State v. Lindsey

Decision Date20 August 1936
Docket Number26004.
Citation61 P.2d 293,187 Wash. 364
PartiesSTATE v. LINDSEY et al.
CourtWashington Supreme Court

Appeal from Superior Court, Spokane County; Chas. H. Leary, Judge.

Elbert B. Lindsey and E. R. Lindsey were convicted of grand larceny and they appeal.

Affirmed.

Ralph E. Foley and C. C. Quackenbush, both of Spokane, for appellants.

E. R Lindsey, of Spokane, for the State.

HOLCOMB Justice.

This appeal is from a judgment and sentence upon a verdict of conviction.

On September 4, 1935, an information was filed in the office of the clerk of the superior court of Spokane county, charging defendants with the crime of grand larceny, as follows:

'That the said defendants, Elbert B. Lindsey, and E. R. Lindsey in the County of Spokane, State of Washington, on or about the 15th day of April, 1935, then and there being, did then and there wilfully, unlawfully, feloniously and fraudulently, by color and aid of a check in words and figures as follows, to-wit:
'Spokane, Wash. Apl 15 1935 No. 2
Spokane and Eastern Trust Company
Pay to the order of Elbert B. Lindsey $40.00
Forty 00/..... Dollars
E. R. Lindsey'

and endorsed on the back thereof: 'Elbert B. Lindsey, 1104 1/2 W. 2nd Ave Co. Service National Guard'

obtain from Peter M. Jacoy Forty dollars ($40.00) in money and currency of the United States of America, of the value of Forty Dollars, and the property of the said Peter M. Jacoy, with intent to deprive and defraud the said Peter M. Jacoy, the owner thereof, the said defendants then and there knowing that the maker and drawer of said check was not authorized or entitled to make or draw the same.'

This information was designated as the '(2nd) Substituted Information,' the first having been filed on May 3, 1935, but substituted by another on August 17, 1935, which in turn was again substituted by the one first above mentioned. Demurrers, motions to set aside the information, motions for separate trials and for bill of particulars were all either overruled or denied. Each defendant entered pleas of 'not guilty' and 'former jeopardy by reason of a valid information in the same cause having been heretofore dismissed under such circumstances as to constitute a bar of another prosecution for the same offense.'

The record discloses that at the outset of the trial each defendant was represented by counsel, but that defendant Elbert B. Lindsey objected to proceeding with the trial because he was unable to employ counsel and as counsel had just then been appointed for him and he had had no time to consult with his counsel or prepare his case, which objection was overruled. E. R. Lindsey objected to the introduction of any evidence on the ground that the information does not state a cause of action as to him. As the conclusion of the state's case motions to dismiss were denied, and at the conclusion of all the evidence, motions to dismiss or in the alternative to direct the jury to return verdicts of 'not guilty' were also denied. Upon the return of the verdict of 'guilty,' each defendant on September 16, 1935, filed motions in arrest of judgment and for a new trial. On November 1, the court entered its judgment, sentence and commitment upon the verdict and four days later on November 5, each defendant gave notice of appeal. Thereafter a motion was made by one of the defendants to reopen the case on the motion for a new trial and in arrest of judgment or to set aside the verdict, judgment, and sentence.

The court journal, under date of November 18, has the notation:

'Oral order of November 1st, 1935, denying motion for new trial. Order signed by court, November 18th, 1935. * * *

'Order denying motion to re-open and motion for new trial denied. Motion to arrest judgment denied, or to set aside verdict judgment and sentence as to him being void denied.'

On the same day the court entered two written orders, one denying motion to reopen the case on motion for new trial and arrest of judgment on the ground that the court had no jurisdiction, the defendants having given notice of appeal, and the other on the motion for a new trial recites that the motion and argument were heard on November 1, 1935, the court having made oral decision that such motion was denied and judgment entered, it was ordered 'that said motion for new trial be, and the same is hereby denied and entered, as of November 1, 1935.'

