State v. Jakubowski

• Decision Date: 26 December 1913
• Citation: 137 P. 448,77 Wash. 78
• Parties: STATE v. JAKUBOWSKI.
• Court: Washington Supreme Court

137 P. 448

77 Wash. 78

STATE v. JAKUBOWSKI.

Supreme Court of Washington

December 26, 1913

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Adam Jakubowski was convicted of grand larceny, and appeals. Affirmed.

Jay C Allen, of Seattle, for appellant.

John F Murphy, Crawford E. White, and Reah M. Whitehead, all of Seattle, for respondent.

ELLIS J.

The defendant was charged with the crime of grand larceny. The information was based upon the provisions of section 2601, Rem. & Bal. Code, and alleged in substance that on June 15, 1912, the defendant, being authorized by agreement to hold $300 belonging to one Jan Majeuski, as bailee and trustee, 'did then and there willfully, unlawfully, fraudulently, and feloniously withhold and appropriate the same to his own use with intent to deprive and defraud the said Jan Majeuski thereof.' The substantial facts, as developed in the state's evidence, were as follows: The prosecuting witness, Majeuski, in December, 1910, claimed to have lost three certificates of deposit for $100 each, one issued to him by the Seattle National Bank of Seattle and two by the First National Bank of Seattle. The banks refused to pay him the $300 represented by these certificates until he had furnished them indemnity bonds in double the amount deposited, executed by him and another acceptable bondsman. Majeuski was a Pole and had lived in this country only a few years. He was directed to the defendant, a fellow countryman, as one who might be willing to sign the bonds. The defendant finally agreed to sign the bonds and went to the banks with Majeuski, where his financial standing was investigated and found satisfactory, and on December 16 and 17, 1910, the bonds were executed by Majeuski and the defendant and delivered to the banks. The money represented by the lost certificates was paid by the banks to Majeuski, who turned it over to the defendant. The defendant, accompanied by Majeuski, took the money to another bank and deposited it in the defendant's name. Majeuski testified that, at the defendant's direction, he remained outside of the latter bank when the deposit was made and supposed that the defendant was depositing the money to his (Majeuski's) credit. He further testified that he paid the defendant $5 for signing the bonds, and that the defendant told him that he (the defendant) would return the money in two or three months. On December 19th the two men went to the office of an attorney, Robert Welch, for the purpose of having some writing drawn up showing the terms upon which the defendant was to hold the money. Majeuski, who claimed to have little understanding of English, testified through an interpreter. He claimed that the attorney first prepared one paper, which was destroyed, and then prepared another in duplicate, which was executed by Majeuski and the defendant; one of the duplicates being delivered to each of them. The latter paper was introduced in evidence and reads as follows: 'Seattle, Washington, December 19, 1910. Whereas John Majeuski has lost one certificate of deposit for the sum of two hundred dollars on the First National Bank of Seattle and a certificate for the sum of one hundred dollars on the Seattle National Bank of Seattle, and whereas Adam Jakubowski has this day given to the said banks his bond for the payment of the said sums of money: Now therefore the said Adam Jakubowski is to have and to hold the said sum of money, to wit, three hundred dollars, until such a time when the said banks release the said Adam Jakubowski on said bonds and when said bonds are so released then the said money, to wit, the sum of three hundred dollars, is to be delivered over and unto the said John Majeuski. Jan Majeuski. Adam Jakubowski. Witness: Robert Welch.'

