State v. Whitworth

The opinion of the court was delivered by

Dunbar, J.

Defendant was tried on an information charging embezzlement, was found guilty, and sentenced. From judgment of sentence this appeal is taken. Many errors are assigned, but few of which are discussed. We will not enter into a discussion of errors not discussed in the briefs, although we have examined them, and find them without merit. The alleged error of the court in overruling appellant’s demurrer to the information is the first subject presented. The charging part of the information is as follows:

“He, the said Lawrence Whitworth, in the county of King, state of Washington, on the 23d day of August, 1901, then and there being the agent of the ‘Mutual Life Insurance Company of New York,’ a corporation, and as such agent, theretofore having been intrusted with a promissory note in writing of the value of four thousand one hundred and sixty-nine dollars ($4,169), in lawful money of the Hnited States, the property of the said Mutual Life Insurance Company, and of the tenor following:

‘Due Hovember 6th, Seattle, Wn., Aug. 6th, 1901.

Three months after date I promise to pay to the order of myself at my office, Seattle, Washington, $4,169.00, forty-one hundred and sixty-nine dollars, for value received.

Timothy D. Hinckley.’

Said note having indorsed in writing on the back thereof the name of ‘Timothy D. Hinckley,’ did then and there wilfully, unlawfully, feloniously and fraudulently embezzle and convert said note and the whole thereof to his own use, and did then and there wilfully, unlawfully, feloniously, and fraudulently fail to account to the Mutual Life Insurance Company, of New York, for said note, or any part thereof.”

We think the information is sufficient. The statute under which the information was filed is as follows:

“If any agent, clerk, officer, servant, or person to whom any money or other property shall be intrusted, with or without hire, shall fraudulently convert to his own use, or shall take and secrete the same with intent fraudulently to convert the same to his own use, or shall fail to account to the person so intrusting it to him, he shall be deemed guilty of larceny, and on conviction thereof shall he imprisoned in the penitentiary not more than ten years nor less than one year, or be'imprisoned in the county jail for any length of time not exceeding one year.” Sec. 7119, Bal. Code.

The information alleges that the defendant was the agent of the insurance company, and as such agent had been intrusted with valuable property, that he wilfully, unlawfully, and fraudulently converted the same to his own use, and failed to account for it to the party intrusting it. It can be determined from the information that the crime was committed within the time limited by law for the commencement of actions, and the crime is distinctly and clearly set forth, so that the defendant, if he be a person of common understanding, can have no possible trouble in understanding for what crime, he is called upon to answer. The statement of facts furnished him in the information is not perplexing, or calculated to leave him in doubt; and, as we have frequently said, when a defendant is furnished with definite information of this kind, the object of the law is attained. The only real question in this case is that of agency, but we are satisfied from an investigation of the record that the agency was sufficiently established. Neither is it competent for the appellant to now deny the ownership of the note in the insurance company. He treated the company as the owner of the note, and looked to the company for the payment of his interest in the note in case the policy should he accepted; for, under the custom as testified to, the note, when collectible, would have been collected by the company, and the company would then pay the solicitor his percentage. He represented himself as the agent of the company, and procured the note on the representation that it was the property of the company. Hence the ownersMp was properly alleged in the company, and the defendant is estopped to deny the agency or the ownership. The information being sufficient, and no error being discovered in the admission of testimony or in the giving or refusing to give instructions, the judgment is affirmed.

Reavis, O. J., and Hadley, Fullerton, Anders, Mount and White, JJ., concur.