State v. Emerson

259 P.2d 406, 43 Wash. 2d 5, 1953 Wash. LEXIS 278

• Court: Washington Supreme Court
• Decided: July 29, 1953
• Docket: 32260
• Status: Published

Opinions

Schwellenbach, J.

— This is an appeal from a judgment and sentence for grand larceny, upon a verdict of guilty by a jury.

At the outset, we wish to state that we have experienced some difficulty with the record because of the many changes of attorneys. The defendant was originally represented by John Wesley Dolby. Dolby was discharged by the defendant, and J. Edmond Quigley represented him during the trial. After the verdict, Mr. Quigley was discharged and the defendant employed Paul M. Stocker and Stanley L. Conroy, who argued a motion for new trial, and prepared the brief on appeal. They were later discharged, and the defendant presented the oral argument before this court.

Defendant was charged with grand larceny in five separate counts, each count involving different individuals. We quote count I (the others are similar):

“He, the said Russell Sage Emerson, in the County of King, State of Washington, during the period from on or about the 2nd day of May, 1950 to on or about the 30th day of May, 1950, with intent to deprive and defraud the owners thereof, willfully, unlawfully and feloniously did obtain from Thomas A. West and Ruth H. West, husband and wife, personal property of a value in excess of $25.00, to-wit: the sum of $465.00 in lawful money of the United States, the property of the said Thomas A. West and Ruth H. West, by color and aid of false and fraudulent representations, pretenses, trickery, scheme and device, to-wit: by representing and pretending that he was a capable residence construction contractor, that he could secure a loan to finance the construction of a residence for said Thomas A. West and Ruth H. West, that the sum of $465.00 was necessary to pay for architects fees and services, blue prints and specifications, and cost of getting bids on sub-contracts, that the architects fee was $250.00; relying upon said false representations, pretenses, trickery, scheme and device, Thomas A. West and Ruth H. West, husband and wife, turned over to the defendant Russell Sage Emerson the sum of $465.00 in lawful money of the United States, and the said defendant did then and there receive and obtain said property, with the understanding that he would safely hold, keep and maintain said property for the said owners thereof, as bailee, agent and trustee thereof and to use said property to pay the architects fees including blue prints and specifications, and the costs of getting bids on subcontracts, and the said defendant Russell Sage Emerson, having received the said property as aforesaid, did then and there willfully and unlawfully and feloniously, with intent to deprive and defraud the owners thereof, secrete, withhold, appropriate and convert the same to his own use;

“Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Washington.”

At the close of the state’s case, the trial court dismissed counts II, III, and IV, and also eliminated all allegations of the other two counts except as to architect’s fees. He stated:

“The defendant is now accused in count I of obtaining the sum of $465 from Thomas A. West and Ruth H. West, his wife by falsely representing that the architects fee was $250. As to Count V, he is charged with obtaining $325 from David A. Palumbo by falsely representing that the architect’s services was the sum of $250.”

The Wests contacted the defendant in response to an advertisement he had inserted in a newspaper. After a couple of interviews, the following agreement was entered into:

“Russell Emerson

1309 Aurora GA. 0183

Building Agreement

“I, Russell Emerson, construction Supervisor, hereinafter called Supervisor, do hereby propose to procure blue prints, sub-contract bids and supervise construction of a residence for Mr. & Mrs. Thomas West, hereinafter called Owner, to be located at N % L 38 all 39-40 & 41 B 4 Cascade Add. Following is a description of said proposed house: Living room, 2 bedrooms, kitchen with eating space, full basement, frame construction, automatic oil burner, Fireplace, plans drawn by Architect to Owner’s specifications.

“Supervisor agrees to produce house for Owner at cost of sub-contract bids on labor and materials with added service fee of Fifty Dollars ($50.00) weekly for ten weeks supervision.

“During construction Supervisor’s duties shall consist of (a) ordering of all materials such as lumber, concrete, etc.; (b) ordering of bulldozer on job and hiring of competent workmen; (c) synchronize arrival on job of all subcontractors such as electricians, plumbers etc.; (d) inspect and order corrected any work not done according to blue prints and specifications; (e) reject and re-order any materials of inferior grade that may appear on job; (f) instruct and advise Owner in any work such as painting, rock-lathing, sub-flooring, etc. that he may wish to do himself; (g) present Owner each week with a list of bills on labor and materials due.

“A payment of $465.00 to Supervisor is hereby acknowledged to cover cost of Architectural fees, services to include planning of house with Owner, finished blue prints and specifications at F.H.A. standards or better; cost of getting list of bids on sub-contracts and (owner has survey)

“Owner agrees that for a period of three months after house is completed and occupied Supervisor shall be privi-ledged to show house to at least two prospective home-builders during that time. Upon request, Owner agrees to state cost of house to prospective builder and terms of construction.

