State v. Phipps

• Decision Date: 11 September 1933
• Docket Number: 24501.
• Parties: STATE v. PHIPPS.
• Court: Washington Supreme Court

24 P.2d 1073

174 Wash. 443

STATE v. PHIPPS.

No. 24501.

Supreme Court of Washington

September 11, 1933

Department 2.

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

Harve H. Phipps was charged with contempt of the superior court. From a judgment of dismissal, the State appeals.

Affirmed.

Chas W. Greenough and A. O. Colburn, both of Spokane, for the state.

H. E T. Herman, Ed. B. Powell, R. L. Campbell, and George W Young, all of Spokane, for respondent.

MAIN Justice.

The defendant in this proceeding was charged with contempt of the superior court. The trial resulted in a judgment of dismissal, from which the plaintiff, the state, appeals.

The facts may be summarized as follows: Harve H. Phipps, an attorney at law, was employed by the administratrix of an estate to carry on the probate proceedings. After the administratrix had taken her oath of office, but prioer to the time that she had qualified as such by giving the bond required by the court, the respondent borrowed from her out of the funds of the estate the sum of $1500 for his own use and benefit. For this loan, an unsecured note was given, dated June 3, 1929, and payable six months after date, with interest at 8 per cent. per annum. Prior to the time of borrowing the money, the respondent did not obtain an order of court authorizing such a borrowing, and subsequent to the making of the loan no order of court was entered approving it. The note, when it matured in the following December, was not paid. The administratrix having become dissatisfied with the respondent as attorney for the estate, he was discharged and another attorney substituted.

February 26, 1930, the respondent paid on the note $60 in interest and $500 on the principal. August 11, 1930, the administratrix filed a petition in the estate proceeding asking that the respondent be required to return the borrowed money he was withholding. A hearing upon this petition resulted in an order directing the respondent to restore the money to the estate on or Before November 1, 1930. With that order the respondent did not comply. November 29, 1930, on application of the substituted attorney for the administratrix, the respondent was ordered to show cause why he should not be punished for contempt. As a result of the hearing, an order was entered adjudging the respondent guilty of contempt and requiring that he pay a fine of $100 and the costs of the proceeding and be imprisoned in the county jail until such fine and costs were paid, or until otherwise discharged according to law. That proceeding was in the probate case and was not brought in the name of the state.

From the order adjudging him guilty of contempt, the respondent appealed, and the judgment was reversed ( In re Phipps, 163 Wash. 516, 1 P.2d 850), because the contempt with which the respondent was charged was criminal in its nature and the proceeding had not been brought in the name of the state. Subsequently, and on January 6, 1931, the present proceeding was instituted in the name of the state and resulted as above indicated.

There are in the case two contempts which are separate and distinct, one in borrowing the money, and the other in failing to return it in response to the court's order. In borrowing money, the respondent was guilty of misbehavior in office and was guilty of contempt, as defined in subdivision 3, § 1049, Rem. Rev. Stat. That contempt was complete when the money was borrowed and was not a continuing offense. The first proceeding to enforce the return of the money was instituted more than one year after the date that the money was acquired. Section 2005, Rem. Rev. Stat., after providing that prosecutions for the offenses for murder and arson where death ensues, may be commenced at any period after the commission of...