State v. James

• Decision Date: 29 June 1961
• Docket Number: No. 35418,35418
• Citation: State v. James, 363 P.2d 116, 58 Wn.2d 383 (Wash. 1961)
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Vincent Charles JAMES and Lois Tucker James, Appellants.

Page 383

58 Wn.2d 383

363 P.2d 116

STATE of Washington, Respondent, v.Vincent Charles JAMES and Lois Tucker James, Appellants.

No. 35418.

Supreme Court of Washington, Department 2.

June 29, 1961.

Rehearing Denied Sept. 13, 1961.

Marray B. Guterson, Seattle, for appellants.

Charles O. Carroll, Pros.Atty., James D. Burns, Deputy Pros.Atty., Seattle, for respondent.

DONWORTH, Judge.

Appellants, Vincent Charles James and his wife, Lois Tucker James, appeal from a conviction of five counts of grand larceny.¹The sum and substance of the charges as set forth in the information and amplified in the bill of particulars were that they obtained money through false and fraudulent representations of fact.²

The pertinent, undisputed facts of the case are essentially the following:

AppellantVincent James owned and operated the Seattle franchise of the Patricia Stevens Finishing School.His wife actively participated with him in supervising the operation of the school.The parties also operated a similar franchise of the same school in Portland, Oregon.The school was run for profit and offered such courses as speech, modeling, and self-improvement.A number of students at both the Seattle and Portland branches testified that they were induced to enroll in (and pay for) additional courses (other than those for which they originally signed up) by representations made by employees of the school to the effect that the school had an exclusive contract to supply models for the Oregon Centennial held in Portland in the summer of 1959.These representations were made in February, March and April of 1959.The complaining witnesses testified that they were assured of lucrative modeling employment at the Centennial upon completion of the additional courses.While the school had rented booth space at the Centennial, no contract to supply models ever existed.

It is to be noted that the representations complained of were not made by appellants, personally.As has been stated, the representations regarding the Centennial were made by certain employees of the school.

There is but one assignment of error raised by appellants, to wit, the failure of the trial court to sustain appellants' motion to dismiss for lack of sufficient proof of either (1) intent to defraud, or (2) authorization of the false statements.The entire question on appeal then is whether or not there was sufficient evidence presented to warrant the finding by the trier of fact ³ that appellants intended and authorized their employees to make the representations complained of.

The state questions the adequacy of this assignment as a challenge to the findings of fact entered by the trial court, citing State v. Mercy, 1960, 55 Wash.2d 530, 348 P.2d 978, which involved a conviction on three counts charging petit larceny.The information was based on the same statute(RCW 9.54.010(2)), and the defendant waived a jury trial.No error was assigned to the trial court's findings.This court held that under such circumstances the findings became the established facts of the case.

Assuming that the single assignment of error in this case is sufficient to challenge the trial court's findings of fact under Rule on Appeal 43 (RCW Vol. O.), there admittedly his been no compliance with the following portion of Rule on Appeal42(a)(7):

'* * * Whenever error is assigned to any finding or findings of fact, so much of the finding or findings made or refused as is claimed to be erroneous shall be set out verbatim in the brief and reference made thereto by number in the 'assignments of error."

Concerning this contention of respondent, appellants comment in their reply brief as follows:

'Secondly, and much more importantly, appellants' assignment of error * * * does meet the requirements, in spirit and in logic, of Rule * * * [42(a)(7)]andRule 43, Rules on Appeal.Why were these rules promulgated but to call for clarity and succinctness in brief preparation so that this Court and opposing parties would immediately comprehend the point or points in issue?In this case, there is only one point in issue, namely, under the recognized requirements of proof in criminal cases, does the evidence support the result.This is the substance of our one and only assignment.Certainly we might have made seven other assignments by decrying the language of Findings of Fact VI, VII, VIII(E), IX(E), X(E), XI(E) and XII(E), but then still under Rule 42(1)(f)[Rule 42(a)(7)], Rules on Appeal, we would have argued our exact same one and only proposition under one heading.

'And, had we chosen the latter course, how much more likely would have been the opportunity for confusion, for respondent to misinterpret and to seek to meet a claim not even being made.No, we cannot believe that the form and language of our single assignment, so simple and direct, can now be construed as an irresponsible or abortive method of bring to this Court the very substantial point we urge.'

