State v. Pettit

• Citation: 133 P. 1014,74 Wash. 510
• Parties: STATE v. PETTIT.
• Decision Date: 30 July 1913
• Court: United States State Supreme Court of Washington

133 P. 1014

74 Wash. 510

STATE v. PETTIT.

Supreme Court of Washington

July 30, 1913

Department 2. Appeal from Superior Court, Snohomish County; W. P. Bell Judge.

C. M Pettit was convicted of larceny, and he appeals. Affirmed.

Morris & Shipley, of Seattle, and Hulbert & Husted, of Everett, for appellant.

Ralph C. Bell, of Everett, for the State.

MAIN J.

The defendant, together with Florence Pettit, his wife, was charged by information with the crime of grand larceny. The information, so far as material at present, was as follows 'On or about the 2d day of January, 1912, in the county of Snohomish, state of Washington, the said defendant, C. M. Pettit, and the said defendant Florence Pettit, then and there being, did unlawfully and with intent to deprive and defraud the owner thereof, obtain from one Hattie Martin the sum of $2,900 in lawful money of the United States of America of the value of $2,900 in lawful money of the United States of America, the personal property of said Hattie Martin, then and there in the lawful care, custody, possession, and control of said Hattie Martin, by color and aid of the false representations and pretenses by said defendant, C. M. Pettit and said defendant Florence Pettit, then and there knowingly, intentionally, and fraudulently made; that creditors of one Oscar Martin were about to subject and seize and would subject and seize said personal property and money in satisfaction of claims against said Oscar Martin; and that it was essential and necessary in order to save, preserve and protect said personal property and money to said Hattie Martin that the same should be placed in the care, custody, possession, and control of them (said defendant C. M. Pettit and said defendant Florence Pettit), all of which false representations and pretenses so knowingly, intentionally, and fraudulently made by said defendant C. M. Pettit and said defendant Florence Pettit were believed by said Hattie Martin, who, relying thereon and being deceived thereby and induced thereby so to do, did then and there deliver, pay, and surrender said personal property and money aforesaid to said defendant C. M. Pettit and said defendant Florence Pettit, and the said defendant C. M. Pettit and said defendant Florence Pettit did then and there receive and obtain said personal property and money aforesaid, with the understanding and agreement then and there had between said Hattie Martin and said defendant C. M. Pettit and said defendant Florence Pettit; and they (the said defendant C. M. Pettit and the said defendant Florence Pettit) would safely hold, keep, and preserve said personal property and money for said owner thereof as bailees and trustees thereof; and they (the said defendant C. M. Pettit and said defendant Florence Pettit), having then and there received and obtained said personal property and money as aforesaid, did then and there, unlawfully and with intent to deprive and defraud the said owner thereof, secrete, withhold, and appropriate said personal property and money to their own use and to the use of some person or persons unknown to your informant other than the true owner thereof and the person entitled thereto, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Washington.' To this information a demurrer was interposed upon various grounds, but chiefly upon the ground that two crimes were charged. The demurrer was by the court overruled. The defendant pleaded not guilty. A separate trial being granted to C. M. Pettit on April 3, 1912, the cause was tried before the court and a jury. At the opening of the trial the defendant moved the court for an order requiring the state to elect upon which of the two offenses alleged to be charged in the information it would proceed; that is, whether the defendant was to be tried for the alleged crime of larceny by color or aid, etc., as defined in subdivision 2, § 2601, Rem. & Bal. Code, or for larceny by bailee or trustee, as defined in subdivision 3 of the same section. This motion was denied. During his closing argument to the jury, the prosecuting attorney stated that he did not expect a conviction under the first form of crime as charged in the information; it not being intended for that purpose. Thereupon the defendant moved the court for an order withdrawing from the consideration of the jury all the evidence admitted during the trial in support thereof, and that the jury be instructed to disregard the same. The motion was denied. The defendant was found guilty by the verdict of the jury. Motion for a new trial and motion in arrest or judgment being made in due time, both were overruled. Thereupon sentence was imposed. The defendant appeals.

