State v. Peterson

• Decision Date: 19 July 1937
• Docket Number: 26670.
• Parties: STATE v. PETERSON.
• Court: Washington Supreme Court

70 P.2d 306

190 Wash. 668

STATE v. PETERSON.

No. 26670.

Supreme Court of Washington

July 19, 1937

Department 2.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

H. M Peterson was convicted fo grand larceny, and he appeals.

Affirmed.

Oscar A. Zabel and Charles M. Chambers, both of Seattle, for appellant.

B. Gray Warner and Albert D. Rosellini, both of Seattle, for the State.

HOLCOMB Justice.

Appellant was charged by information in the court below with the crime of grand larceny in four counts.

In count 1 he was charged with having obtained from one Emma Oakquist on or about May 17, 1933, the sum of $1,000 by false and fraudulent pretenses and representations, trick, device and bunco game. In count 2 he was charged with having, on May 8, 1933, obtained $3,235 from one Edward Hanson by similar false pretenses and representations. Count 3 charged him with having obtained, on or about May 15, 1933 $1,000 from Hans Ebeltoft by similar means. This count was dismissed by the trial court for the reason there was not sufficient evidence to support it. Count 4 charged him with having obtained $550 from Richard W. Anderson on about May 10, 1933.

Appellant was convicted on three of the counts above set forth and appeals to this court.

He sets forth five assignments of error, the first of which is in overruling appellant's motion for a new trial. The first ground of that motion is based upon the fact that a juror named Anna C. Maxson was and is the mother of Frances Maxson, who is a deputy prosecutor of King county.

Cases are cited by appellant from Georgia, Perrett v. State, 16 Ga.App. 587, 85 S.E. 820, and Grawley v. State, 151 Ga. 818, 108 S.E. 238, 18 A.L.R. 368, based upon a different statute and rule than applies in this state, where there is no such disqualification.

Our statute, Rem.Rev.Stat. § 330, prescribes:

'A challenge for implied bias may be taken for any or all of the following causes, and not otherwise:----

'1. Consanguinity or affinity within the fourth degree to either party.'

The cases cited by appellant from Georgia are cases where a juror was related within the statutory prohibited degree in Georgia to a prosecuting witness in a criminal case. That rule might apply here if the prosecuting witness on one of the four counts in this information was related to a juror within the fourth degree under our statute and the fact was unknown to the accused.

The general rule is: 'A juror is not incompetent in a criminal action because related to the prosecuting attorney, or to defendant's counsel, or, in a civil action, because related to the attorney of one of the parties, except where such attorney is directly interested in the event of the action.' 35 C.J. 321.

There is no merit in the first complaint of appellant.

The second, third, and fourth assignments raise the question of the sufficiency of the evidence to sustain a conviction under the first, second, and fourth counts in the information.

Rem.Rev.Stat. § 2601, thus defines the crime:

'Every person who, with intent to deprive or defraud the owner thereof--* * *

'(2) Shall obtain from the owner or another the possession of or title to any property, real or personal, * * * or by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune-telling; * * *

'Steals such property and shall be guilty of larceny.'

It is true that the intent to defraud is an essential element. Under that statute the court correctly instructed the jury, contrary to the contention of appellant, as follows:

'In order to convict the defendant of the crime of grand larceny as charged in any one of the respective counts of the information herein, the state must prove to you beyond a reasonable doubt:

'A. That on or about the date alleged in such count of the information the defendant H. M. Peterson, with intent to defraud the complaining witness named in said count, made one or more of the following representations to said complaining witness, to-wit:

'(1) That thirty acres of ground upon said mining claims had been sluiced off;

'(2) That on said sluiced off ground the material was only five or six feet to bedrock;

'(3) That said ground averaged $2.50 per square yard;

'(4) That said ground was completely thawed and not frozen; and

'(5) That W. S. Darrow had invested in the mining operation and was aiding the defendant to sponsor the enterprise;

'That such representation or respresentations so made to such complaining witness was in fact false the said defendant Peterson knowing said representation or representations to be false;

'B. That the complaining witness named in such count of the information then and there believed one or more of said representations and relied thereon and was deceived thereby;

'C. That by color or aid of said false or fraudulent pretenses or representations, trick, device or bunco game, the defendant obtained from said complaining witness a sum of...