State v. Linden

• Decision Date: 30 December 1932
• Docket Number: 24065.
• Citation: 171 Wash. 92,17 P.2d 635
• Parties: STATE v. LINDEN et al.
• Court: Washington Supreme Court

17 P.2d 635

171 Wash. 92

STATE v. LINDEN et al.

No. 24065.

Supreme Court of Washington

December 30, 1932

Department 2.

Appeal from Superior Court, King County; William J. Steinert, Judge.

Adolph F. Linden and E. W. Campbell were convicted of grand larceny and they appeal.

Affirmed.

E. D Phelan, A. E. Cross, and Poe, Falknor, Falknor & Emory, all of Seattle, for appellants.

Robert M. Burgunder, of Seattle, for the State.

MAIN J.

Adolph F. Linden, E. W. Campbell, and Carl G. Nelson were, by indictment which contained three counts, charged with the crime of grand larceny. To the indictment, a demurrer was interposed, and overruled. The trial resulted in a verdict of guilty as to Linden and Campbell, and an acquittal as to Nelson. The convicted defendants each moved in arrest of judgment and for a new trial, all of which motions were overruled. Separate judgments were entered against the convicted defendants and sentence imposed, from which they appeal.

The appellants appear by separate briefs and different counsel. Many questions are presented, and the facts which are necessary to an understanding of a particular question will be stated in connection with the consideration of the question. It is only necessary to state a few of the preliminary facts.

The Puget Sound Savings & Loan Association was a corporation engaged in the ordinary business of such an association, which was the receiving of deposits and the making of loans. Linden was the president of the association Campbell the vice president, and Nelson secretary. As one entered the banking room from the front or street entrance, to the right was a railing, such as ordinarily appears in banking houses. Back of this were the desks of the three officers mentioned; the first being that of Linden, the second Campbell, and the third Nelson. Next to the desk of Nelson the tellers' cages began, and the first one was occupied by one M. N. Ostey, as teller.

In the first count in the indictment, the officers named were charged with having converted trust funds which came into their possession between May 14, 1928, and June 3, 1928, to the use of the Northwest Radio Service Company, a corporation, and the American Broadcasting Company, 'and to the use of other persons than the true owners thereof,' with intent to deprive and defraud the Puget Sound Savings & Loan Association. The second and third counts are to the same effect, covering different periods of time, and each contains a like clause to that appearing in the first count, which is quoted. There are many questions presented, and, in considering them, we shall follow the order adopted in the appellant Campbell's brief, and, after these are disposed of, consider any additional question that may appear in the brief of the appellant Linden.

In support of the demurrer, the appellants contend that the indictment is bad because it did not name specifically the other persons referred to in the quoted clause, and this presents the first question.

The indictment is based upon subdivision 3 of section 2601 of Remington's Compiled Statutes, which provides that every person who, with intent to deprive or defraud to owner thereof, having any property in his possession, custody, or control, 'as bailee, factor, pledgee, servant, attorney, agent, employee, trustee, executor, administrator, guardian or officer of any person, estate, association or corporation, * * * shall secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; * * * steals such property and shall be guilty of larceny.' The import of the indictment is that the appellants were guilty of a fraudulent breach of trust in respect of money of their principal that had come into their possession by virtue of a fiduciary relation, and had wrongfully and fraudulently assumed dominion over it, and had appropriated the same to the use of the radio company or the American Broadcasting Company, and to the use of other persons than the true owner. Under the statute and under the indictment based thereon, it was immaterial as to whether the appellants were the recipients of the benefits of the wrongful appropriation, or whether a third person reaped the benefits thereof; and for this reason the indictment was not bad, by reason of the fact that it used the expression 'and to the use of other persons than the true owner.'

