction is not the law of this state.
Defendant points to Annot., 29 A.L.R.2d 1181 (1953), which reveals a division of authority on the question of whether 'worthless check' statutes 4 apply to postdated checks.
Defendant argues that the basic reasons for excepting postdated checks from the 'worthless check' statute likewise apply to the crime charged in the instant case. He contends that when a seller knowingly accepts a postdated check as payment for goods, there can be no present intent on the part of the buyer to commit fraud, the transaction is essentially a credit transaction, and the buyer is merely promising to have funds at a future time. In support of his position, defendant cites Commonwealth v. Kelinson, 199 Pa.Super. 135, 184 A.2d 374 (1962); State v. Eikelberger, 72 Idaho, 245, 239 P.2d 1069, 29 A.L.R.2d 1176 (1951); State v. Carr, 160 Wash. 83, 294 P. 1016 (1930).
Defendant maintains that State v. Carr, supra, holds that the 'worthless check' statute is inapplicable to postdated checks. In that case, the appeal of the accused was based on the argument that the instruction given by the trial court was incorrect solely because it made the knowledge and consent of the postdating on the part of the party receiving the check a prerequisite to a finding of guilt. The court held only that the instruction was in accordance with the accused's theory of the case.
There are numerous cases from other jurisdictions which support defendant's position, but we believe that the more logical approach is stated in White v. State, 135 Neb. 154, 158, 280 N.W. 433, 436 (1938):
The guilt of the defendant would be necessarily determined by his intention to defraud, whether the check is payable on demand or postdated.
The court in People v. Westerdahl, 316 Ill. 86, 90, 146 N.E. 737, 739 (1925), stated:
The fact that the check was postdated does not take the case out of the statute. By drawing and tendering the check, the purpose was presumed to be to induce the belief that it would be paid upon presentation. * * * Only upon the assumption that the check was good did the plaintiff in error obtain delivery of the new automobile. The agreement required him to pay the balance of $932.62 in money. His delivery of the check as such payment necessarily assumed the ownership of that much money or deposit to his credit in the bank. The release dated November 4, 1922, the day on which the transaction was consummated, recited the payment of that sum. We are satisfied that the automobile was delivered in reliance upon the check and not upon the personal credit of the plaintiff in error.
In State v. DeNicola, 163 Ohio St. 140, 144, 126 N.E.2d 62, 65 (1955), the Supreme Court of Ohio stated:
All the elements of fraud appear to be in the transaction between defendant and the payee of the check. It is quite clear that on November 3 the payee of the check parted with a house trailer in consideration of the defendant's payment by check. The defendant knew at the time that neither he nor his corporation had any funds in the drawee bank. Even resolving the conflict in the testimony concerning knowledge of the postdating on the part of payee's agent in favor of the defendant, or conceding, as defendant contends, that the mere delivery of the postdated check was constructive knowledge that there were no funds in the bank at the time, the delivery of the check by the defendant was a representation by him to the payee that there Would be funds in the bank on the day the check was dated.
In addition, defendant was prosecuted under the larceny by check statute, RCW 9.54.010(2), rather than the 'worthless check' statute, RCW 9.54.050. The question before this court, therefore, is whether the former statute is broad enough to encompass the activities with which defendant is charged and if so, whether the court adequately instructed the jury. 32 Am.Jur.2d False Pretenses § 19 (1967). 5
State v. Spitko, 2 Conn.Cir. 99, 195 A.2d 577 (Cir.Ct., App.Div.1963), involved a prosecution for larceny by check under a statute very similar to RCW 9.54.010(2). The court noted that the statute had two distinct sections. One dealt with the obtaining of another's property by means of a false token, pretense, or device with intent to defraud; the second penalized the obtaining of another's property by means of a check or order for the payment of money when the defendant knows he is not entitled to make such drawing. The court found no error in the charge or the conviction under the second section of the statute, even though the check was postdated, and the defendant argued that there was no misrepresentation of a past or existing fact which would bring him within the purview of the false pretenses statute.
In the present case, it was charged in the words of the first part of RCW 9.54.010(2) that Jack Etheridge * * * with intent to deprive and defraud the owner thereof, did willfully, unlawfully and feloniously obtain from the owner * * * merchandise of a value in excess of $25.00 * * * by means of color and aid of a check and draft and an order for the payment and delivery of property or money knowing that the maker and drawer of such check, draft and order was not authorized and entitled to make and draw said...
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