State v. Hartwig

• Decision Date: 29 July 1954
• Docket Number: No. 32760
• Citation: State v. Hartwig, 273 P.2d 482, 45 Wn.2d 76 (Wash. 1954)
• Court: Washington Supreme Court
• Parties: STATE, v. HARTWIG.

Page 76

45 Wn.2d 76

273 P.2d 482

STATE, v.HARTWIG.

No. 32760.

Supreme Court of Washington, Department 1.

July 29, 1954.

Fred M. Bond, South Bend, for appellant.

Don G. Abel, John W. Schumacher, Aberdeen, for respondent.

HAMLEY, Justice.

John Hartwig was convicted of the crime of grand larceny.He appeals from the judgment and sentence which was entered, and from the denial of his motions in arrest of judgment and for a new trial.

The evidence produced by the state tended to show the following: On December 15, 1952, Hartwig advertised in a daily newspaper for a partner in the sport-fishing business at Westport.One Lloyd Gladson answered the advertisement, and met with Hartwig on the evening of December 15th.At this meeting, Hartwig agreed to sell to Gladson for thirty-five hundred dollars a one-half interest in the fishing boat Weepoose, plus a one-half interest in the business of chartering the boat.In making this proposal, Hartwig represented that he was the sole owner of the Weepoose, and that the boat was free and clear of any encumbrance.

Induced by this representation, Gladson gave Hartwig one hundred dollars in currency, as earnest money to bind the agreement to sell.It was thereafter learned that Hartwig's representation was false and fraudulent, in that (1) there was an outstanding mortgage against the boat; (2) one Wallace A. Lister owned a one-fourth interest in the boat; and (3) Hartwig had entered into an agreement with the United States customs service whereby the boat was not to be sold.

One of the assignments of error raises the question whether the trial court erred in admitting, and thereafter refusing to strike, certain testimony given by Lister.Appellant argues that this testimony was not material to the case, and was prejudicial because it tended to show that appellant was guilty of a similar fraud in another transaction.

In order to establish its case, it was necessary for the state to prove that, at the time Hartwig represented to Gladson that he owned the Weepoose, free and clear, he knew that Lister then owned an interest in the boat.To prove this, the state called Lister as a witness.He testified that, prior to the Gladson transaction, Hartwig had entered into a partnership arrangement with Lister, in connection with which Hartwig sold Lister a one-fourth interest in the boat.

The testimony elicited from Lister, however, was not confined to the question of whether Lister had previously acquired from Hartwig an interest in the boat.He was asked to tell the details of his transaction with Hartwig, and in this connection, he testified that Hartwig had told him on numerous occasions that the Weepoose was free and clear of any mortgage.Lister further testified that his attorney later found out that there was a mortgage against the boat, but that Hartwig even then persisted in saying that the boat was free and clear.Lister testified that his representative then pulled the mortgage out of his desk and confronted Hartwig with it.According to Lister, Hartwig then said: 'Well, I guess it's all done and the deal has fell through.'

Appellant's counsel objected to this testimony and, after it was received, moved to strike it and instruct the jury to disregard it.His objection was overruled and his motion was denied.

This court, in common with all others, has held that a defendant must be tried for the offenses charged in the indictment or information, and that to introduce evidence of unrelated crimes is grossly and erroneously prejudicial.State v. Goebel, 36 Wash.2d 367, 218 P.2d 300, and cases cited.To this rule, certain exceptions have developed, and evidence of other unrelated crimes is admitted to show (1) motive, (2) intent, (3) the absence of accident or mistake, (4) a common scheme or plan, or (5) identity.This list of exceptions is not necessarily exclusive, the true test being whether the evidence as to other offenses is relevant and necessary to prove an essential ingredient of the crime charged.State v. Goebel, 40 Wash.2d 18, 240 P.2d 251, and cases cited.

Where the state, in a criminal action for larceny by fraudulent representations, has offered evidence of other frauds, to show criminal intent, we have held such evidence admissible under the above exceptions.SeeState v. Craddick, 61 Wash. 425, 112 P. 491;State v. Kreiss, 133 Wash. 256, 233 P. 649;State v. Clamp, 164 Wash. 653, 3 P.2d 1096, 80 A.L.R. 1302;State v. Seidenschwarz, 191 Wash. 111, 70 P.2d 780.

But here the state did not offer the evidence in question to show criminal intent, or for any other reason which would be permissible under the above exceptions.

Nor can it be assumed that Lister's reference to previous misrepresentations concerning the existence of a mortgage was unavoidable in providing the state's allegation that there was such a mortgage.The state disavows that this was one of the purposes of Lister's testimony.Moreover, the mortgage had already been introduced in evidence through another witness, and its existence had already been conceded by appellant.Even if Lister's testimony had been necessary to establish the existence of the mortgage, there was no need to make reference to misrepresentations concerning it in connection with the sale of an interest in the boat to Lister.

The evidence in question was offered only to show that Lister had purchased an interest in the boat from appellant prior to the latter's transaction with Gladson.This could have been done without the witness making reference to misrepresentations in connection with his purchase.The...