State v. Ward
| Decision Date | 04 June 1917 |
| Docket Number | 13785. |
| Citation | 96 Wash. 550,165 P. 794 |
| Court | Washington Supreme Court |
| Parties | STATE v. WARD. |
Department 2. Appeal from Superior Court, Klickitat County; R. H. Back Judge.
Nathaniel L. Ward was convicted of grand larceny, and appeals. Reversed, and new trial ordered.
McMaster, Hall & Drowley, of Vancouver, and Brooks & Brooks and E. C. Ward, all of Goldendale, for appellant.
John R McEwen, of Goldendale, and Miller & Wilkinson, of Vancouver for the State.
The defendant Nathaniel L. Ward was convicted of the crime of grand larceny, and sentenced to a term in the penitentiary. The information charged that:
While acting as attorney, agent, or trustee of Sarah C Hughes and Peter Hughes, her husband, the defendant collected and came into possession of property of theirs by reason of such relation, 'and did then and there, without the consent of the said Sarah C. Hughes and her husband, Peter Hughes, or either of them, willfully, unlawfully, and feloniously embezzle said property, consisting of more than twenty-five ($25) dollars, lawful money of the United States of America, to wit, eight hundred fifty ($850) dollars, lawful money of the United States of America of the value of eight hundred fifty ($850) dollars, said money then and there belonging to the said Sarah C. Hughes and her husband, Peter Hughes, by fraudulently and feloniously withholding and appropriating said money to his own use with intent to deprive and defraud the owners, to wit, Sarah C. Hughes and her husband, Peter Hughes.'
The defendant appeals, assigning that the court erred in excluding certain evidence tendered by him, in giving certain instructions, in refusing to give certain instructions, in overruling a motion for a new trial, and in refusing to sustain a challenge to the sufficiency of the evidence.
Peter Hughes was the holder of a note for $1,000, dated March 1, 1910, payable on or before three years after date, which was secured by mortgage upon land in Klickitat county, Wash. The maker, one Smithson, having defaulted in the interest, the note was sent by Hughes to appellant N. L. Ward, then a practicing attorney residing in Goldendale, for the purpose of enforcing payment. On December 4, 1912, appellant, for Hughes and wife, instituted a foreclosure suit which was afterwards abandoned. The property had depreciated in value so that it was doubtful whether it was worth the full amount of the mortgage. The parties to the mortgage entered into negotiations for a reconveyance of the property in payment of the mortgage indebtedness, but this arrangement was never consummated. The appellant in the course of his dealings with his client Hughes had offered to trade him for the obligation an $800 mortgage on land in Tillamook county, Or., due in the year 1913. Respecting this offer Hughes wrote him as follows:
Appellant testified that he considered the trade as made, and dealt with the mortgage on the Klickitat land as his own, and held the note and mortgage on the Tillamook land for the benefit of Hughes without, however, assigning or indorsing them over to the latter. On December 1, 1913, the sum of $850 was paid to appellant in full settlement of the note and mortgage due Hughes, and a release, which had been executed by Hughes and wife on January 28, 1913, and turned over to appellant, was delivered to the mortgagor. This money received by appellant was deposited to his own credit and checked out by him as his own money. In February, 1914, the Tillamook mortgage, which appellant testified he regarded as the property of Hughes, was assigned to the Bickleton State Bank at Bickleton, Wash., on an indebtedness of the appellant to that bank. Hughes, having received no money on either the Klickitat or Tillamook mortgage, put his claim against appellant in the hands of the Gillett State Bank of White Salmon, Wash., for collection. In June, 1914, appellant wrote the bank that he was 'fix the Hughes matter up satisfactory,' and on July 16, he again wrote the bank:
'I have just received a letter from Mr. Peter Hughes and will fix the matter up as he suggests next week.'
On July 13, 1914, he had written Hughes:
On August 19, 1914, he again wrote Hughes:
'I will pay a part of the Smithson money to the bank to-morrow or next day.'
The appellant, however, made no payment to Hughes until after the filing of the information against him. On January 2, 1915, he paid Hughes in full the sum of $872.30. The fact of payment was admitted in evidence, but the court excluded other recitals in the receipt tending to exonerate the appellant.
The statute under which the respondent was prosecuted provides that:
'Every person who, with intent to deprive or defraud the owner thereof--* * * (3) Having any property in his possession, custody or control, as * * * attorney, agent, employé, trustee, * * * shall secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto, * * * steals such property and shall be guilty of larceny.' Rem. Code, § 2601.
The gist of the offense of larceny by embezzlement is the intent of the party charged to deprive or defraud the owner by withholding or appropriating his property. Any fact tending to prove or disprove that intent is properly admissible in evidence. The rule is stated in 15 Cyc. 529, as follows:
The defense in this case was that the appellant had traded his Tillamook mortgage for the Klickitat mortgage belonging to Hughes. The evidence showed that, after this alleged trade and after appellant had used the proceeds of the Klickitat mortgage as his own, he made an assignment of the Tillamook mortgage to the Bickleton State Bank. The defense sought to prove by the appellant under what circumstances this transfer was made and what arrangements he had made with the bank for raising money to sent to Hughes. This testimony was excluded. It was already in evidence that appellant in his letters had been promising to get the money for Hughes, and was not denying liability. This testimony had a direct bearing upon the question of his good faith, and, while not conclusive in itself, was admissible for the purpose of showing good faith. We think it was error on the part of the court to exclude it.
In substantiation of appellant's defense that he had a right to dispose of the proceeds of the Klickitat mortgage as his own money, he offered to prove by the witness S. A. Rossier, who had visited Hughes in Portland, Or., for the purpose of paying over the money due him from appellant, that Hughes stated in a conversation held on January 2, 1915, that he had made a trade with appellant of his mortgage on the Klickitat property for a mortgage on Tillamook property, and that the witness at that time took from Hughes a receipt as follows:
The prosecution was based on the theory that appellant had embezzled the money derived from a note and mortgage originally placed in his hands for collection while the defense was that appellant became the lawful owner of this note and mortgage through a trade made with his principal....
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...preferred in good faith appropriated the property entitled him to an acquittal. (State v. Coyle, 41 Utah 320, 126 P. 305; State v. Ward, 96 Wash. 550, 165 P. 794; People v. Lapique, 120 Cal. 25, 52 P. 40.) reasonable doubt as to whether the appropriation was within the scope of his authorit......
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... ... In ... support of this contention and in support ... [1 P.2d 310.] ... of his right to have the requested instructions given to the ... jury, appellant cites State v. Rolette, 94 Wash. 94, ... 161 P. 1042; State v. Ward, 96 Wash. 550, 165 P ... 794; State v. Post, 152 Wash. 393, 278 P. 164; and ... State v. Carr (Wash.) 294 P. 1013 ... The ... Rolette and Carr Cases, supra, were embezzlement cases, in ... each of which there was a defense that the property was ... ...