State v. Lewis

Decision Date18 February 1903
Citation31 Wash. 75,71 P. 778
PartiesSTATE v. LEWIS.*
CourtWashington Supreme Court

Appeal from Superior Court, Spokane County; Frank H. Rudkin, Judge.

W. A Lewis was convicted of crime, and appeals. Affirmed.

T. C Griffitts and W. S. Lewis, for appellant.

Horace Kimball and Miles Poindexter, for respondent.

HADLEY J.

Appellant was, by information, charged with the crime of larceny. The substance of the charge is that on the 12th day of June 1900, the appellant was the agent and attorney of one Mary Lambert, and was, by virtue of being such agent and attorney, intrusted by the clerk of the superior court of Spokane county with the sum of $225 of bank notes, money, and currency of the United States, of the value of $225, the same being the property of said Mary Lambert; that by virtue of being such agent and attorney, appellant had authority to receive said money and did so receive it in the name and on account of the said Mary Lambert, and that he thereafter unlawfully converted the same to his own use. Appellant entered the pleas of not guilty and of former acquittal. A trial was had before a jury, resulting in a verdict of guilty. Motions for new trial and in arrest of judgment were denied, and judgment was entered upon the verdict of the jury, whereby appellant was sentenced to serve a term of eight years and six months' imprisonment in the state penitentiary. From said judgment this appeal is prosecuted.

It is assigned as error that the court denied appellant's challenge to the juror Salisbury on the ground that he was at the time a judicial officer of the state of Washington, namely, a justice of the peace. The examination shows that the juror is by occupation a farmer, but that he was then filling the office of justice of the peace in his precinct. Appellant had passed him for cause, and after examining another, the point was urged against Mr. Salisbury that as a justice of the peace he was subject to the occasional advice of the prosecuting attorney. It was not urged at the time that the mere fact that he was a justice of the peace would disqualify him, but it was suggested that it was a privilege which he could claim. It is now urged here that, under section 4736, 2 Ballinger's Ann. Codes & St., the juror was actually disqualified on the ground that he was a judicial officer. Even if appellant's contention as to the force of the statute should prevail, still, since the specific point was not urged below, we think it was waived, and the section cited expressly provides that the verdict of the jury shall not be affected unless the juror was challenged for the specific cause before the finding of the verdict. But, in any event, even if the point had been timely raised by specific challenge, we think the statute will not bear the construction urged by appellant. The statute plainly makes it a mere privilege of the persons therein specified to claim exemption from jury service. The essential provision is that they 'shall not be compelled to serve as jurors.' The mere fact that the section directs county commissioners to omit the names of such persons from jury lists prepared by them does not work an actual disqualification of the persons coming within the classifications named, if they have happened to be included in the list, and do not claim the privilege of exemption. The further ground of challenge that the prosecuting attorney is the legal adviser of county officers, including justices of the peace, and that the juror may also have had cases before him as justice of the peace in which the prosecuting attorney happened to be engaged for the state, is too remote in itself to disqualify the juror. Unless the examination disclosed such special and peculiar personal relations as would seem to make it imprudent for him to act, it should not be held as ground of challenge for cause. No such relations are shown in this record, and we think the challenge for cause was in all particulars properly denied.

It is assigned that the court erred in denying appellant's motion to require the state to furnish a bill of particulars, and also to elect whether it relied upon the fiduciary relation of attorney and client, or that of principal and agent, since it was alleged in the information that appellant was both the attorney and agent of the said Mary Lambert. The motion for bill of particulars was denied, and, in response to appellant's motion, the state announced that it elected to rely upon the fiduciary relation of principal and agent, and not that of attorney and client. We think the election which was made by the state fully met the requirements of appellant's motion to require an election. And as to the motion for a bill of particulars, we think the information sufficiently advised appellant of the material facts, within the holding of this court in State v. Turner, 10 Wash. 94, 38 P. 864. The essential elements of the information, as summarized in the above case, are that the accused shall be shown to be a person or an agent, and, if an agent, he shall have received the property of his principal by virtue of the agency, and that he fraudulently and feloniously converted it to his own use. All this appears in the information in the case at bar. The specific property received and converted is described, and the time and manner of its receipt are also described. It does not appear that more specific information could have been furnished by a bill of particulars, and it was, therefore, not error to deny it.

