State v. Sedam

• Decision Date: 26 May 1955
• Docket Number: No. 33138,33138
• Citation: 46 Wn.2d 725,284 P.2d 292
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Robert J. SEDAM, Appellant.

Page 725

46 Wn.2d 725

284 P.2d 292

The STATE of Washington, Respondent, v. Robert J. SEDAM, Appellant.

No. 33138.

Supreme Court of Washington, Department 1.

May 26, 1955.

Rehearing Denied July 1, 1955.

Gagliardi, Ursich & Gagliardi, Tacoma, for appellant.

John J. O'Connell, Thomas R. Garlington, John A. Petrich, J. Houston VanZandt, Jr., Tacoma, for respondent.

OTT, Justice.

This is an appeal from a judgment based upon the verdict of a jury finding the defendant guilty upon three counts of grand larceny.

During the month of June or July, 1949, the defendant, Robert J. Sedam, an accountant, was employed by Charles L. Long to set up and keep the books for his tavern business in Tacoma. He continued as bookkeeper until Long sold the tavern.

In March, 1953, the defendant started cashing checks, drawn on his account at the Central Bank of Tacoma, at Long's tavern. The first check was for $250, and they increased almost daily for a period of two months, until there was sufficient cash on hand at the tavern to cover his checks. Thereafter, the defendant would deposit his personal check, drawn on the Central Bank, with the Long deposit in the Puget Sound National Bank, and withdraw an equal amount in cash from Long's account. When Long asked the defendant for an explanation, he responded, on one occasion, that a divorce proceeding was pending and that his wife had his account tied up. On another occasion, he stated that he was using the money in operating a fuel business.

In July, 1953, Long sold his tavern business, requested the defendant to close his books, and took a trip to California. Before Long left, the defendant requested him to leave a supply of checks signed in blank, so that the defendant could carry on his fuel business as before. Long left fifty such checks with the defendant. Upon Long's return from California, the defendant promised him a partnership interest in the fuel business, and requested more checks signed in blank. Long complied with this request.

During this entire period, the defendant, by the use of the signed checks, had established a systematic pattern of deposits and withdrawals with both banks. He deposited his personal checks drawn on the Central Bank, to Long's account in the Puget Sound National Bank. At the same time, defendant would withdraw from the Long account, in cash, a sum equal to the amount of his personal checks. He thereafter deposited the cash thus obtained to his personal account in the Central Bank. There were forty-three such transactions prior to the following three in question.

On August 25, 1953, defendant presented to the Puget Sound National Bank a check in the amount of $9,750, made payable to and signed by Charles L. Long. At the same time, he deposited to the account of Charles L. Long in that bank his personal checks in a like sum, being ten checks of $975 each drawn on his account in Central Bank. Defendant requested and received the full amount in cash, principally in $20 bills. At the time of the withdrawal, defendant knew that neither his account at the Central Bank nor Long's account at the Puget Sound National Bank was sufficient to cover this transaction, which is alleged as count I of the information.

On August 26th, the defendant presented one of Long's checks to the Puget Sound National Bank, made payable to that bank in the sum of $9,850, and, similarly to his previous day's transaction, he deposited ten of his personal checks drawn on the Central Bank in the sum of $950 each, and one check for $350. He requested and received from the bank cash in the sum of $9,850. Defendant knew there were not sufficient funds in either of the above accounts to pay the checks upon their presentation. This transaction constitutes count II of the information.

On August 27th, defendant presented one of Long's checks in the sum of $2,000, made payable to the Puget Sound National Bank, and deposited to Long's account eleven of his personal checks drawn on the Central Bank in the sum of $900 each, and two checks of $950 each, making a total of $11,800. He requested and received from the Puget Sound National Bank $2,000 in cash. At the time of this transaction, defendant knew there were not sufficient funds in either account to cover the checks upon their presentation, and this act is alleged as count III of the information.

Subsequently, at a conference at the Puget Sound National Bank, defendant assumed sole responsibility for his conduct, and stated that he probably would be imprisoned for his wrongdoing.

The information charges the defendant with the crime of grand larceny, in the language of the statute, alleging the above fraudulent transactions with the Puget Sound National Bank.

At the trial, the defendant claimed that he had entered into an agreement with Long to use his account; that he was paying Long fifty dollars a day for the withdrawal privilege; that no fraud was intended; and that he considered the money he had received as a loan, which he intended to repay. Long denied any such agreement.

The jury found the defendant guilty, and from the judgment and sentence imposed by the court, he has appealed.

The appellant assigns as error the admission of evidence relating to other offenses, and the failure of the court to properly instruct the jury with reference thereto.

In support of this assignment, appellant contends that he was prejudiced in two particulars: First, that there was evidence admitted as to an attempt to defraud and cheat his wife, and, second, that there was evidence admitted as to an attempt to defraud Long by his statements regarding a nonexistent fuel business. Neither of these matters, according to appellant, have any relation to the offenses charged, of defrauding the Puget Sound National Bank.

This contention, in our opinion, is untenable; first, for the reason that, in establishing an intent to defraud, this court permits a wide latitude of proof. Any evidence which would tend to establish an intent to defraud is relevant. State v. Jeane, 1950, 35 Wash.2d 423, 427, 213 P.2d 633. These statements were part of the scheme or trick which ultimately resulted in the transactions alleged in the three counts in the information. The statements were, therefore, relevant.

Secondly, proper evidence is not to be excluded because it may also tend to show that the accused has committed another crime, unrelated to the one for which he is being tried. State v. Edelstein, 1927, 146 Wash. 221, 236, 262 P. 622; State v. Baird, 1939, 200 Wash. 227, 231, 93 P.2d 409, and cases cited; State v. Jeane, supra, 35 Wash.2d at page 428, 213 P.2d 633. The test is, does the questioned evidence tend to establish (1) motive, (2) intent, (3) absence of accident or mistake, (4) a common scheme or plan, or (5) identity. State v. Hartwig, Wash. 1954, 273 P.2d 482.

Although the statements may have been prejudicial to the appellant, the testimony nevertheless was relevant to establish motive, intent, and a common scheme or plan. The court did not err in ruling it admissible.

Appellant contends that the court did not properly instruct the jury with reference to the consideration, if any, that the jury should give to the evidence of prior transactions with the two banks and with Long, as such evidence related to the later offenses charged.

Near the close of the state's testimony in chief, the court orally instructed the jury as follows:

'I wish to advise the members of the jury that a number of exhibits have been admitted which show transactions between the two banks and through these accounts back as early as April and May, and then on into June and July and August of this year. I wish to instruct you that these transactions have been admitted for two...