State v. Van Auken, 40144

• Decision Date: 02 October 1969
• Docket Number: No. 40144,40144
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Donald Henry VAN AUKEN and Lucille Erma Van Auken, Appellants.

Page 136

77 Wn.2d 136

460 P.2d 277

STATE of Washington, Respondent, v. Donald Henry VAN AUKEN and Lucille Erma Van Auken, Appellants.

No. 40144.

Supreme Court of Washington, Department 2.

Oct. 2, 1969.

Jackson, Ulvestad & Goodwin, Thor P. Ulvestad, Seattle, for appellants.

Charles O. Carroll, Pros. Atty., Patricia Harber, Deputy Pros. Atty., Seattle, for respondent.

NEILL, Judge.

Defendants appeal from judgments and sentencing after jury verdicts of guilty on charges of grand larceny by embezzlement.

Defendants are husband and wife. They were employed by Viking Associates in February of 1966 as managers of the Talisman Apartments in Seattle. Their duties included the collecting and depositing of monthly rentals. They were supplied with a bound book containing triplicate rental receipts. The original receipt was to be given to the paying tenant; the duplicate copy was to be removed and attached to the bank deposit slip; and the triplicate copy remained in the book as a permanent record. As compensation for their services, the defendants received the use of an apartment, $100 per month, and small bonuses whenever they persuaded tenants to sign 6-month or 1-year leases.

Relations deteriorated and on July 9, 1966 defendants were advised that they were discharged as of August 1. On July 14, 1966 the defendants disappeared without informing their employer, although the employer's offices were in the same building as, and immediately below, the defendants' apartment. Two days later, not having seen defendants since the late afternoon of the 14th, an officer and an employee of Viking Associates entered defendants' apartment. They found in the abandoned premises the bound receipt book, the bank deposit book and some undeposited rental checks. Through a comparison of the permanent copies of the receipts with the amounts deposited or left behind in the apartment, it was concluded that the defendants had received $1,449.25 more than they had deposited or left behind for their employer. The police were so informed.

By defendants' testimony it was established that they commenced packing their personal belongings on the afternoon of July 14th and left the apartment around midnight. They drove to Everett, spent the night in a motel and continued on to Montana. They then proceeded to California, where they were apprehended and extradited for trial.

Defendants first assign error to the admission of certain testimony by a Seattle policewoman regarding statements made by Mr. Van Auken during the return trip from California. The policewoman had accompanied her husband, a Seattle police sergeant, in bringing the defendants back from California. She testified to statements which she had overheard. At a preliminary hearing, pursuant to CrR 101.20W, the trial court determined that this testimony would be admissible at trial.

Defendants contend that the admission of the policewoman's testimony forced them to take the witness stand and testify against themselves, contrary to the mandate of Const. art. 1, § 9. This contention is without merit. As we said in State v. Jeane, 35 Wash.2d 423, 433, 213 P.2d 633, 639 (1950):

The language of this section (Const. art. 1, § 9) clearly indicates that the constitution grants a privilege. The use of the word 'compelled' connotes that the accused must be forced to testify against his will, that the testimony is exacted under compulsion and over his objection.

And as we further stated in State v. Moore, 60 Wash.2d 144, 147, 372 P.2d 536, 538 (1962):

This privilege is not related to the question of admissibility of nontestimonial statements or confessions. * * * The proper grounds for the exclusion of a confession are that it has been obtained in violation of the constitutional requirement of due process or that it has not met the test of our statutory requirement for admissibility of confessions.

The admission of this testimony did not operate to 'compel' defendants to testify in the constitutional sense of that term. To hold otherwise could create the incongruous result that the state could not introduce otherwise valid evidence simply because defendants might feel a need to take the stand and contradict or explain it.

Defendants also contend that this witness changed her testimony between the CrR 101.20W preliminary hearing and the trial and that this compelled them to take the witness stand and deprived them of a fair trial. Our review of the record reveals no significant change in the testimony. ¹

Indeed, what change was injected at trial made her testimony more favorable to defendants. Defendants' contention in this regard is ill-founded.

