State v. Hooker

• Citation: 170 P. 374,99 Wash. 661
• Decision Date: 30 January 1918
• Docket Number: 14247.
• Parties: STATE v. HOOKER.
• Court: United States State Supreme Court of Washington

170 P. 374

99 Wash. 661

STATE v. HOOKER.

No. 14247.

Supreme Court of Washington

January 30, 1918

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

R. L Hooker was convicted of an offense, and he appeals. Affirmed.

Mulligan & Burdsley, of Spokane, for appellant.

John B White and Wm. C. Meyer, both of Spokane, for the State.

ELLIS C.J.

Defendant, R. L. Hooker, was tried separately upon an information charging him and one Pete Stalberge with the crime of larceny under the provisions of Rem. Code, § 2601, subd. 2. The first count charged the commission of the crime by color or aid of a false instrument or order. No evidence was introduced in support of this count. The second count charged the commission of the crime by false representations and pretenses. Though extremely inartificially drawn, being overladen with unnecessary verbiage and other unsustained charges, it sufficiently alleged that the defendant, Hooker, obtained from one Olga Sebo, as a loan to and upon a promissory note and deed of security made by Stalberge, the sum of $175 in money upon false and fraudulent representations and pretenses that Stalberge was a farmer; that he was wealthy; that he owned a great deal of property; that he was a perfectly safe man to make a loan to; and that the real estate conveyed by the deed as security was worth $1,000. The sufficiency of the information was in no manner questioned in the court below.

At the trial evidence was introduced by the state tending to establish the following facts: Hooker was engaged in the real estate and loan business in the city of Spokane. Complaining witness, Olga Sebo, bookkeeper for an undertaker's establishment, desiring to invest her savings in a loan, visited Hooker's place of business for that purpose. Hooker told her, in substance, that Stalberge wanted a loan of $175; that he was a very upright, very wealthy young Norwegian farmer who owned a great deal of property, and would give as security ten acres of land is Spokane county north of the city; that the land was worth $1,000; and that Stalberge was 'a perfectly upright man to make a loan to.' He claimed to have made other loans to the man Stalberge, and, exhibiting a book purporting to contain a record of such loans, said:

'You can see that Mr. Stalberge is a perfectly upright man and has taken care of these loans that I have transacted for him.'

She did not know Stalberge, and Hooker did not advise her where he could be found. A few days later she again called at Hooker's office accompanied by her brother, who testified that Hooker made substantially the same representations to them at that time. Relying upon these representations, Miss Sebo finally consented to make the loan. She testified that Hooker offered her a bonus of $15 in addition to the interest. Hooker testified that she demanded a bonus of $25, and that he finally agreed to allow her $15. At any rate the note was drawn for $190. At Miss Sebo's request it ran to Anna N. Sebo, her mother. It was agreed that Miss Sebo should meet Hooker and Stalberge and close the loan at the Scandinavian-American Bank, in which bank was to be deposited in escrow as security a deed of the ten acres from Stalberge to Miss Sebo and a certificate of title to the land executed by an abstract company. At the appointed time Hooker appeared at the bank, but without Stalberge. Miss Sebo paid the $175 to Hooker, and the papers were deposited in the bank to remain in escrow till July 4, 1915, when the note was to become due. Hooker claimed that he subsequently turned over to Stalberge $165, retaining $10 for his own commission. During these transactions neither Miss Sebo nor her brother ever met Stalberge, and it fairly appears that Hooker knew this, and knew that she was acting upon his own representations throughout. In July, 1915, the loan becoming due and remaining unpaid, Miss Sebo not knowing where to find Stalberge, repeatedly applied to defendant to procure the money for her, but was continually put off with the statement that he could not find or had been unable to see Stalberge. Once he agreed to have Stalberge come to the undertaker's office at a certain time. Defendant appeared, but Stalberge did not. Finally through another source Miss Sebo located Stalberge and made an arrangement to meet him and Hooker at Hooker's office. At the appointed time she, her brother-in law, and her employer went to Hooker's office, but neither Hooker nor Stalberge appeared. The party then went to Hooker's house and after a heated interview it was arranged by telephone with Stalberge to meet them at Hooker's office that evening at 6 o'clock. When they kept that appointment Hooker appeared, but Stalberge did not. Hooker, pleading another engagement, remained but a short time, advised Miss Sebo to bring suit against Stalberge and file a lis pendens to the up his property, stating that he considered himself morally responsible for the debt, and would pay it if she could not collect it from Stalberge. Miss Sebo testified that meanwhile she had made investigation, and found that the ten acres had little value, and that she was unable to find that Stalberge had ever been a farmer or owned any property free from incumbrance. There was no evidence that Stalberge ever owned any other property, except a statement of Hooker that Stalberge had applied to him for a loan on a piece of land in Stevens county near the British Columbia line. In April, 1916, Miss Sebo withdrew the deed and certificate of title from escrow. She visited the ten acres in September, 1916, and found it covered with scrub timber and that it was of little value. There was much evidence showing that the land was not worth more than $7 to $10 an acre. There was no evidence to the contrary. Defendant denied that he represented that Stalberge was very wealthy, but admitted that he stated that Stalberge owned other property. He did not deny that he represented that the 10 acres was worth $1,000, but asserted that this was a mere expression of his opinion. It appeared, however, that at different times he had used this same land in securing several other loans, and hence must have known its real character.

