State v. Gilmore, 32187

• Decision Date: 19 May 1953
• Docket Number: No. 32187,32187
• Citation: 42 Wn.2d 624,257 P.2d 215
• Court: Washington Supreme Court
• Parties: STATE, v. GILMORE.

Page 624

42 Wn.2d 624

257 P.2d 215

STATE, v. GILMORE.

No. 32187.

Supreme Court of Washington, Department 2.

May 19, 1953.

John W. Brisky, Harwood Bannister, Mount Vernon, for appellant.

Reuben C. Youngquist, George E. McIntosh, Mount Vernon, for respondent.

DONWORTH, Justice.

Defendant R. L. Gilmore was charged by information with committing the crime of grand larceny by color and aid of a check, as defined by RCW 9.54.010(2), cf. Rem.Rev.Stat. § 2601(2). He pleaded not guilty and his trial resulted in a verdict of guilty. His motion for a new trial was denied. From the judgment and sentence pronounced against him on the jury's verdict he has appealed.

At the trial the issuance and delivery of the check to the prosecuting witness and the receipt by appellant of $95 therefor were admitted. The only issue to be determined by the jury was whether or not appellant committed these acts with the intent to deprive and defraud the prosecuting witness of the sum of $95, knowing that he was not authorized or entitled to draw this money from the bank.

There was evidence admitted at the trial from which the jury was entitled to find as follows:

On Monday, July 2, 1951, between nine and ten o'clock a. m. appellant entered the Thrifty Foods store in Mount Vernon, Washington. For several months prior thereto he had bought his groceries in that store and was known to the proprietor, Mr. Leslie Christensen, as a customer.

Appellant told Mr. Christensen that he needed $95 that morning to pay the ferry fare on a truck he was taking over to one of the San Juan islands. He produced a blank check on the First National Bank of Burlington and asked Mr. Christensen to fill it out for him. At that time he had no account with that bank but he had previously had one there for two or three months. This account had been closed out on January 10, 1951, but he did not mention this fact to Mr. Christensen. Appellant signed the check which had been made out by Mr. Christensen and received from him $95 in cash. This check bearing appellant's signature and dated July 2, 1951, was admitted in evidence without objection.

On the same day appellant paid $91.81 to a used-car dealer in Anacortes to complete the payments on a 1937 Pontiac which he was buying and was given a receipt for that sum. The dealer signed the title certificate over to appellant who then drove to Mount Vernon where he had previously arranged to trade in the old car, using it as a down payment on the purchase of a 1950 Chevrolet.

Mr. Christensen deposited the check in his own bank in the usual course of business. On July 7, 1951, he was notified that the check would not be honored by the Burlington bank because appellant's account had been closed. He then tried to locate appellant but was informed that he and his family had left the state.

Mr. Christensen thereupon turned the check over to the police and on July 18, 1951, the information in this case was filed. Appellant was arrested in Fresno, California, in October, 1951, and was returned to Washington by a deputy sheriff of Skagit county. Shortly before the trial in March, 1952, appellant's attorney paid Mr. Christensen $95.

Appellant's defense was based upon his testimony that the transaction with Mr. Christensen took place on Saturday, June 30, 1951, instead of Monday, July 2, 1951, which was the date of the check. The legal basis of this defense was apparently that the instrument was a postdated check with the result that there could be no implied representation on June 30th that appellant then had sufficient funds on deposit in the Burlington bank to pay the check. Hence, the check would be considered merely as a draft payable at a future date.

This brings us to a consideration of appellant's two assignments of error.

Appellants's first assignment of error is that the trial court erred in denying his motion to set aside the verdict and grant him a new trial. His contention is that the proof was insufficient to show beyond a reasonable doubt that the date of the transaction was July 2, 1951, as alleged in the information. The evidence produced by the state relative to the exact date on which appellant signed and delivered the check and that produced by appellant was in conflict.

Mr. Christensen testified that the check was dated July 2, 1951, and that appellant signed it and received the money on that date. The used-car dealer in Anacortes testified that he received the final payment on the 1937 Pontiac from appellant and signed over the title certificate on July 2, 1951. He used his copy of the receipt given appellant for the $91.81 payment to refresh his recollection as to the date.

Appellant admitted completing the purchase of the Pontiac during the same morning that he signed the check and received the money from Mr. Christensen. He contended at the trial that Mr. Christensen and the used-car dealer in Anacortes were both mistaken as to the date. He testified that he signed the check on June 30th and not on July 2nd, that it was either undated or was postdated and that, therefore, the transaction was a loan, 'more or less.'

To support his contention that he could not possibly have signed the check on July 2nd, appellant, his wife, and a neighbor testified that he and his family were out of the state on that date. According to this testimony, appellant left the state on the afternoon of June 30th and did not return until July 3rd.

Even if it were incumbent upon the state to prove that the check was signed on July 2nd and no other day, the conflict in the evidence outlined above merely presented a question of fact for the jury. It was within the province of the jury to believe the testimony presented by one side and disbelieve that presented by the other. In this case the jury chose to believe the state's evidence. The verdict having been based on substantial, competent evidence, it will not be disturbed. State v. Kirkby, 20 Wash.2d 455, 147 P.2d 947; State v. Rosencrans, 24 Wash.2d 775, 167 P.2d 170.

The first assignment is clearly without merit.

Appellant next contends that the trial court erred in allowing the state to impeach his testimony on collateral matters. He argues that the only question in dispute was the date when the check was passed and that it was error to admit testimony as to appellant's reasons for cashing the check and the use to which he applied the proceeds.

Appellant took the stand in his own defense and testified that he signed the check on June 30th, that he advised Mr. Christensen at that time that he had insufficient funds in the bank, that he did not intend to defraud him and that the transaction was in the nature of a loan. All these material issues were in dispute. On cross-examination he testified that he did not know and could...