State v. Hoshor

• Decision Date: 17 December 1901
• Citation: 67 P. 386,26 Wash. 643
• Parties: STATE v. HOSHOR.[1]
• Court: Washington Supreme Court

67 P. 386

26 Wash. 643

STATE v. HOSHOR.^[1]

Supreme Court of Washington

December 17, 1901

Appeal from superior court, King county; Arthur E. Griffin, Judge.

J. A Hoshor was convicted of embezzlement, and appeals. Affirmed.

John E Humphries, Harrison Bostwick, P. V. Davis, William A Gillmore, James McNeny, and James Hamilton Lewis, for appellant.

Walter S. Fulton and John B. Hart, for the State.

MOUNT, J.

On March 28, 1900, H. G. Torrence drew his check upon the First National Bank of Seattle in favor of defendant for $20,500. On the same day Torrence and defendant went to the bank together, with this check, and, after Torrence had introduced defendant to the officers of the bank as his agent and attorney, the bank, upon presentation of the check, paid the money to defendant by opening an account with him, and passing the money therefor to his credit, issuing a pass book and check book, and debiting the account of Torrence in the amount of the check. It is claimed by the prosecuting witness that this money was given to the defendant as his agent for the purpose of paying certain debts owing by Torrence at the time to several persons, the amount of which debts was some $12,400. The balance of $8,100 was to be retained by defendant as his own money upon executing to the prosecuting witness at some future time certain deeds for certain mining properties. On the evening of the 28th of March, 1900 defendant left Seattle for Tacoma. On the next day,--March 29th,--in Tacoma, defendant drew his check upon the First National Bank of Seattle for the whole of the $20,500 deposited as aforesaid, and presented the check to the Pacific National Bank of Tacoma, which bank paid the check, and passed the amount thereof to defendant's credit. Shortly thereafter, and on the same day, the Pacific National Bank of Tacoma paid defendant $10,000 in gold, and also $5,000 by a cashier's negotiable check. On the 31st of March, 1900, the Pacific National Bank certified defendant's check for the remaining $5,000. Both these last-named checks were shortly afterwards paid to subsequent holders. When the gold above mentioned was paid to the defendant, $5,000 thereof was placed in a safety deposit vault and $5,000 deposited in the London & San Francisco Bank in Tacoma in the name of his aunt. On the 30th of March defendant, in company with his uncle, a co-defendant herein, went back to Seattle, and the prosecuting witness claims to have demanded on that day an accounting of the defendant for the said $20,500, which accounting was refused. On that same evening defendant and his uncle returned to Tacoma, and the next day were arrested, charged with the crime of embezzlement. Upon this charge defendant Hoshor was tried separately by a jury, found guilty, and, by the court, sentenced to the jail. From judgment and sentence this appeal is taken.

Counsel for appellant, in their brief, make three assignments of error, viz.: (1) Error in overruling defendant's demurrer to the information; (2) error in overruling the defendant's motion to exclude a private prosecutor employed by the prosecuting witness from assisting in the prosecution of said cause; (3) error in overruling the defendant's motion for a new trial. Under these assignments counsel for appellant argue 34 points. All of these, excepting the first two above named, and one error claimed on account of alleged misconduct of counsel for the prosecution, and one error claimed in the introduction of evidence, are based upon the instructions of the court given or refused. At the trial appellant's counsel prepared 54 written instructions covering 38 typewritten pages. We shall not undertake to discuss each of the 34 points argued, because many of them depend upon each other, and many of them, even if error, are harmless.