It is assigned that the court erred in submitting this cause to the jury, inasmuch as it appeared from the evidence that a civil action is pending between the appellant and the prosecuting witness, involving a dispute over the appellant's right to possession of the same property the alleged conversion of which constitutes the basis of this prosecution. It is contended by appellant that a determination of the legal rights of the respective parties in the civil suit concerning the funds in controversy must be had before the appellant can be prosecuted for the embezzlement thereof. Appellant's position is that there is no provision in the law of criminal procedure which warrants a plea in abatement of a criminal action because of the pendency of a prior civil action involving the same subject-matter, and that for the above reason appellant was relegated to proof of the fact under the general issue. Evidence was accordingly introduced with the view of establishing the fact that a bona fide controversy exists in relation to these funds, which is now in process of litigation, and which is yet undetermined. The evidence bearing upon the point urged here by appellant shows substantially that the prosecuting witness, Mary Lambert some years ago recovered a judgment in the superior court of Spokane county against Carrie N. Gillette. The attorneys who procured the judgment not having succeeded in collecting the same, she employed appellant as an attorney for an agreed fee of $10 to examine the records, and investigate the probability of collecting the debt. The $10 fee was paid, and, after investigation, a written agreement was entered into between Mrs. Lambert and appellant whereby appellant undertook the enforcement of the judgment for an agreed fee of one-half of all that should be recovered thereon, she agreeing to pay the necessary costs attending the enforcement of the judgment. In pursuance of said agreement execution was issued, and real estate was sold thereunder in satisfaction of the judgment. The interest of appellant was transferred to W. S. Lewis, then a law student in appellant's office, and later his law partner in a firm known as 'Lewis & Lewis.' The sheriff's conveyance was made to Mary Lambert and W. S. Lewis jointly. Later it was discovered that pending the enforcement of the judgment the judgment debtor had conveyed a portion of the real estate; that an attempted satisfaction of the judgment had been made, and that the purchaser had commenced the erection of valuable improvements upon a portion of the land so sold. Thereafter an action was instituted by the firm of Lewis & Lewis to set aside the purported release, to quiet title, and for possession of the lot under the sheriff's deed. Appellant contends that a new agreement was then made, by which Mrs. Lambert was to pay one-half and W. S. Lewis the other half of the reasonable attorney's fees and necessary costs and disbursements of this new litigation, and that the former written agreement related only to the issuance of execution and the sale of the property under the judgment previously obtained by other attorneys as aforesaid. The prosecuting witness contends that it was understood that the written agreement comprehended all the necessary legal services to effect a final recovery under the judgment, and that the suit to quiet title was a part of that service. The evidence shows that Mrs. Lambert did pay one-half of at least a portion of the costs and disbursements, but appellant contends that she did not pay as much as was paid out for her by Lewis & Lewis by $64.15. The litigation included the costs of an appeal to this court. During this time Mrs. Lambert and one Mrs. Muerling were conducting a lodging house as copartners. Dissension arose between the partners, and Mrs. Muerling commenced an action to dissolve the partnership, and for the appointment of a receiver of the firm business and property. The firm of Lewis & Lewis were employed by Mrs. Lambert to defend that action. During the progress of that litigation, on stipulation of the parties, the partnership property was sold for $950, and the proceeds deposited in the office of the clerk of the superior court to await final adjudication of the case. On such final adjudication Mrs. Lambert...

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19 cases
  • State v. Bickford
    • United States
    • United States State Supreme Court of North Dakota
    • December 2, 1913
    ...effect are 7 Enc. Pl. & Pr. 454; 15 Cyc. 526; United States v. Fish, 24 F. 585; State v. Ring, 29 Minn. 78, 11 N.W. 233; State v. Lewis, 31 Wash. 75, 71 P. 778, 782, 783; and see also Weimer v. People, 186 Ill. 503, 58 378, 379; Bolln v. State, 51 Neb. 581, 71 N.W. 444; Brown v. State, 18 O......
  • State v. Bickford
    • United States
    • United States State Supreme Court of North Dakota
    • May 22, 1914
    ...are 7 Ency. Pl. & Pr. 454; 15 Cyc. 526; U. S. v. Fish (C. C.) 24 Fed. 585;State v. Ring, 29 Minn. 78, 11 N. W. 233;State v. Lewis, 31 Wash. 75, 71 Pac. 779, 782, 783. And see, also, Weimer v. People, 186 Ill. 503, 58 N. E. 378, 379;Bolin v. State, 51 Neb. 581, 71 N. W. 444;Brown v. State, 1......
  • State v. Audia, 15212
    • United States
    • Supreme Court of West Virginia
    • March 11, 1983
    ...(Mo.1965); State v. Radi, 176 Mont. 451, 578 P.2d 1169 (Mont.1978); State v. Glover, 21 S.D. 465, 113 N.W. 625 (1907); State v. Lewis, 31 Wash. 75, 71 P. 778 (1903); see also Annot., 72 A.L.R.2d 673 (1960); but cf. Klinck v. State, 203 Ind. 647, 179 N.E. 549 (1932) [indicating challenge mig......
  • State v. Hatley, 33919.
    • United States
    • Supreme Court of West Virginia
    • March 13, 2009
    ...(Mo. 1965); State v. Radi, 176 Mont. 451, 578 P.2d 1169 (Mont. 1978); State v. Glover, 21 S.D. 465, 113 N.W. 625 (1907); State v. Lewis, 31 Wash. 75, 71 P. 778 (1903); see also Annot., 72 A.L.R.2d 673 (1960); but cf. Klinck v. State, 203 Ind. 647, 179 N.E. 549 (1932) [indicating challenge m......
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