State v. Sterett, 22410.

• Decision Date: 22 January 1931
• Docket Number: 22410.
• Citation: 160 Wash. 439,295 P. 182
• Parties: STATE v. STERETT.
• Court: Washington Supreme Court

295 P. 182

160 Wash. 439

STATE v. STERETT.

No. 22410.

Supreme Court of Washington

January 22, 1931

Department 1.

Appeal from Superior Court, Lincoln County; W. M. Nevins, Judge.

J. I Sterett was convicted of larceny by embezzlement, and he appeals.

Affirmed.

W. W Zent, of Odessa, and Powell & Herman, of Spokane, for appellant.

Joseph H. Johnston, of Davenport, for the State.

PARKER J.

The defendant, Sterett, was, by information filed in the superior court for Lincoln county, charged with the crime of embezzling, in that county, on or about August 16, 1928, the sum of $50 belonging to Sidney Horn. A trial in that court sitting with a jury, resulted in a verdict finding Sterett guilty and a judgment rendered thereon against him, from which he has appealed to this court.

In July, 1928, Sidney Horn, a man of about 60 years of age, came to the farm of the defendant, Sterett, in Lincoln county, and commenced working for him as a farm hand. Horn brought there his team of horses, wagon, and camping outfit. After working for Sterett some two weeks, Horn became sick and then went to a hospital in Spokane about August 5, 1928, for care and treatment. Spokane is some fifty miles distant from the Sterett farm. Horn had a wife and two children, Cecil Horn and Mrs. A. W. Swaney, living in Spokane. Horn left his team and other property in care of Sterett and authorized Sterett to sell the team and keep all he could get for it over $50, and to keep the $50 until he (Horn) came back. There was no understanding as to any disposition of Horn's other property. Nor was there any settlement then made for the wages due Horn; it evidently being the intent of both parties that such settlement should also await Horn's return. On August 16th, while Horn was at the hospital, Sterett traded Horn's horses to F. G. Magin, a farmer living some four miles distant from Sterett's place. In that trade Sterett received for Horn's horses Magin's check for $75 on the Lincoln County State Bank and two other horses of apparently small value. Soon thereafter Sterett received the proceeds of the check and thus became the holder for Horn of the sum of $50. Thereafter on August 24, 1928, Horn died while at the hospital in Spokane. Sterett learned of Horn's death soon thereafter. The horses have been at all times since acquiring them by Magin alive and in his possession up to the time of the trial of this case in November, 1929.

Soon after Sterett learned of Horn's death, Magin met him, when, according to Magin's testimony, the following conversation occurred between them: 'I was coming in from my home and there was a wreck--a Ford car in the ditch and I saw Mr. Sterett--I called to him to wait a minute and I got out and went back to Mr. Sterett and asked him how Mr. Horn was and he said the old gentleman was dead--and I said 'what did he think about the deal--was it all right?' and he say 'absolutely all right,' and I said 'did you give him that check?' and he says 'I did,' and I says 'very well.' * * *'

Sterett did not see Horn at any time after he went to Spokane, and had not given Horn the check or the $50. Thereafter in September, 1928, Mr. and Mrs. A. W. Swaney, Horn's son-in-law and daughter, went to Sterett's place and talked to him, this with a view of ascertaining what property Horn had left there. Mr. Swaney testified with reference to conversation he then had with Sterett as follows: 'We went down there to settle up my father-in-law's affairs after he died. * * * The subject of disposing of the team was brought up and Mr. Sterett said he had sold the team to a man over by Harrington. Sterett said he was afraid the man at Harrington would not pay for the team and he would have to repossess it, and I told him if we did repossess the team I would like him to keep them through the winter, and he said he would put them on pasture there and let them run with his horses.'

Mrs. Swaney, Horn's daughter, testified to having heard this conversation between her husband and Sterett. At that time there was some discussion about the wages due from Sterett to Horn. It was then tentatively agreed that there was $28 due and that sum was later paid by Sterett to Horn's widow. In March, 1929, Mr. Swaney had made further inquiry about Horn's horses and Sterett's disposition of them, when he discovered Sterett had disposed of them to Magin instead of to some one over by Harrington many miles distant from Magin's place. Being so informed, he went, with Horn's son, Cecil Horn, to see Sterett and make further inquiry with reference to the horses and their disposition. Swaney testified as to what then occurred as follows:

'Q. What conversation did you have with Sterett when you went out there? A. I went out with Mr. Cecil Horn and we talked in the house awhile; then Sterett said the team had died.

'Q. What team did he refer to? A. Mr. Horn's team.

'Q. Did he say anything about having taken the team back from Harrington? A. He said he had to take them back, the man did not pay for them.

'Q. Then what did he do, if anything? A. He said he would take us out and show us the team. Then after talking in the house awhile we went out in the barn--then he took us over the hill to where he showed us a dead horse.

'Q. Did you know the team of Mr. Horn's at that time? A. I did.

'Q. Was there any difference between his team and the dead horse you looked at? A. Well, the dead horse looked quite a little lighter in color.

'Q. At that time had you already seen Mr. Horn's team somewhere? A. I did.

'Q. You knew then when you were shown this dead horse, where Mr. Horn's team was? A. I did.

'Q. Who was present when you looked at the dead horse? A. Mr. Horn [meaning the son].'

The son confirms this testimony of the son-in-law, Swaney, as to this conversation had with Sterett. When Sterett made the bargain by which he received the $75 check as part consideration for Horn's horses, he asked of Magin that he receive that sum in cash. Magin, not having that much money with him, insisted on giving him a check, which Sterett evidently reluctantly received, but saying to Magin, 'You write it to me and I will take it up tomorrow,' having previously said, 'Give me the cash; I want to take it to him in the morning.' Sterett never paid any portion of the $50 to Horn or to his widow or heirs or to any one else. This he was probably not in a strict legal sense required to do, since neither of them nor any one else has been appointed administrator of Horn's estate. But it is apparent that Sterett not only failed to account for the $50 to Horn or to his estate, but at all times secreted his possession of it as much as was within his power. So Horn's widow and children had no occasion until the spring of 1929 to suspect that Sterett had received the $50 in the disposition of the horses. Sterett was charged with the embezzlement of the $50 by secreting and appropriating it to his own use, and was arrested upon that charge in the latter part of March or early in April, 1929. When Sterett was soon thereafter arrested by two deputy sheriffs, according to their testimony, he told them that the horses were dead. A new charge in the form of an amended information was filed against him in October, 1929, upon which he was tried and found guilty by the verdict of a jury, returned November 19, 1929, upon which the final judgment against him was rendered which is here sought to be reversed.

The principal contention here made in behalf of Sterett seems to be that the evidence is insufficient to sustain the verdict and judgment rendered against him, and that the trial judge should have so decided as a matter of law, in response to timely motions made in that behalf. The argument, as we understand counsel, is, in substance, that, since no demand was ever made upon Sterett for the $50 by Horn or any duly appointed administrator of...