The evidence in behalf of the state tends to prove substantially the following facts: During the month of August and September, in the year 1911, Hattie Martin, the complaining witness, and her husband, Oscar Martin, first became acquainted with the defendant, C. M. Pettit, and Florence Pettit, his wife. The Martins and the Pettits were at that time living in houses adjacent to each other in the city of Everett, Wash. Some time thereafter the Martins rented and moved into the upstairs rooms in the house then occupied by the Pettits. On December 4, 1911, the Martins sold the moving picture business which they for a year prior thereto had been operating. As a part of the proceeds of this transaction there came into the possession of Mrs. Martin the sum of $3,197. This she deposited in her own name in the Everett Trust & Savings Bank. About this time Mr. Martin was advised of court proceedings which had been begun against him in Minnesota to subject certain real estate which he there owned to the payment of a debt. Whether at this time there were creditors in Everett demanding payment of claims against the Martins was a disputed question upon the trial. On December 15, 1911, Mr. Martin departed from Everett for Minnesota. As soon as Mrs. Pettit knew that Mr. Martin was going East, she represented that Mr. Pettit and his father had said that Mrs. Martin should not leave her money in the bank. On account of the proceedings which had been instituted, it was not safe. Influenced by what was said and the advice so received, she indorsed the draft which the bank had issued to her and delivered it to Mrs. Pettit who obtained the money from the bank and brought it to the house. The money when delivered to Mrs. Pettit was by the teller at the bank wrapped in a newspaper. Upon arriving at the house the money was not counted, but the unopened package was by Mrs. Pettit, in the presence of Mrs. Martin, deposited behind the bookcase for safe-keeping. The next morning, the two women being uneasy about the money, the question of its disposition was discussed, and Mrs. Martin said that she would put it back in the bank from whence it had been taken. Mrs. Pettit thereupon advised her that it would be unsafe to do so and stated that she would take the money and deposit it in her (Mrs. Pettit's) maiden name in the Bank of Commerce. After some protest, Mrs. Martin consented to this arrangement. When Mrs. Pettit returned from the bank she handed Mrs. Martin a draft for $3,000, who protested that some mistake had been made by one of the banks, as the amount should have been $3,197. She thereupon commenced to get ready to go to the bank in order to have the discrepancy rectified. While she was thus engaged, Mrs. Pettit departed from the room, but soon returned with a newspaper crumpled up which she pretended she was going to put into the stove. Before she did so, Mrs. Martin turned around and Mrs. Pettit gave the paper a little shake and bills to the amount of $97 dropped upon the floor. Mrs. Pettit then pretended that she had been about to accidentally burn the money, and stated that if she had done so that Mrs. Martin would have thought that she had stolen it. Mrs. Martin, however, protested that this would not have been the case, and assured her that she would trust her with anything she had. Mrs. Martin took the $97, and the discrepancy of the additional $100 was apparently not then thought of. A few days later Mrs. Martin went to the bank, drew out $55, and deposited the remaining $2,945 in her own maiden name. Thereafter Mrs. Pettit asked her concerning whether she had left the money deposited in Mrs. Pettit's name, and upon being told that she had not Mrs. Pettit protested that she should have done so, and told her that it was a great risk to do as she had done, and that Mr. Pettit had said that she should not so keep the money. Mrs. Martin, however, assured Mrs. Pettit that she was not worried about the money; that she thought it as safe in her maiden name as in Mrs. Pettit's. The matter was not mentioned again for a few days, when Mrs. Pettit came in one morning and stated that she had a presentiment that the money was attached. Mrs. Martin assured Mrs. Pettit that she did not think there was any cause for alarm and that she would not pay any attention to it. A few days later Mrs. Pettit again approached Mrs. Martin and told her that Mr. Pettit and she had devised a way to put the money so that it would be perfectly safe. Upon inquiry as to how this was to be done, Mrs. Pettit stated that they would put it in note form. Mrs. Martin then assured her that it would be only a few days until her husband would return from the East and that she thought that the money would be all right until then and until they got ready to leave for California shortly thereafter. Mrs. Pettit advised Mrs. Martin that she must not so leave it and further stated that she intended to see that the money was safe before she left on a contemplated visit which she had informed Mrs. Martin she was...