State v. Garland

• Decision Date: 18 November 1911
• Parties: STATE v. GARLAND.
• Court: Washington Supreme Court

118 P. 907

65 Wash. 666

STATE v. GARLAND.

Supreme Court of Washington

November 18, 1911

Additional Opinion, November 28, 1911.

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

William H. Garland was convicted of larceny, and he appeals. Affirmed.

Willett & Oleson and John Manning, for appellant.

John F Murphy, Hugh M. Caldwell, and Herbert B. Butler, for the State.

MOUNT J.

The defendant was convicted of the crime of grand larceny. He appeals from a judgment pronounced upon the verdict of a jury.

It appears that this is the second trial of the case upon the same state of facts. The defendant was found guilty upon the first trial, but upon his motion the court granted a new trial. The reason for granting this motion does not appear from the record, but appellant states that the motion 'was granted because of fatal variance and other reasons.' Thereafter the prosecuting attorney filed another information as follows, omitting the formal parts 'The said William H. Garland, in the county of King, state of Washington, on the 10th day of January, A. D. 1910, with intent to defraud, did fraudulently, falsely, designedly, unlawfully, and feloniously pretend and represent to one Job L. Beardslee that a certain corporation known as the Apex Coal Company of the city of Seattle, in said state of Washington, then and there owned a coal mine at Coos Bay in the state of Oregon; that said Apex Coal Company was then engaged in shipping coal into the city of Portland, in the state of Oregon, from Coos Bay, and was then operating a line of steamers between said Coos Bay and said city of Portland, and was then delivering daily to the yard of said corporation in said city of Portland several hundred tons of coal; that said corporation them owned $100,000 worth of bonds in the Consolidated Coal Company of St. Louis, which bonds had never at any time been of any value less than the sum of $103 for each; and that said corporation then had on deposit with the National Bank of Commerce at said city of Seattle government bonds of the value of $39,000, upon which said corporation could at any time realize the sum of $30,000. And said Job L. Beardslee, then and there believing the false pretenses and representations so made by said William H. Garland and relying thereon, and being then and there deceived thereby, was then and there induced by reason thereof, and not otherwise, to deliver, and did then and there deliver, to said William H. Garland a check payable for the sum of $1,000 in money, the check, money, and property of said Job L. Beardslee, in payment of 10 shares of the stock of said corporation. And said William H. Garland did then and there fraudulently, unlawfully, and feloniously receive and obtain said money by means of said false and fraudulent pretenses and representations, with intent then and there to defraud.' After this second information was filed, the defendant filed a motion to quash the same for the reason that it did not state facts sufficient to constitute a crime, and, in case that this motion should be denied, then to strike out all the representations alleged to have been made, and in case that motion was denied then to make the information more definite and certain. These motions were denied, and the defendant was placed upon trial. He objected to the introduction of any evidence, 'on the ground that the state had no right to try the defendant on the information now before the court.'

It is argued that these motions should have been sustained because the information was filed without an order dismissing the first one and without permission of the court, and also because the information does not charge an offense and is indefinite and uncertain. We shall briefly notice these questions. It does not appear that leave of the court was obtained to file the second information, or that the first one was quashed. The reason for filing the second information is apparent. The first alleged that Mr. Beardslee was induced by false and fraudulent representations to deliver to defendant 'one thousand dollars ($1,000) in lawful money of the United States'; while the proof showed that Mr. Beardslee indorsed and delivered to defendant a certificate of deposit for $1,000. On account of this variance and 'for other reasons,' the new trial was granted. Thereupon this new information was filed, which differed from the first only in respect to the character of the property received. The second information, instead of alleging $1,000 in lawful money of the United States, alleged 'a check payable for the sum of $1,000 in money.' This court has repeatedly held that a new information may be filed in such cases. In State v. Riley, 36 Wash. 441, 78 P. 1001, we said: 'It is not error for a court to allow the information to be withdrawn, and another more perfect one be substituted in its stead. State v. Gile, 8 Wash. 12, 35 P. 417; State v. Hansen, 10 Wash. 235, 38 P. 1023; State v. Lytz, 25 Wash. 347, 65 P. 530. Nor was it error to do so after the court had first considered it and adjudged it sufficient.' In State v. Phillips, 118 P. 43, we held that this was not jurisdictional, and was waived where the information was not moved against on that ground.

Although it does not appear that an order of court ws made granting the permission to file a new information, we must assume that such permission was had, because the court treated the new information as filed and so considered it.

Appellant next argues that the information is fatally defective because it does not show for what purpose he made the representations, or that the stock of the Apex Coal Company was purchased on account of such representations. He then asks 20 questions of the information, of which these are examples: '(1) Whom did Garland intend to defraud? (2) For what purpose were the representations made? (3) In what capacity were the representations made to it, as individual or as an officer of the Apex Coal Company? (4) For whose benefit were the representations made?'--and so on, and then proceeds to argue that the information does not answer these questions. These or similar questions do not, we think, test the sufficiency of the information. The test is fixed by the statute as follows: 'The * * * information must contain,--* * * A statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.' Rem. &amp Bal. Code, § 2055. There can be no doubt that, when the defendant read this information, he readily understood that he was charged with having unlawfully obtained a check for $1,000 from Mr. Beardslee by means of the false and fraudulent representations stated, and that he received the money thereon with intent to deprive and defraud the owner thereof. This was...