“Signed and dated this 2nd day of May 1950.

“[Signed] Thomas A. West paid $240.00 on

Ruth H. West account. Balance

Russell Emerson $225.00 due when

paid in full total of sketches by

$465.00 architect approved.

[Signed] Russell Emerson Russell Emerson”

The Palumbo contract was identical, with the exception that the amount paid down was $325. There were no payments of fifty dollars weekly for supervision, since neither house was constructed.

The Wests and Palumbo testified that Emerson told them the architect’s fee would be $250; that no part of the down payments were to go to him personally; that all that he was to realize was the fifty dollars per week for supervision.

A. Eugene Fulton and Lawrence MacDonald, architects, testified that, prior to the time defendant contacted the Wests and Palumbo, they had an understanding with him that they were to make plans and specifications for homes for $150 apiece, and that they charged him $150 each for the plans; that their usual fee for this work was $250, but, because of the volume of business which he brought in (twenty-two plans by Fulton, two homes being completed), coupled with the fact that he did some preliminary work, they were able to reduce the charge for each set of plans. Mr. Fulton testified that one of the considerations in giving defendant the lower price was the volume of business coming to him. Defendant’s sketches and preliminary work were not of sufficient detail and accuracy to permit the architects to go ahead with the plans.

The defendant testified that he made no representation to the Wests or Palumbo, at the time the contracts were signed or the money paid to him, as to the amount to go to the architect; that it was some time later, after they had experienced difficulty in obtaining loans, that they carné and told him they had contacted the architects and had learned that he had an agreement with the architects to pay only $150 for each set of plans; that he explained to them that he obtained a reduction in price because he did part of the work on the plans; that a Mr. Ikonen helped him do the sketching and that he paid Ikonen three hundred dollars per month. He admitted writing to Frank Harrington, deputy prosecutor, “Mr. West originally paid me four hundred sixty-five dollars ($465.00) in cash. Before receiving this money I told him the price of my procuring blue prints for him would be $250.00, and both he and his wife agreed to this sum.”

Appellant makes the following assignments of error:

“1. That the court erred in refusing to dismiss what remained Counts I and Y against appellant because there is no evidence whatsoever in the Statement of Facts that any false representation as to a material fact made by appellant, if such was made, was made prior to the time of the entry of the parties into the contract herein or prior to the time of delivery of the money;. and, therefore, that said Wests or Palumbo did not act because of false representations or were not induced to turn over the money to Emerson by false statements or false representations.

“2. That the court refused to give appellant’s proposed instructions relating to Remington’s Revised Statutes, Section 2608 under Claim of Title when same is ground of defense. That said proposed instruction was as follows:

“Instruction No. 6

“The laws of the State of Washington provide that, in any prosecution for larceny, it shall be a sufficient defense that the property was appropriated openly and avowedly-under a claim of title preferred in good faith, even though the claim is untenable. Therefore, if you find from the evidence that the defendant withheld or appropriated to his own use the property or money described in the information, that he did so openly and avowedly under a claim of title preferred in good faith, that is, honestly believing that he was legally entitled to it as his own, then your verdict should be not guilty.

“3. That any information given by appellant to the Wests or Palumbo regarding the value or price of architectural fees was merely an expression of an opinion and not the statement of an existing or past fact, but contingent upon future events. That if there was a representation made by appellant false in nature, there is no evidence that the same was relied upon by the complaining witnesses. That the court erred in holding that there was sufficient evidence to take the case to the jury, and denying motion for new trial.”

We quote the portions of the larceny statute (RCW 9.54.010) pertinent to our inquiry:

“Every person who, with intent to deprive or defraud the owner thereof— . . . (2) Obtains from the owner . . . the possession of . . . any property, real or personal, by color or aid of . . . any fraudulent or false representation, . . . pretense . . . or by any trick, device, . . . steals such property and shall be guilty of larceny.”

Instruction No. 2, setting forth the elements, was as follows:

“In order to convict the defendant of the offense of grand larceny as charged in count I of the amended information, the state must prove to you beyond a reasonable doubt each of the following essential elements:

“1. That in approximately the month of May, 1950, the defendant did obtain from Thomas A. West and Ruth H. West, his wife, the sum of $465 in lawful money of the United States;

“2. That defendant did so obtain said money or a portion thereof in excess of $25 with intent to defraud the said Thomas A. West and Ruth H. West thereof by making a false and fraudulent representation, to-wit: that the sum of $250 of said funds would necessarily have to be paid as an architect’s fee;

“3. That at the time said representation was made, defendant knew the same to be false, and that in fact such representation was false in that said architect’s fee would be a lesser amount as defendant well knew;

“4. That Thomas A. West and Ruth H. West both relied upon said representation and solely because thereof delivered said sum to the defendant, and that had such representation not been made and so relied upon the said Thomas A. West and Ruth H. West would either not have delivered said sum of money at all, or would have delivered said sum of money in an amount over $25 less than $465;

“5. That said act so occurred in King County, Washington.”