We think that appellants mistake the purpose of the above-quoted portion of Rule 42.The reason for requiring the challenged portion of the trial court's findings to be set out verbatim in the brief is to enable each judge to become informed as to precisely what is before the court.In order to determine whether a particular finding is or is not supported by substantial evidence, each judge must have this precise information before him.Without the challenged findings being set out in the appellant's brief, each judge would be compelled to search the transcript on file in the clerk's office to find out what factual disputes are involved in each particular case.The rule is a practical one designed to facilitate the disposition of cases by this court by eliminating such a cumbersome procedure.

In view of appellants' misunderstanding of the purpose of Rule 42(a)(7), and the fact that they have been sentenced to penal confinement for a substantial period, we have examined the statement of facts (667 pages) and exhibits and have considered the sufficiency of the evidence as to the two points mentioned in appellants' single assignment of error.

The evidence tending to link appellants to the crime is, to some extent, circumstantial.As this court said in State v. Gillingham, 1949, 33 Wash.2d 847, 854, 207 P.2d 737, 741:

'* * * in order to sustain a conviction on circumstantial evidence, the circumstances proved by the state must not only be consistent with each other and consistent with the hypothesis that the accused is guilty, but also must be inconsistent with any hypothesis or theory which would establish, or tend to establish, his innocence.'

See, alsoState v. Charley, 1955, 48 Wash.2d 126, 291 P.2d 673;State v. Taylor, 1955, 47 Wash.2d 213, 287 P.2d 298;andState v. Long, 1954, 44 Wash.2d 255, 266 P.2d 797.However, it has also been held with equal unanimity that the question of whether or not the circumstantial evidence tending to link a defendant with the crime excludes beyond a reasonable doubt every reasonable hypothesis other than the defendant's guilt, is a question for the trier of fact (in this casethe trial court).SeeState v. Walters, 1960, 351 P.2d 147;State v. Lewis, 1960, 55 Wash.2d 665, 349 P.2d 438;State v. Grenz, 1946, 26 Wash.2d 764, 175 P.2d 633, appeal dismissed332 U.S. 748, 68 S.Ct. 54, 92 L.Ed. 336;andState v. Dockers, 1939, 200 Wash. 45, 93 P.2d 355.

It is neither our function nor our purpose to catalogue all of the evidence upon which the trier of fact might have based its finding of guilt.However, summarized below is some of the principal evidence tending to link appellants with the crime charged.

1.Edward Piel, who was employed by Vincent James as an 'interviewer' and 'counselor' at the Portland branch, testified, in part as follows:

'Q.I see.Now what did he[Vincent James] say about the Oregon Centennial?A.He said that 'the girls we are accepting for modelling at this time would definitely be placed at the Centennial for a minimum of 25 to 50 dollars a day.'* * *

'Q.(By Mr. Burns)All right, did Mrs. Tucker ever come into the conversation?A.Yes, just once.

'Q.Where was that now, and when was it?A.Well, that was while we were in one of the interviewing rooms. talking over the Centennial; and Mrs. James said, came in and said 'That is definitely true; we do need girls.We are getting more calls now than we have qualified girls to fill.'

'Q.Now did Mr. James tell you to say anything to these girls, prospective students?A.I was told that if I found a girl who was interested, it would be all right to go ahead and say this.

'Q.Say what?A.That we would be able to place them at 25 to 50 dollars a day.

'Q.Where?A.At the Centennial.'

2.During cross-examination by the state, codefendant, Lois Tucker James, testified in part, as follows:

'Q.(By Mr. Burns)You [Lois Tucker James] said that you would look through the windows at the studio?A.Yes.

'Q.And also in the place, there was microphones somewhere in the place?A.In each counselling office there was a microphone which led to a monitor in an office adjacent to the telephone room.

'Q.I see.Is that so that someone--yourself or your husband--could go in there and listen to see what they were telling to the counsellees?A.That was the original purpose, Mr. Burns.

'Q.I see.Was these another purpose involved also?A.No, but when my husband and I were not in the Seattle school it was the manager's duty to do this.

'Q.And was that the same in Portland?You had the same kind of of a setup?A.We had a monitoring service, yes.

'Q.You would listen in on what they were telling the students?A. Yes--prospective students.

'Q.And was that so that you would know what was going on there in your company?A.Yes.'

3.Patricia Anne Herman, another onetime employee at the Portland branch, testified regarding the monitoring system as follows:

'Q.And was there any mention made, during this...