State v. Navone, 25959.
| Decision Date | 27 June 1936 |
| Docket Number | 25959. |
| Citation | 186 Wash. 532,58 P.2d 1208 |
| Parties | STATE v. NAVONE et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; Robert M. Jones, Judge.
Bert Navone and C. L. Murray were convicted of grand larceny, and they appeal.
Reversed and remanded, with directions.
Flood Lenihan & Ivers and John D. MacGillivray, all of Seattle, for appellants.
Warren G. Magnuson, Paul Coughlin, and R. M. Burgunder, all of Seattle, for respondent.
The appellants were charged in the superior court by information with the crime of grand larceny as set forth in thirteen counts.
The substance of the charge contained in count 1 was the appellant Bert Navone did, with intent to deprive and defraud the city of Seattle, obtain from the city the sum of $101.25 by fraudulently representing in a written pay roll and claim submitted to the city officials that he Navone, had worked for the city 162 hours as a laborer on truck No. 2 of the North Seattle Garbage & Hauling Company in the month of December, 1931, and that he had earned and was entitled to receive that sum of money for the labor so performed when in truth and in fact he, Navone, had not worked on truck No. 2 at all and was not entitled to receive the sum claimed or any sum of money from the city whatsoever. The appellant Murray was charged in the same count with aiding and abetting Navone in the commission of the crime charged. The remaining twelve counts were similar in form and effect, charging the same acts as having been committed in each of the twelve succeeding months.
The case was tried to a jury which found both appellants guilty on each count, and from a judgment and sentence on the verdict both have appealed.
But three errors are assigned. The first of these questions the sufficiency of the evidence. The theory of the state was that appellant Navone, charged as principal, did in the month of December, 1931, and each month thereafter up to and including December, 1932, present to the city a written claim or voucher in which he represented that he had worked a certain number of hours in such month on truck No. 2 of the North Seattle Garbage & Hauling Company for which labor he was entitled to be paid the sum designated; that this claim or voucher was false or fraudulent in that Navone had not worked at all upon truck No. 2 during the months referred to and was not entitled to any sum of money for labor performed; and that the city officials charged with the duty of auditing and paying claims were deceived by the claim or voucher submitted and thus Navone unlawfully and fraudulently received moneys from the city each month. The appellant C. L Murray was superintendent of the garbage collection for the city of Seattle during the time mentioned and it is the theory of the state that Murray actively aided and abetted Navone in the commission of the crime charged.
Upon the other hand, the appellants, from the beginning of the trial and at all times since, have admitted with seeming frankness that Navone did not actually work on truck No. 2 during any of the months charged, that he did receive the moneys mentioned in the several counts, but that, although irregularly vouchered, the moneys were received by Navone in good faith as compensation for services fully performed.
It appears that the North Seattle Garbage & Hauling Company, which has been mentioned, was the official garbage collector in a certain portion of the city of Seattle at the times mentioned in the information and for a long time prior thereto; that Navone had a substantial financial interest in this garbage company, was its manager at all times; and that prior to the year 1926 he had actually worked on truck No. 2 of the garbage company and each month he had been vouchered as a laborer on that truck. All are agreed that Navone ceased to perform labor as a member of the crew of truck No. 2 at some time during the latter part of the year 1926.
The defense undertook to show, and now contends, that at or about the time Navone ceased to be employed on truck No. 2 he, by and with the advice and through the direction of appellant Murray as superintendent, furnished a light truck, called a complaint truck, which was put to work for the purpose of handling complaints and taking care of garbage collections overlooked or neglected by the large trucks in covering their usual routes. The defense undertook to show that Navone became the driver of this complaint truck. Navone testified that he worked daily in driving that truck as many or more hours as were vouchered to the city in his behalf and that by agreement and for the good of the service it was arranged between him and superintendent Murray that he should be paid for his labor only, the use of the complaint truck being supplied gratis, and that for convenience, since the complaint truck was not vouchered as being in the city's employ, Navone's time as a laborer in driving that truck should be vouchered as though he were still employed on truck No. 2. It is claimed that this was done openly without any pretense or concealment; that every one who had reason to know did know of the fact; and that, though irregular, the payments thus made to Navone were legitimate, being fully earned, and were received by him in good faith with no intent to defraud.
The state in its case in chief seems to have been content with showing that there was vouchered and paid these sums to Navone as a laborer on truck No. 2, when in fact, he did not labor at all on truck No. 2, together with some incidents and details bearing on the question of intent, leaving the intent to be drawn very largely from the irregularity, though, in the cross-examination of the state's witnesses, considerable evidence was developed tending more or less to corroborate the theory of the defense. The state's rebuttal was, to say the least, disappointing. No attempt was made to show that appellant Navone did not drive the complaint truck, at least to some extent, during the time in question, and the jury must have found from the evidence of the state's witnesses that Navone did drive the complaint truck, more or less, and that he was not compensated therefor other than by the payments charged in the information.
Many witnesses were produced for the defense including the appellants themselves and others who worked with, for, or under the direction of the appellants, or one of them, or were closely allied with Navone and his affairs. The testimony produced by the defense would, if it could all be accepted at its face value and could all be believed, be such as to convince the most skeptical that no offense was committed, but, of course, the jurors were the judges of the credibility of the witnesses.
Practically speaking, the...
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State v. Emery
...is to be judged not so much by what was said or done as by the effect which is likely to flow therefrom.” 13State v. Navone, 186 Wash. 532, 538, 58 P.2d 1208 (1936). Reviewing courts should focus less on whether the prosecutor's misconduct was flagrant or ill intentioned and more on whether......
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State v. Case
...State v. Stratton, supra; State v. Heaton, 1928, 149 Wash. 452, 271 P. 89; State v. Meyerkamp, supra. We think that State v. Navone, 1936, 186 Wash. 532, 58 P.2d 1208, should be included in this group, although the exception is not so explicitly stated therein as in the other In three of th......
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State v. Weekly
...was made by the defendant for an instruction to disregard the prosecutor's statement and no mistrial was asked. In State v. Navone, 186 Wash. 532, 58 P.2d 1208, 1211, we 'It is true that counsel for the defense might have then asked the court to instruct the jury to disregard the statements......
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State v. Beard
...of the possible prejudicial effects of the prosecution's misconduct is the following statement found in State v. Navone, 186 Wash. 532, 538, 58 P.2d 1208 (1936): Misconduct is to be judged not so much by what was said or done as by the effect which is likely to flow therefrom. What would be......