Instruction No. 3, as to count Y, was similar.

When the trial court struck certain allegations of counts I and V, appellant consented thereto by presenting, his testimony. No motion to dismiss was made at the close of the entire testimony.

There was a sufficient conflict of testimony as to the time of the making of the purported false representations to warrant submission of that question to the jury. There is no merit in assignment of error No. 1.

Proposed instruction No. 6 was manifestly based on RCW 9.54.120, which provides that in any prosecution for larceny it shall be a sufficient defense that the property was appropriated openly and avowedly under a claim of title preferred in good faith, even though the claim be untenable. The trial court, in striking certain portions of counts I and V, took from the consideration of the jury the question as to whether or not appellant appropriated the money to his own use. At no time during the trial did the defendant •contend that he made a claim of title to the money at the time that he received it from the Wests and Palumbo. The crime of larceny by false pretenses was complete at the time that the Wests and Palumbo parted with their money in reliance upon the false representations which had been made with the intent to deprive them of their money.

A false representation of a material fact, made for the purpose of inducing another to part with his property and with the intent to deprive him of his property, is inconsistent with any open and avowed claim of title preferred in good faith; and the defense allowed by the statute is unavail-ablé in a prosecution for obtaining money by false pretenses.

The witnesses testified that appellant stated to them, as a fact, that the architect’s fees would be $250. At that time, he had an agreement with the architects that the fee would be $150, and that is the amount he paid them for each set of plans. These-statements were not merely the expression of an opinion contingent upon future events. In State v. Parkinson, 181 Wash. 69, 41 P. (2d) 1095, we said:

“While the particular language used by one in a given instance may, under one set of circumstances, be expressive of an opinion only, it may, under another set of circumstances, be taken as an expression of fact. If a representation regarding one’s authority or ability to accomplish a certain result be made by one who occupies, or claims to occupy, a position or relation which apparently enables him to dictate, control or effect such result, then such representation will be regarded as an expression of fact.”

The contract which appellant induced the Wests and the Palumbos to sign was adroitly drawn. He told them that all that he was to realize was the fifty dollars per week for supervision, and that no part of the down payments were to go to him personally; that included in the down payments was the sum of $250 for architect’s fees. The testimony of the witnesses regarding appellant’s dealings with them, and appellant’s testimony on the witness stand, would indicate that he was a “smooth talker.” The Wests and Palumbos were not educated people. They had had no business experience along these lines and were vitally interested in building homes for themselves. The question as to whether or not they believed appellant’s representations concerning the cost of architectural fees, and, in reliance thereon, were induced to part with their money, was properly submitted to the jury. Underhill’s Criminal Evidence (4th ed.) 1318, False Pretenses § 703; 22 Am. Jur. 459, False Pretenses, § 26.

The record does not contain a motion for a new trial. Nevertheless, respondent admits that such a motion was filed by Mr. Quigley and that it included therein the ground “That the verdict is contrary to the law and the evidence.” However, at the hearing on the motion, appellant’s then counsel waived all other grounds and relied solely upon misconduct of jurors. This was based on an affidavit of one Ellen Haehnel that, during a noon recess of the trial, she had heard one juror tell other jurors of a telephone conversation whereby he learned the defendant was a robber and a murderer. There was also an affidavit by the defendant that he had been informed of the conversation by Mrs. Haehnel; that he had not intended taking the witness stand, but that because of such information he deemed it necessary to take the stand; that the result of the conversation and his taking the witness stand created such prejudice that he was not afforded a fair and impartial trial.

The trial court conducted an extensive hearing on these charges. A juror denied that there was any conversation among the jurors concerning the defendant’s criminal record. It also developed at the hearing that some woman had called a couple of jurors on the telephone one evening, stating that she was one of the fellow jurors, asking them what they thought about the trial, and whether or not they thought the defendant was guilty. At the conclusion of the hearing, the trial judge denied the motion for new trial and stated that, in his opinion, Mrs. Haehnel committed perjury.

In his oral argument before this court, appellant abandoned the grounds presented in the brief and urged a new trial on other and new grounds which were outside of the record. An appeal must stand or fall on the record made in the trial court. .

Appellant was effectively and vigorously defended by Mr. Quigley. The trial court was patient, fair, and alert at all times to protect appellant’s rights. We find no error in the record.

' The judgment and sentence is affirmed.

Mallery, Hill, Donworth, Weaver, and Olson, JJ., concur.