State v. Klinkenberg

• Decision Date: 29 November 1913
• Citation: 76 Wash. 466,136 P. 692
• Parties: STATE v. KLINKENBERG.
• Court: Washington Supreme Court

136 P. 692

76 Wash. 466

STATE v. KLINKENBERG.

Supreme Court of Washington

November 29, 1913

Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

John M Klinkenberg was convicted of obtaining a conveyance of land by false and fraudulent representations, and he appeals. Reversed, with directions to dismiss.

Marquis & Shields, of Stevenson, and H. F. Norris and T. W. Hammond, both of Tacoma, for appellant.

Lorenzo Dow and W. D. Askren, both of Tacoma, for the State.

PARKER J.

The defendant, John M. Klinkenberg, was charged by information filed in the superior court for Pierce county with having, by false and fraudulent representations, obtained from Michael Meier and wife a conveyance and transfer of certain land owned by them situated in Pierce county.

Demurrer was interposed on behalf of the defendant upon the ground among others, 'that said information does not set forth any crime under the laws of the state of Washington.' The demurrer was by the trial court overruled, and a trial followed, resulting in verdict and judgment of conviction against the defendant, from which he has appealed to this court. The only question we find it necessary to notice, is whether land is such property as may become the subject of the offense sought to be charged against the appellant.

The prosecuting attorney proceeds upon the theory that appellant has been properly charged with and convicted of the crime of larceny as defined by section 2601, Rem. & Bal. Code, reading, so far as we need here notice its provisions, as follows: 'Every person who, with intent to deprive or defraud the owner thereof (1) shall take, lead or drive away the property of another; or (2) shall obtain from the owner or another the possession of or title to any property by color or aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order, check or draft was not authorized or entitled to make or draw the same, or by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune-telling, * * * steals such property and shall be guilty of larceny.'

The crimes of false pretenses and larceny have always been considered as largely analogous and having reference to the wrongful obtaining of personal property only of another. This analogy obtains even where the crimes are defined by statute, using the word 'property' in a seemingly very broad sense, if the word be viewed apart from the history of the law of those crimes. The statute above quoted declares that, where a person obtains the property of another by any unlawful means therein specified, he thereby 'steals such property and shall be guilty of larceny.' This suggests the thought that the word 'property,' as there used in defining the offense, means such property as has always been understood to be the subject of larceny and false pretenses, the latter of which we have noticed is analogous to larceny. The unqualified use of the word 'property' in describing what may be stolen or obtained by false pretenses from another, so as to incur criminal liability, viewed in the light of the history of those crimes both common and statutory, it seems to us, falls short of conveying the idea that land may be so obtained and criminal liability flow therefrom. Clearly, under the common law, land was not subject to larceny. 25 Cyc. pp. 12, 15. Nor has there come to our notice the holding of any court to the effect that the crime of false pretenses, which is apparently little else than a statutory expansion of the crime of larceny, renders criminally liable one who, by false pretenses, procures a conveyance of land from its owner.

In People v. Cummings, 114 Cal. 437, 439, 46 P. 284 substantially the same question as here presented was learnedly discussed by Justice Van Fleet, speaking for the court as follows: 'In their origin both the common law and statutory offenses were undoubtedly designed and aimed solely at protecting personal property and in aid of the laws against larceny and theft. Indeed, they appear to have sprung into being largely by reason of certain defects in the application of the laws against larceny. Among the reasons stated in the statute (33 Henry VIII) for enlarging the offense of cheating are that 'many light and evil-disposed persons, not minding to get their living by truth, etc., but compassing and devising daily how they may unlawfully obtain and get into their hands and possession...