State v. Zorich

• Decision Date: 07 September 1967
• Docket Number: No. 38861,38861
• Citation: 72 Wn.2d 31,431 P.2d 584
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Robert D. ZORICH, Appellant.

Page 31

72 Wn.2d 31

431 P.2d 584

STATE of Washington, Respondent, v. Robert D. ZORICH, Appellant.

No. 38861.

Supreme Court of Washington, Department 2.

Sept. 7, 1967.

Koenigsberg, Brown & Sinsheimer, W. John Sinsheimer, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Larry L. Barokas, Stephen R. Schaefer, Deputy Pros. Attys., Seattle, for respondent.

BARNETT, Judge. ^*

The defendant was charged by an information with the crime of grand larceny committed by color and aid of fraudulent or false representations. The trial resulted in a verdict of guilty as charged. The defendant received a suspended sentence and a $1,000 fine. The defendant appeals from the judgment of conviction.

A brief summary of the facts most favorable to the state is as follows: The defendant is a plumbing contractor. Standard Discount Corporation, the purported victim and complainant, is a sales finance company located in Seattle. Its normal business activity is the purchase of conditional sales contracts.

On January 4, 1965, at the office of Standard Discount, the defendant informed the president of Standard Discount, Mr. Kleinberg, that he desired to sell to the company $50,000 worth of accounts receivable purportedly due him. The defendant gave Standard Discount certain documents indicating jobs he had worked on and the amounts to be realized from such jobs, and representations were made by the defendant that these accounts owed him money. Mr. Harmon, the manager of Standard Discount, sent registered letters to each purported obligor in which there was a request that the obligation be confirmed and also a notification that the accounts were in the hands of Standard Discount. All of the registered mail receipts were signed and returned, but none of the obligors made replies to the inquiries requesting confirmation of the obligations.

Mr. Harmon testified that he talked to people by telephone who represented themselves as obligors, and that as a result of the conversation he gained the impression the accounts receivable did exist and were payable to the defendant. He also testified that he got credit reports on each of the obligors and that the good information concerning the obligors overbalanced the bad.

Mr. Kleinberg testified in substance that after the accounts were investigated it was discovered that a number of them were slow and one was very bad; but that they thought they were perfectly safe with $60,000 in security if the sale was for $30,000 instead of the $50,000 requested by the defendant.

On January 9, 1965, an agreement was executed between defendant and Standard Discount entitled 'Guarantee Agreement' which stated in essence that the purchaser had paid $30,000 for the accounts receivable; that the defendant guaranteed the sums specified as due; that there were no counterclaims or offsets by any of said obligors on the accounts; and that the seller agreed that all sums specified would become due and owing within 90 days. The agreement further specified that Standard Discount was to realize the total sum of $32,000 on these accounts and turn all excess amounts back to the defendant. Coupled with the guarantee agreement was an instrument entitled 'Assignment of Accounts Receivable.' This was also executed and delivered by the defendant to Standard Discount. This instrument assigns to Standard Discount eight accounts totaling an aggregate of $69,947.16. In this instrument there is a warranty that 'any and all work to be done in consideration of said Accounts Receivable has been completed all to the satisfaction of said obligors above named; that all sums specified as owing are true and accurate, and are due and owing as of January 8, 1965; * * *.' On the same date as the other instruments alluded to were delivered, the defendant executed and delivered to Standard Discount a promissory note in the sum of $32,000, payable within 60 days.

When the accounts were not paid, Standard Discount contacted the obligors and all of them denied owing any of the moneys listed in the assignment agreement. Standard Discount attempted to locate the defendant, but was unsuccessful at that time. Eventually Mr. Kleinberg and his attorney met with the defendant at defendant's office. Defendant's attorney was present. The defendant was interrogated with reference to the accounts, but upon the advice of his attorney he refused to give any information.

The defendant does not argue in this court that the representations were not made; neither does he contend that they were not false. He challenges the sufficiency of the evidence to support a conviction. The main thrust of defendant's contention is that there is no substantial evidence that Standard Discount relied upon the defendant's false representations.

In our consideration of this contention, we are guided by the decisions of this court that the jury is the sole and exclusive judge of the evidence and the weight and credibility of the witnesses, and that this court will not reverse if there is substantial evidence to support the jury's findings. State v. Mickens, 61 Wash.2d 83, 377 P.2d 240 (1962). In addition, a challenge to the sufficiency of the evidence requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party, and whether the evidence is sufficient to submit the issue to the jury is a question of law for the court and no element of discretion is involved. We now note the substantive law with reference to false representation in a criminal case pertinent to the issue raised in this appeal. It is not sufficient for there to be merely a false representation, but the victim must have relied upon it. However, the false representation need not be the sole means of inducing the defrauded person to part with his money, but it is sufficient if such representation was believed and relied upon by such person and in some measure operated to induce him to part with his property. State v. Cooke, 59 Wash.2d 804, 371 P.2d 39, 94 A.L.R.2d 564 (1962); State v. Peterson, 190 Wash. 668, 70 P.2d 306 (1937). Furthermore, to maintain such a charge it is not essential that the state prove the victim had a 'right to rely' upon the false representation. It is only necessary that the victim actually relied upon it. State v. Cooke, 59 Wash.2d 804, 371 P.2d 39 (1962).

In State v. Cooke, 59 Wash.2d 804, 807--808, 371 P.2d 39, 41 (1962), we quoted with approval from State v. Knowlton, 11 Wash. 512, 39 P. 966 (1895) as to the distinction between criminal law and civil law with regard to showing fraud.

'Counsel contends that a pretense, though false, and made for the purpose of defrauding, which would not have misled the person to whom made, had he exercised 'ordinary prudence and caution,' is not sufficient, and cites many authorities in support of the proposition. We think, however, that the better rule permits the jury to consider, from the facts and circumstances of a given case, what was the effect of...