1. The charging part of the information reads as follows: 'That on the 28th day of March, A. D. 1900, in King county, state of Washington, the said J. A. Hoshor, being then and there the agent of one H. G. Torrence, was intrusted with the sum of $20,500 in lawful money of the United States, and of the value of $20,500 in lawful money of the United States, on account of the said H. G. Torrence. The said J. A. Hoshor then and there, by virtue of such agency, received and took into his possession for and on account of the said H. G. Torrence the sum of $20,500, the personal property of the said H. G. Torrence, and afterwards did then and there fail to account to the said H. G. Torrence for same, or any part thereof, and did then and there unlawfully, willfully, fraudulently, and feloniously take same and embezzle and convert the same to his own use as aforesaid; and he, the said J. B. Thompson, uncle of said J. A. Hoshor, in the manner and form aforesaid, at the time aforesaid, unlawfully, willfully, fraudulently, and feloniously did aid, counsel, abet, and assist,--contrary to the form of the statute,' etc. It is insisted that this information does not state any time when or place where the money was converted. Even if appellant is correct when he asserts that the phrase 'and did then and there unlawfully,' etc., refers to the word 'afterwards' in the preceding clause, still there can be no question that this clause fixes the place where the conversion occurred, viz., in King county. The only point decided in State v. Murphy, 9 Wash. 204, 37 P. 420, relied upon by appellant, is that the information in that case did not charge that the conversion was in King county. The time when, even with the construction placed upon the language by appellant, is fixed as after March 28, 1900; but this clause clearly refers to the only date named, which was March 28, 1900. The information is substantially in the language approved by this court in State v. Turner, 10 Wash. 94, 38 P. 864, and is sufficient.

2. It is insisted that the court committed error in denying defendant's motion to exclude counsel employed by the prosecuting witness from assisting the prosecuting attorney. In support of this motion affidavits were filed charging that such counsel was employed upon a contingent fee, and other charges not necessary to enumerate here. These charges are denied by affidavits filed in the cause, and the court, after hearing these affidavits, overruled the motion. This court in State v. Elswood, 15 Wash. 453, 46 P. 727, held that it was within the discretion of the trial court to allow special counsel to aid the prosecuting attorney in the prosecution of a case, and that such discretion would be interfered with only upon a showing of abuse thereof. After a careful reading of the affidavits, we are satisfied that the court did not abuse its discretion in this regard.

3. On errors alleged upon the denial of the motion for a new trial it is first insisted that the proof shows that the check for $20,500 on the First National Bank of Seattle was given by the prosecuting witness to the defendant, and that this check is not lawful money of the United States; that this check was converted, and not lawful money of the United States, and that there was, therefore, a fatal variance between the proof and the allegation in the information. If this position is correct, there can be no such crime in this state as embezzlement of money which is intrusted by check to another for a specific purpose. It is argued in appellant's brief that defendant could not be guilty of embezzling the check because it was presented for payment to the bank upon which it was drawn, and delivered to that bank upon its payment, as the defendant was authorized to do; and also that defendant cannot be guilty of embezzling the money, because the money was not intrusted to him, but a check, which check was not money. A large number of authorities are cited to the effect that a check is not money. This question was settled in this state in the case of State v. Krug, 12 Wash. 288, 41 P. 126. The court there said: 'The practical result of the transaction in this case was that, when this check was given to Fuhrman and was paid to Fuhrman by the New York exchange, and that amount charged to the account of the city, the city of Seattle had its account decreased by the amount of the check, and it was just as much a disposition of that $10,000 by the treasurer as though he had gone to the bank and got the money himself and paid it to Fuhrman.' So it is in this case. The check was simply the instrumentality by which Hoshor obtained the money from the bank, as much so as if Torrence had taken the $20,500 in gold in his hand, and passed it over to defendant, and defendant had immediately passed it back to the bank, and received credit for it. When Hoshor drew the money from the bank by his own check, and transferred it thereby to another, the effect was the same as if he had taken the identical money, and handed it by his own hand to that other. Com. v. Mead (Mass.) 35 N.E. 1125; Com. v. Smith, 129 Mass. 104; Com. v. Tuckerman, 10 Gray, 173; Territory v. Meyer (Ariz.) 24 P. 183; People v. Gallagher (Cal.) 35 P. 80; State v. Palmer, 40 Kan. 475, 20 P. 270; Roberts v. People (Colo. Sup.) 13 P. 631; Ex parte Ricord, 11 Nev. 287; People v. Civille, 44 Hun, 497. Upon this question the court gave the jury the following instruction: 'You are instructed that if you believe from the evidence beyond a reasonable doubt that there was money deposited in the First National Bank of Seattle on the 28th day of March, 1900, to the credit of H. G. Torrence, in excess of $20,500 in lawful money of the United States, and that Torrence drew a check on said bank for $20,500, and that the defendant then and there presented said check to said bank, and that the bank obeyed the directions contained in said check and charged the amount on its books to said Torrence and credited the...