State v. Patrick

• Decision Date: 04 December 1934
• Docket Number: 25278.
• Citation: 179 Wash. 510,38 P.2d 261
• Parties: STATE v. PATRICK.
• Court: Washington Supreme Court

38 P.2d 261

179 Wash. 510

STATE v. PATRICK.

No. 25278.

Supreme Court of Washington

December 4, 1934

Department 1.

Appeal from Superior Court, Grant County; C.J. Jeffers, Judge.

Paul Patrick was convicted of grand larceny, and he appeals.

Affirmed.

Rummens & Griffin, of Seattle, for appellant.

E. W Schwellenbach, of Ephrata, and S. M. Driver, of Wenatchee for the State.

MILLARD Justice.

Predicated upon the statute (Rem. Rev. Stat. § 2601) which provides that 'every person who, with intent to deprive or defraud the owner thereof * * * having any property in his possession custody or control, as bailee, * * * agent, * * * shall * * * appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto * * * shall be guilty of larceny,' an information charging Paul Patrick and Victor C. Seiler with the crime of grand larceny was filed in the superior court for Grant county. Over objection, the court permitted a trial amendment to the information by adding the words 'and one Fred Radach' after the words 'F. H. Jansen.' At the close of the state's case, the court granted a motion for directed verdict, dismissing defendant Seiler. The jury returned a verdict of guilty as to Patrick, who appealed from the judgment and sentence pronounced upon the verdict.

Counsel for appellant insist that appellant was a purchaser, not a bailee, of the wheat, therefore he could not be guilty of the crime charged. Counsel further argue:

'The State charged Patrick with conversion in Grant County of wheat, the property of Jansen and Radach, unlawfully and feloniously having the wheat in his possession, custody or control as bailee and agent.

'In the first place, the wheat was never unlawfully or feloniously in the possession of appellant.

'From the actual delivery of the wheat by Jansen to the Atwood siding, the wheat was lawfully and rightly in the possession of appellant.

'Both Jansen and Radach knew that the wheat was going to be shipped to the Coast. During the entire possession of the wheat in Grant County, it was then unquestionably in the rightful possession of appellant. If that possession ever became 'unlawful' and 'felonious', paradoxical as it may seem, it was at a time when appellant did not 'possess' the wheat, to-wit: at the time it was sold by appellant in King County.

'Hence, if a conversion occurred, the venue of this action was and is in King County and not in Grant County.

'The motion to dismiss should have been granted upon this ground alone.'

The information, as amended, '* * * accuses Paul Patrick and Victor C. Seiler of the crime of grand larceny committed as follows, to-wit: That the said Paul Patrick and Victor C. Seiler in the County of Grant, State of Washington, on or about the 27th day of September, 1932, did then and there being unlawfully and feloniously having in their possession, custody or control as bailees and agents, 650 bushels of baart wheat, the property of one F. H. Jansen and one Fred Radach of the approximate value of $200.00, appropriate to their own use said wheat, with intent to deprive and defraud the owner thereof. * * *'

The information is unambiguous. The absence therefrom of a comma between the words 'feloniously' and 'having' did not mislead the appellant. It is clear that the appellant was charged--he knew that he was so accused--with appropriating to his own use the property of another in his possession, custody, or control as a bailee or agent. It follows that if appellant had possession, custody, or control of the wheat as bailee or agent, such possession, custody, or control was not unlawful or felonious. The crime charged was appropriation by the appellant to his own use of property of another in his possession or custody as a bailee or agent. The unlawful and felonious appropriation of the property was effected when the appellant shipped the wheat from Atwood siding in Grant county to Fisher Flouring Mills in King county, and draft was drawn on the purchaser in payment for the wheat. If, however, the offense was partly committed in Grant county and partly in King county, where the wheat was delivered to appellant's purchaser, the jurisdiction is in either county. Rem. Rev. Stat. § 2013; State v. Knutsen, 168 Wash. 633, 12 P.2d 923.

The facts, summarized as follows, establish the status of appellant as a bailee, not a purchaser, and sustain the verdict that appellant unlawfully and feloniously appropriated the wheat to his own use while bailee thereof:

Paul Patrick and Myrtle Patrick, a marital community, operated, under the firm name of Fred Schwab Commission Company, three grain warehouses in Grant county, one each at Ephrata, Coulee, and Wheeler. Victor Seiler was manager of the warehouse at Wheeler. That warehouse was three or four miles northeast of Atwood siding. The wheat in question was placed in the custody of appellant at Atwood siding, and from that point appellant shipped it to a purchaser in King county. When wheat was received at the grain warehouses, receipts were issued therefor and copies of the receipts were transmitted by mail to appellant's main office at Ephrata.

F. H Jansen was operating a farm, which he was purchasing from Fred Radach, at Tiflis, about two miles from Atwood station, which was a siding where railroad cars were placed for use of shippers. On August 15, 1932, Jansen delivered three hundred and forty-five sacks of wheat at Atwood siding. Forty-five of the sacks were sold to appellant by Jansen, who informed appellant's manager of the Wheeler warehouse that the remainder, or three hundred sacks of wheat, belonged to Radach, to whom appellant should send a receipt therefor. A check dated August 19, 1932, in the amount of $44.76, as payment in full for the forty-five sacks, payable to Jansen, was given to Jansen, who cashed same. Radach, who had in the past delivered other wheat at Atwood siding and had never sold it, did not learn until some time thereafter of the delivery by Jansen of his three hundred sacks of wheat to appellant at Atwood siding or station. He telephoned appellant's manager of the Wheeler warehouse, requesting an advance on the wheat. The request was granted. On August 27, 1932, the Schwab Commission Company, by Victor C. Seiler, issued a check in the amount of $190, payable to Fred Radach. The check recites that same is an 'advance on wheat.' Accompanying the check was a promissory note of the same date as the check and in the same amount, payable to appellant's firm on or Before March 1, 1933, with interest at 8 per cent. per annum, which note Radach was required to sign as maker for the advance or loan to him on his wheat then in the custody or control of appellant--the same wheat that was delivered to appellant at Atwood siding. That note was later indorsed by appellant to the First National Bank of Ephrata, together with two warehouse purchase receipts, as collateral security for the note, issued to Radach, covering this wheat of Radach's delivered to appellant. Radach never indorsed those receipts; in fact, he never saw them until some months later when they were shown to him at the bank. In October or November, 1932, a negotiable warehouse receipt dated October 26, 1932, was...