Error is assigned to the method of accounting used to show the amount of money allegedly embezzled. It is urged that some of the money received in July was used to balance the books for June and that, in response to the information under which they were charged, the defendants should have been required to account only for the receipts taken in July and not for shortages occurring in June. This argument is not well taken. The amended information in this case charges that defendants:

(D)uring a period of time intervening between the 7th day of July, 1966, through the 16th day of July, 1966, then and there having in their possession as * * * employee * * * money * * * in excess of $75.00, the property of Viking Associates, then and there willfully, unlawfully and feloniously did secrete, withhold and appropriate the same to their own use * * * with intent to deprive and defraud. * * *

The information does not purport to state when the defendants obtained possession of the funds. It simply asserts that defendants, having possession during July, there and then embezzled these funds. Thus understood, it is irrelevant that the defendants may have obtained possession of the funds at some time prior to the date specified in the information.

The defendants next assign error to the giving of instruction No. 11, which reads as follows:

If you are convinced by the evidence in this case beyond a reasonable doubt, that the act alleged as the crime with which the defendant is here charged was in fact committed, and you further find that immediately or soon thereafter the defendant fled from the place where such act is alleged to have been committed, then the flight of the defendant is a circumstance to be considered by the jury, together with the other evidence in the case. It is not sufficient in itself to establish the guilt of the defendant, but its weight as evidence is a matter for the jury to determine in connection with all the other facts in the case.

They suggest that the circumstances of their leaving for Everett did not constitute flight. We believe, however, that the facts were substantial and real so as to justify an instruction on flight. Defendants left their employment and place of residence in the middle of the night without advising their employer, even though the employer's offices were in the same building. They left checks and apartment records behind without making up a final deposit record. They admitted taking $168.80 in cash, which they contended as coming to them as salary and bonus, but did not communicate such contention to their employer in any manner. Further, there was evidence that defendants left a misleading note on the apartment door indicating they had merely gone to the hairdresser. No forwarding address was left with their employer. Cf. State v. Bryant, 73 Wash.2d 168, 437 P.2d 398 (1968); State v. Bruton, 66 Wash.2d 111, 401 P.2d 340 (1965).

Defendants contend that this instruction made it appear to the jury that the court believed defendants had left Seattle because they had committed a crime and that the instruction amounted to a comment on the evidence. We fail to see any merit in this contention. It is clear from the terms of the instruction that the fact of and weight to be accorded defendants' flight are for the jury to determine and that the jury may not consider flight sufficient in itself to establish guilt. Nowhere in the instruction do we detect the slightest expression or implication of the trial court's own belief. See State v. Cogswell, 54 Wash.2d 240, 339 P.2d 465 (1959).

Error is assigned to the trial court's refusal to give a requested instruction to the effect that the jury could not find defendants guilty for mere failure to explain the disappearance of the money, nor could guilt be based on a finding that the funds were lost by an error in judgment or the intervention of third persons. Such negative instructions, setting forth matters that will not support a conviction are not required, and it is not error to refuse them. State v. Gunderson, 74 Wash.Dec.2d 227, 444 P.2d 156 (1968). The failure to give this instruction did not prohibit defendants from arguing their theory of the case to the jury. The record makes it abundantly clear that defendants had every opportunity to present their version of the facts. The instructions amply covered the law relevant to their theory of the case.

Defendants take issue with the sentences imposed by the trial court. Under the powers granted by RCW 9.95.200 and RCW 9.95.210, the trial court granted probation and deferred sentences. Among the conditions of the deferral were the restitution of $1,449 to Viking Associates and payment of court costs. Defendants now contend that this amounts to imprisonment for debt, as proscribed by Const. art. 1, § 17. In so contending, defendants attack a statutory procedure that has been recognized as 'an enlightened step forward' in the treatment of convicted criminals. Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 10 L.Ed.2d 336 (1967). Defendants do so by means of a naked conclusion, unsupported by argument or cited authority. Such contentions will not be considered. State v. Alden, 73 Wash.2d 360, 438 P.2d 620 (1968). Cf. State v. Higgins, 67 Wash.2d 147, 406 P.2d 784 (1965).

Finally, we turn to defendant's...