In July, 1916, a preliminary hearing was had before a justice of the peace, and defendant was bound over to appear before the superior court. On August 10, 1916, an information was filed in that court the same as that upon which he was tried, except that the name of the person defrauded was stated as Anna N. Sebo instead of Olga Sebo. On November 9, 1916, by leave of court, the original information was withdrawn, and the new one filed. The case was set for trial on November 14, 1916. Before the jury was impaneled defendant objected to being tried on that day mainly on the ground that he had not been given sufficient time to prepare his defense. The objections were overruled. The jury returned a verdict of guilty. Defendant moved for a new trial, which motion was overruled. From the order denying a new trial and from the judgment upon the verdict, defendant appeals.

There are several assignments of error, but we shall consider only those which appellant has seen fit to discuss in his brief.

1. It is first claimed that the court erred in overruling defendant's objection to proceeding with the trial on November 14, 1916. In support of this objection it appears that an affidavit was filed, but, inasmuch as this affidavit is not made a part of the statement of facts, we cannot consider it. Hayworth v. McDonald, 67 Wash. 496, 121 P. 984; Congdon v. Aumiller, 79 Wash. 616, 140 P. 912. There is nothing in the record before us from which prejudice can be inferred. A preliminary hearing was had on June 6, 1916, and the first information was filed August 10, 1916. These things fully advised appellant of the nature of the charge against him, and there is no showing whatever that, had the trial been delayed, any other or different defense than that made would have been or could have been presented. We find no error in the overruling of appellant's objections.

2. Appellant had testified in his own defense. Certain impeaching witnesses who had testified that they knew him, knew his reputation for truth and veracity in the community where he lived and did business, and that it was very bad, were permitted further to testify, in substance, that from their knowledge of that reputation they would not believe him on oath. This is assigned as error. In support of his position appellant cites two decisions of this court: State v. Coates, 22 Wash. 601, 615, 616, 61 P. 726, and State v. Miles, 15 Wash. 534, 46 P. 1047. The Coates Case is not applicable. Though the admittedly proper question as to whether the impeaching witness knew the reputation of the witness whose testimony was there assailed for truth and veracity in the community in which he lived had been answered in the affirmative, and the witness had stated that it was bad, the final question as to whether the witness would believe him on oath was not confined to a knowledge or opinion based upon that reputation. By the great weight of modern authority the question as to personal belief must be based upon knowledge acquired from reputation, and not upon personal dealings or personal acquaintance of the impeaching witness with the witness assailed. Doner v. People, 92 Ill.App. 43; State v. Polhemus, 65 N. J. Law, 387, 47 A. 470; Spies v. People, 122 Ill. 1, 12 N.E. 865, 17 N.E. 898, 3 Am. St. Rep. 320.

The case of State v. Miles, in so far as it can be regarded as deciding the question, is apposite. In that case, however, the judgment of conviction was reversed for another reason. Touching the question here involved the court, without discussion, said:

'We think the weight of

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