In the case of Lacey v. State, 13 Ala. App. 212, 68 So. 706, 709, where the question presented was very much like that we are here considering, it was said: 'It is urged as an objection against some of the counts charging embezzlement that they aver that the defendant 'embezzled or fraudulently converted to his own use or the use of another' the property of his principal, without averring the name of the third person designated as 'another.' The clear import of this averment is that the defendant was guilty of a fraudulent breach of the trust in respect of the property of his principal that had come into his possession by virtue of the fiduciary relation, and a wrongful and fraudulent assumption of dominion over it in total disregard and denial of the rights of the true owner ( Wall v. State, 2 Ala. App. 164, 56 So. 57; Boutwell v. Parker, 124 Ala. 342, 27 So. 309; 15 Cyc. 521g), and it is wholly unimportant as to whether the defendant was the recipient of the benefits of the crime, or whether a third person reaped the benefits thereof. For this reason, it was not necessary for the indictment to aver the name of such third person.'

The case of State v. Carey, 4 Wash. 424, 30 P. 729, is based upon entirely different facts, and that case would not justify a holding in this case that the indictment was not good. In addition to this, the quoted language may be regarded as surplusage, and the indictment would still be sufficient to charge the crime, because it specifically says that the property was converted to the use of the appellants and each of them unlawfully, fraudulently, and feloniously, and to the use of the Northwest Radio Service Company and the American Broadcasting Company. State v. Hemhelter, 115 Wash. 208, 196 P. 581; State v. Fitzpatrick, 141 Wash. 638, 251 P. 875. The demurrer to the indictment was properly overruled.

It is next contended that the court erred in refusing to require the state to furnish to the appellants a list of its witnesses. The appellant Campbell objected to going to trial until a list of witnesses had been furnished. Whether the furnishing of a list of the witnesses is necessary when the charge is by indictment depends upon whether it is required by statute. Section 1 of chapter 150 of the Laws of 1925, Ex. Sess., amended section 2042, Rem. Comp. Stat., and provided that, upon a true bill or indictment being presented to the court, 'the clerk of the court must, within one day after demand made, furnish the defendant, or his counsel, a copy thereof without charge, or permit the defendant's counsel, or the clerk of such counsel to take a copy.' There is no provision in that section with reference to the furnishing of a list of the witnesses.

Section 2 of the same chapter amends section 2050, Rem. Comp. Stat., and provides: 'All informations shall be filed in the court having jurisdiction of the offense specified therein by the prosecuting attorney of the proper county as informant; he shall subscribe his name thereto, and at the time the case is set for trial the prosecuting attorney shall file with the clerk a list of the witnesses which he intends to use at the trial and serve a copy of the same upon the defendant, and within five days thereafter the defendant shall file with the clerk and serve upon the prosecuting attorney a list of the witnesses which the defendant intends to use at the trial.'

It thus appears that the provision with reference to furnishing a list of the witnesses appears in the section which has to do with informations, and does not appear in the previous section which covers the matter of indictments. From this it would seem to follow that the Legislature did not intend to require a list of witnesses to be furnished when the charge was by indictment. The names of all the witnesses that appeared Before the grand jury were indorsed upon the indictment; but whether this was necessary it is not necessary here to determine, and we express no opinion thereon. Assuming, without deciding, that it is necessary to furnish a list of witnesses when the charge is by indictment, the fact that they were not furnished would not constitute reversible error in this case. No surprise was claimed by reason of the fact that the list of witnesses had not been furnished or a continuance asked for, and, consequently, there could be no reversible error in so far as this contention is concerned. State v. Harding, 108 Wash. 606, 185 P. 579.

It is next contended that the evidence is not sufficient to sustain a conviction as to the appellant Campbell. During the periods covered by the three counts in the indictment, Campbell was the executive officer in charge of the conducting of the affairs of the bank. Linden, during this time, while he was president of the association, was managing and conducting the affairs of the Northwest Radio Service Company, which owned and operated a radio station in the city of Seattle. During this time, Linden owned the stock of the radio company and spent his time in the offices of that company.

Count one of the indictment charges the appropriation of $23,604 between May 14, 1928, and June 3, 1928. Count two charges the appropriation of $85,085.41 between June 9, 1928, and August 18, 1928. Count three charges the appropriation of $18,000 between September 19, 1928, and December 7, 1928. When...