In January, 1911, Majeuski asked the defendant for some of the money, and the defendant refused to give it to him, threatening violence if he persisted in demanding it. On January 25, 1911, Majeuski brought a civil action against the defendant, demanding the $300 and costs. The complaint alleged fraud on the part of the defendant and, in addition to the money demand, asked for a cancellation of the above agreement. In this civil action an amended complaint was filed on September 30, 1911, alleging that the bonds given to the banks had been canceled, and again asked for judgment for the $300 and costs. At this time one of the bonds had not been canceled and it was admitted on the present trial that one of the bonds was not canceled until the day before the trial of the civil action. The attorney for Majeuski in the civil action testified that this was through an oversight, due to the fact that two bonds were given to one bank and the third to another, and that he, supposing that there were only two bonds, overlooked the fact that one of the two bonds given to one of the banks was not released, but that on the release of the one bond it was the intention to release the defendant on both the bonds and on all liability to the bank. The civil action was tried in May, 1912, and resulted in a verdict and judgment for the plaintiff for $288, being the $300 less the costs, which were awarded to the defendant because one of the bonds had not been released when the action was instituted. The attorney for Majeuski in the civil action testified that the defendant at first absolutely refused to pay this judgment, stating that he would never pay it; that afterwards, when execution was issued, he offered to pay the judgment in installments of $50 each at intervals of 60 days, which arrangement the attorney refused to consider, and that no part of the judgment has been paid. Shortly after this the information in the present case was filed.

The evidence on behalf of the defendant was directed to the support of his contention that he received nothing for going on the bonds with the bank, but that he agreed to go on these bonds in consideration that he receive the money as a loan for a period of six years at 6 per cent. interest; that being the period for which he would be liable on the bonds. The defendant testified that he met the prosecuting witness in a certain saloon; that the prosecuting witness informed him of his predicament and requested the defendant to go upon his bonds in order to secure the money from the banks. As to what was verbally agreed to, he testified: 'I says I am going to see a lawyer and fix a paper. Of course I don't want to sign your bond for $600 at the bank if I have got no security. I says, 'I will tell you the bank will never release my bond for six years; you hear that?' He says, 'Yes.' I says, 'If I sign your surety bond they will give it to you, but I am the security.' He says, 'You give me that money just the same as the bank. If the bank after six years releases you, you pay my money back, and at any time if I want some $5 or $10, will you give it to me?' I says, 'Yes, I will do that.' I says, 'I will tell you, Majeuski, if I take that money for six years I will use it and pay you 6 per cent. interest.' He says, 'All right, you give me that; it is better than for the bank because the bank will never pay me that money.' I says, 'All right, I will do that.' And I went with him to the bank and to the lawyer and fixed that agreement.' He testified that on going to the attorney's office he first saw the attorney's stenographer and asked him to make a promissory note; that shortly afterward Mr. Welch, the attorney, came in and made out a promissory note for six years, but afterward explained that, if the defendant signed the promissory note and Majeuski should transfer it to some third party, the defendant would be subject to a double liability by reason of his note and his bonds with the bank; that the note was then torn up and the attorney drew up the foregoing agreement, which was executed by the prosecuting witness and the defendant in duplicate, one of the agreements being delivered to each. He further testified that Majeuski was present when the defendant deposited the money in the bank in his own name, and that the agreement was drawn up and signed in the attorney's office before the bonds were signed and the money secured from the banks. In this he is contradicted both by the testimony of the prosecuting witness and by the dates of the papers themselves. He also testified that Majeuski paid him nothing for signing the bonds. He admitted that he has paid no part of the money, stating that he is unable to do so, but that he has made many unavailing efforts, which he related in detail, to secure a loan with which to pay the money.

One Kalinowski testified that in December, 1910, in a conversation in a saloon, he heard the prosecuting witness tell the defendant he could use the money for six years until the banks released the bonds; the defendant to pay 6 per cent. a year for its use. As to what occurred in the attorney's office, the stenographer testified that some time in December, 1910, Majeuski and the defendant came into Mr. Welch's office; that Majeuski conversed in English, which he could speak, and seemed to understand very well; that the defendant told the witness that Majeuski had agreed to let him have the money for five or six years, and that Majeuski explained that he was willing to do so because the defendant had gone on his bonds; that Mr. Welch came in and explained to the defendant the danger of a double liability in case he gave a note while the bonds were still in the hands of the bank, and that the agreement above mentioned was then drawn up in duplicate.

Robert Welch, the attorney, testified that, when he came to his office one morning, Majeuski and the defendant were there with the stenographer; that he took them into his private room where Majeuski...