State v. Konop, 36552

• Decision Date: 08 August 1963
• Docket Number: No. 36552,36552
• Citation: 62 Wn.2d 715,384 P.2d 385
• Parties: The STATE of Washington, respondent, v. Robert P. KONOP, Appellant.
• Court: Washington Supreme Court

Page 715

62 Wn.2d 715

384 P.2d 385

The STATE of Washington, respondent, v. Robert P. KONOP, Appellant.

No. 36552.

Supreme Court of Washington, Department 1.

Aug. 8, 1963.

Fetty & Olwell, David H. Olwell, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., David L. Williams, Deputy Pros. Atty., Seattle, for respondent.

OTT, Chief Justice.

May 8, 1961, Robert P. Konop ordered 300 shares of the corporate stock of Thiokol Company from Merrill, Lynch, Pierce, Fenner & Smith, Inc., a brokerage firm in Seattle, and represented that he had sufficient funds to pay the purchase price of $13,323. May 11th, before the stock was delivered or paid for, Konop called the broker and ordered the stock sold at the then market price of $14,078.15.

May 12th, he opened a checking account with the Peoples National Bank by depositing a $25 check drawn on a California bank. May 17th, he placed another order for 300 shares of Thiokol stock, and assured the broker that payment therefor would be no problem. On the same date, he was advised that, although he had made a profit on the May 8th-11th transaction, he could not receive it without first paying the full purchase price for the stock.

He then wrote a check on the Peoples National Bank for $13,323, payable to the brokerage firm. May 18th, he was given a check for the profit on the May 8th-11th transaction, which he refused to accept because he had paid the purchase price by giving his check therefor the previous day. After assuring the operations manager that his check for $13,323 would be paid upon presentation because 'he was a reputable business man,' he was given a check from the brokerage firm for $14,078.15.

Konop then went to the National Bank of Commerce, where he presented the brokerage firm's check and asked that he be issued a cashier's check in lieu of it. Instead, the teller of the bank issued to him three manager's checks, payable to Robert Konop, in the sums of $13,300, $200 and $200, respectively, and gave him the balance in cash. Immediately thereafter, Konop went to the Peoples National Bank and contacted the same employee who had previously opened the checking account for him. He advised her that he had written a substantial check on his account, and offered to deposit the manager's check for $13,300 issued by the National Bank of Commerce, plus $100 in cash. The deposit was refused for the reason that his checking account had been closed when the $25 check he had written upon the California bank was returned marked 'account closed.'

May 22nd, Konop went to the Bank of California, presented the manager's check for $13,300, and received from that bank five drafts, two for $5,000 each, one for $2,000, one for $1,000, and one for $300, drawn upon a California branch of that bank.

In the interim between May 17th and 22nd, the check written by Konop to the brokerage firm was returned by the Peoples National Bank, marked 'account closed.' The firm, on several occasions thereafter, attempted to contact Konop concerning payment of the check, but without success.

September 26, 1961, Robert P. Konop was charged with the crime of grand larceny, as follows:

'He, the said ROBERT P. KONOP, in the County of King, State of Washington, on or about the 18th day of May, 1961, with intent to defraud and deprive the owner thereof, willfully, unlawfully and feloniously did obtain certain personal property in excess of $75.00, to-wit: a check made payable to Robert P. Konop, by the drawer, Merrill, Lynch, Pierce, Fenner and Smith, drawn on the Seattle-First National Bank, Seaboard Branch, the property of the Merrill, Lynch, Pierce, Fenner and Smith, by color and aid of a check or order for the payment of money, knowing that the maker or drawer of such order or check was not authorized to make or draw the same, and by means of false and fraudulent representations and pretenses, and by trick, device and bunco;

'Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Washington.'

At the trial before the court, sitting without a jury, the evidence on behalf of the state was essentially as above set out.

The defendant testified that, on May 15th, he was told by the brokerage firm's cashier that he had a credit balance of some $755 as a result of the May 8th-11th transaction. May 17th, he called at the office and was advised by the broker that, because of stock exchange regulations, he could not have the credit balance until he had paid for the stock. He testified that he told the broker he did not have the funds to pay for the stock, and was advised to write a check to the...