Many errors are assigned, but we feel that all except those which we will hereinafter discuss are without merit and it would serve no useful purpose to extend this opinion to discuss them all.

The first assignment is directed to the overruling of objections to the admission in evidence of statements attributed to one of the defendants in the presence of police officers while, as it is claimed, such defendant was held in custody and the statements were made under duress, all in violation of the Constitutions of the United States and of this state.

From the evidence it cannot be said that as a matter of law there was duress, but in any event Rem.Rev.Stat. § 2151, provides: 'The confession of a defendant made under inducement, with all the circumstances, may be given as evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony.' Certainly, the record discloses much corroborating evidence to sustain the admissibility of the written admissions.

Appellants argue at length upon the court's refusal to dismiss or direct a verdict of acquittal because of the discrepancy between the number of the check stated in the information and the number on the check introduced in evidence upon which the convictions were obtained. This check was designated in the information as No. 2, while actually the number upon it was 21. This does not amount to a variance at law, inasmuch as it is not of a material nature and neither one of the defendants was prejudiced nor the jury misled thereby. State v. Fairfield, 140 Wash. 349, 248 P. 810.

The contentions that the evidence fails to show intent to defraud or knowledge that there were no funds in the bank to meet the check is sufficiently answered by saying that there was evidence directly upon the question of knowledge and the intent is for the jury to determine from all of the facts and circumstances.

The assignment as to the evidence of other crimes is governed by our decisions in State v. Johnson, 141 Wash. 324, 251 P. 589, and State v. Martin, 176 Wash. 637, 30 P.2d 660.

The contention that the information was subject to demurrer or appellants were entitled to a bill of particulars is answered...

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11 cases
  • State v. Woods
    • United States
    • United States State Supreme Court of Washington
    • 24 Mayo 2001
    ...bring appellant to trial upon the first information, an appropriate remedy would doubtless be available to him."); State v. Lindsey, 187 Wash. 364, 369, 61 P.2d 293 (1936), rev'd on other grounds, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937) (quoting Navone ); State v. Oestreich, 83 Was......
  • State v. Foret
    • United States
    • Supreme Court of Louisiana
    • 27 Enero 2016
    ...2446.27 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937).28 Id. at 399, 57 S.Ct. 797.29 Id. at 398–99, 57 S.Ct. 797.30 State v. Lindsey, 187 Wash. 364, 61 P.2d 293, 294 (1936), rev'd, 301 U.S. at 398, 57 S.Ct. 797.31 See Lindsey, 301 U.S. at 398, 57 S.Ct. 797.32 Id. at 401, 57 S.Ct. 797.33 ......
  • State v. Madsen
    • United States
    • Court of Appeals of Washington
    • 14 Diciembre 2009
    ...law in force when the larceny was committed, the court could pronounce a maximum sentence of not more than 15 years. State v. Lindsey, 187 Wash. 364, 371, 61 P.2d 293 (1937). The United States Supreme Court disagreed with this analysis and ruled that sentencing the defendants under the new ......
  • State v. Randle
    • United States
    • Court of Appeals of Washington
    • 18 Marzo 1987
    ...the time of the crime. Similarly, in Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937) (reversing 187 Wash. 364, 61 P.2d 293), the United States Supreme Court held void, as ex post facto, application of a statute making mandatory a sentence that previously ha......
  • Request a trial to view additional results
1 books & journal articles
  • Determining the retroactive effect of laws altering the consequences of criminal convictions.
    • United States
    • Fordham Urban Law Journal Vol. 30 No. 5, July 2003
    • 1 Julio 2003
    ...(101.) Id. at 431. (102.) Id. at 431-32. (103.) 301 U.S. 397 (1937). (104.) Id. at 399. (105.) Id. at 398-99. (106.) State v. Lindsey, 61 P.2d 293, 294 (Wash. 1936), rev'd, 301 U.S. at 398. (107.) See Lindsey, 301 U.S. at 398. (108.) Id. at 401. (109.) See, e.g., id. at 402 (noting that the......

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