State v. Lynn

• Decision Date: 02 February 1916
• Docket Number: 12981.
• Citation: 154 P. 798,89 Wash. 463
• Court: Washington Supreme Court
• Parties: STATE v. LYNN.

154 P. 798

89 Wash. 463

STATE v. LYNN.

No. 12981.

Supreme Court of Washington

February 2, 1916

Department 2. Appeal from Superior Court, Snohomish County; Guy C Alston, Judge.

E. H Lynn was convicted of grand larceny, and he appeals. Reversed and remanded, with directions to dismiss.

Shepard Burkheimer & Burkheimer, of Seattle, for appellant.

O. T Webb, Percy Gardiner, and E. C. Dailey, all of Everett, for the State.

MAIN J.

The defendant in this case is charged with the crime of grand larceny. Whether by the information it is intended under Rem. & Bal. Code, § 2601, to charge larceny by 'color or aid of any fraudulent or false representation,' or larceny by embezzlement, or both, does not clearly appear. From a reading of the state's testimony, and the remarks of the trial judge, it would appear that up to the time when the state rested its case, there was an attempt to prove larceny by embezzlement. When the evidence in chief for the state was in, the defendant moved for a directed verdict, claiming that the evidence was insufficient to establish any crime, and that the venue was improperly laid in Snohomish county. In denying this motion the trial court required the state to elect whether it would have the cause go to the jury under the claim that the crime was committed by false and fraudulent representations, or by embezzlement. The state concluded to interpret the information as charging the crime of larceny by false and fraudulent representations. Thereupon the evidence upon behalf of the defendant was introduced, and the cause was submitted to the jury. A verdict of guilty was returned. Motion for a new trial being made and overruled, the defendant appeals from the sentence and judgment.

The facts briefly stated are: On June 18, 1914, and for some time prior thereto, the prosecuting witness, one J. B. Waggett, was operating an automobile truck between Seattle, in King county, and Cathcart, in Snohomish county, Wash., with his residence in Seattle. On that day the appellant called upon Waggett for the purpose of engaging him to haul certain store fixtures from Seattle to Cathcart. Prior to this date the parties had no acquaintance. In the course of the conversation relative to the hauling of the store fixtures, Lynn told Waggett that he was going to organize a corporation to conduct a grocery business at Cathcart in a certain store building there situated, which he had previously leased, and that the store fixtures which he was desiring to move were to be used in such business. Waggett then told the appellant that he, Waggett, also contemplated starting a store at the same place. The question of Waggett taking stock and becoming interested in the corporation to be organized by the appellant was discussed at that time by the parties. Waggett claims, and he so testified, that the appellant told him that he had sold two stores in Seattle for $4,000, and that if Waggett would invest $800 or $1,000, the appellant would invest $4,000 in cash in the business enterprise. Waggett gave a somewhat different version, which it is unnecessary here to detail.

On June 20th Waggett hauled the fixtures from Seattle and Cathcart. About a week later Waggett went to Cathcart and began constructing partitions in the rear end of the store building which was to be occupied by the business preparatory to moving his family therein, which he did on July 8th following.

Articles of incorporation for the Cathcart Grocery & Mercantile Company were duly prepared and filed; a certificate of incorporation being issued on July 14, 1914. Thereafter, and on July 17th, the appellant and wife turned over to the corporation, in payment for stock subscribed for...