State v. Haynes, 38696
| Decision Date | 27 April 1967 |
| Docket Number | No. 38696,38696 |
| Citation | 426 P.2d 851,71 Wn.2d 136 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Frank HAYNES, Appellant. |
Charles E. Hunter, Everett, for appellant.
Robert Schillberg, Pros. Atty., Donald E. Priest, Merle E. Wilcox, Deputy Pros. Attys., Everett, for respondent.
*
Count 1 of an information filed in the Superior Court for Snohomish County charged the defendant with the crime of attempted grand larceny by check. Count 2 of the information charged him with grand larceny by check. A jury found the defendant guilty on both counts. From the judgment of conviction as to both counts the defendant has appealed to this court.
A brief summary of the pertinent facts involved in the incident is as follows:
The defendant had a bank account at the Bank of Everett, and on June 17, 1965, the balance in the account was $169.85. On that day the defendant, with his fiancee and another woman, went into Cuthbertson's Luggage Shop in Everett, to pick up two suitcases out of a set the defendant had previously selected and put aside without paying for them. These two suitcases were taken from the store by the defendant and he gave a check (exhibit No. 1) in the amount of $328.43. The store owner testified that the total purchase was approximately $328 in value.
The defendant and the two women took the suitcases to the C. C. Chaffee Company in Everett, where the women selected clothing for themselves valued by a witness at $1,469.12. The defendant signed a Bank of Everett check form (exhibit No. 13) made payable to C. C. Chaffee Company for $1,469.12 and gave it to a store employee, but before any clothes were removed from the store an Everett policeman arrived and arrested the defendant. The policeman had been summoned after the Bank of Everett had refused to honor the check given by the defendant in payment for the luggage.
It is contended that the instrument (exhibit No. 13) upon which count 1 is predicated is not a check in that the only designation of the amount to be paid was in figures in the space where the amount is ordinarily written in letters. By statute a check has been declared to be 'a bill of exchange drawn on a bank, payable on demand. * * *' RCW 62.01.185. A bill of exchange is defined in RCW 62.01.126 as 'an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer.'
The instrument was signed by defendant and it stated an unconditional order in writing for a bank to pay on demand to order or to bearer a sum certain. We are of the opinion that this instrument is a check within the contemplation of RCW 9.54.010 and RCW 9.54.090, even though the amount payable is not in letter form, but is only in figures. It has been held that if the amount payable is in figures only it would not be fatally defective to that instrument. Sweetser v. French, 54 Mass. (13 Met.) 262 (1847).
It is noted that in 1923 a Washington statute stated one requirement of a negotiable promissory note to be 'in Writing * * * signed by the maker * * *.' Laws of 1899, ch. 149, § 184, p. 371. In Citizens Bank of Georgetown v Jones, 127 Wash. 294, 220 P. 787 (1923), a promissory note was, in effect, held to be enforceable even though the amount payable was stated on the note in figures only, and was not even written in the space designated for declaration of the amount payable.
Notwithstanding the fact that no exception was interposed to instruction No. 6, the defendant contends that the court commented on the evidence by said instruction in violation of art. 4, § 16 of the state constitution which provides that 'Judges shall not charge juries with respect to matters of fact, nor comment thereon, * * *'; hence no exception is necessary if a comment was made. We agree with the defendant that 'where, however, the instructions invade a constitutional right of the accused, it is not necessary, in order to have such error reviewed, that an exception be taken * * *.' State v. Warwick, 105 Wash. 634, 637, 178 P. 977. 978 (1919); State v. Marsh, 126 Wash. 142, 217 P. 705 (1923). However, did the trial court comment on the evidence? The answer is no.
That portion of instruction No. 6 which is involved in this argument is as follows:
As to Count I, if you are convinced beyond a reasonable doubt that the defendant, Frank Haynes, did, in the County of Snohomish, State of Washington, on or about the 17th day of June, 1965, By color and aid of an instrument received in evidence and marked as Exhibit '13', wilfully attempt to obtain from Chaffee Company merchandise of the value of more than $25.00 in lawful money. * * * (Italics ours.)
The defendant's argument is premised upon the fact that the jury could conclude that the court had told it that exhibit No. 13 is the check by which the defendant unlawfully attempted to obtain merchandise from the Chaffee Company, and hence a comment on the evidence. We do not believe that the language in this instruction is subject to such criticism and in any way productive of such result. The instruction only informs the jury that in order to find the defendant guilty, it must find tht exhibit No. 13 is the instrument by which he attempted to defraud the Chaffee Company. There is no assumption of fact in this instruction that the defendant was in any way involved in the alleged criminal activities.
It is also argued that instruction No. 6 is erroneous in that it departs from and is at variance with the information filed against the defendant. We hasten to say that this is not a case wherein an instruction is given upon which the defendant could be found guilty of a crime not charged in the information as was the situation in State v. Thompson, 68 Wash.Dec.2d 527, 413 P.2d 951 (1966). In the instant case the defendant was charged with attempted grand larceny by check, and the instruction submitted to the jury stated if the defendant 'by color and aid of An instrument received in evidence and marked as Exhibit '13', wilfully attempt to obtain from Chaffee Company merchandise of the value of more that $25.00 in lawful money * * *' (Italics ours), he should be found guilty on count 2. We have previously pointed out in this opinion that exhibit No. 13 is, as a matter of law, a check. Since the instrument referred to in instruction No. 6 is exhibit No. 13, a check, the jury could not be...
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State v. Henderson
...right"); State v. Mak, supra at 749, 718 P.2d 407; State v. Peterson, 73 Wash.2d 303, 306, 438 P.2d 183 (1968); State v. Haynes, 71 Wash.2d 136, 139, 426 P.2d 851 (1967); State v. Warwick, 105 Wash. 634, 637, 178 P. 977 (1919). 3 In such cases, we allow review of error affecting constitutio......
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State v. Rodriguez, 17199-2-I
...and considers the evidence in light of the specific circumstances of the case, including the parties' theories. See State v. Haynes, 71 Wash.2d 136, 426 P.2d 851 (1967) (no evidence from which jury could conclude lesser included crime of petit larceny rather than grand larceny was committed......
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...containing an unconditional promise to pay a sum certain in money to the order of the payee. RCW 62A.3--104. See State v. Haynes, 71 Wash.2d 136, 426 P.2d 851 (1967). A credit card, on the other hand, is a mere token or indicia that the person named on it has credit with the company which i......
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