State v. Johnston
| Decision Date | 02 November 1940 |
| Docket Number | 28042. |
| Citation | 106 P.2d 1067,6 Wn.2d 141 |
| Parties | STATE v. JOHNSTON. |
| Court | Washington Supreme Court |
W. C Johnston was charged with grand larceny by color or aid of fraudulent and false representations. From an order dismissing the prosecution, the State appeals.
Order reversed and cause remanded, with direction to grant new trial.
Appeal from Superior Court, Pierce County; F. G. Remann, judge.
Thor C Tollefson, Pros. Atty., William N. Goodwin, Jr., and Hugo Metzler, Jr., all of Tacoma, for appellant.
Robert B. Abel, of Tacoma. for respondent.
The defendant, W. C. Johnston, was charged, by information which contained one count, with the crime of grand larceny, by color or aid of fraudulent and false representations, to which he pleaded not guilty. Subsequently, an amended information was filed, which contained four counts, and, later, a bill of particulars was filed. The defendant again pleaded not guilty. The cause came on for trial, and, at the conclusion of the state's evidence the defendant moved for dismissal, for the reason that the evidence was not sufficient to take the question of the defendant's guilt to the jury. From the order of dismissal entered, the state appealed.
The Commercial Autoparts, Inc., was a corporation engaged in the business of selling automobiles in the city of Tacoma. The respondent was the president and manager of the corporation. In selling the automobiles, in many cases, if not in all initial payment was made and installment payments were provided for. In some cases, and probably in most, the autoparts company took a chattel mortgage; in others, a conditional bill of sale. Over a period of two or three years, the respondent sold and assigned to the Lincoln branch of the Puget Sound National Bank, which will be referred to as the bank, many of the mortgages and conditional bills of sale. Whether these were all sales or whether the bank simply extended credit is not material. During all the time that these transactions were being had, C. W. Greening was the manager of the bank, and the only one therein that could either purchase or take chattel mortgages or conditional bills of sales as security for credit.
Subsequently, the autoparts company became insolvent, and a receiver was appointed to take charge of its assets. After the receiver's appointment, facts developed which gave rise to the present prosecution.
Count one of the information is based on a chattel mortgage in which one E. E. Sweet was named as mortgagor. The evidence in support of this count was such that the jury had a right to find that Sweet was a fictitious person.
The second count is based upon a chattel mortgage in which H. H. Thompson was named as mortgagor. The evidence in support of this count was, likewise, such that the jury had a right to find that Thompson was a fictitious person.
The third count is based upon a chattel mortgage in which K. Thompson, who was a bookkeeper for the autoparts company, was named as mortgagor. The evidence in support of this count showed that the car was not delivered and that the transaction was simply one devised by the respondent for the purpose of raising money.
The fourth count is based upon a conditional bill of sale signed by Clifford H. Raver as purchaser, and purports to cover a 1937 Chevrolet sedan. Raver testified that he had signed this conditional bill of sale in blank at one time, and that he had purchased a Chevrolet automobile from the autoparts company, but that he had not purchased a 1937 model.
The three chattel mortgages referred to and the conditional bill of sale were assigned to the bank. The respondent, a notary public, took the acknowledgment and verification of all three of the mortgages.
Rem.Rev.Stat. § 2601, provides:
'Every person who, with intent to deprive or defraud the owner thereof----
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'(2) Shall obtain from the owner or another the possession of or title to any property, real or personal, * * * by color or aid of any fraudulent or false representation, * * *
'Steals such property and shall be guilty of larceny.'
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State v. Phillips, 32138
...sedan, actually charges him with making an implied warranty that the defendant had good legal title to the automobile. State v. Johnston, 6 Wash.2d 141, 106 P.2d 1067. This language contained in the information is not found in the G.M.A.C. assignment. The particular language of the informat......
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People v. Cheff
...(Thomas) is criminally liable * * *.' Thomas, supra, 123 Wash. at 303, 212 P. at 254, 33 A.L.R. at 783--784. In State v. Johnston, 6 Wash.2d 141, 106 P.2d 1067 (1940), the defendant was charged with four counts of grand larceny by color or aid of fraudulent and false representations. He was......