119 Wash. 522 | Wash. | 1922
— Appellant was accused and convicted of the crime of grand larceny. The information alleged that he held 1,000 shares of the capital stock of the Bethlehem Gold Mines, Limited, a corporation, in his
The statute under wMch the prosecution is brought is as follows:
“Every p'erson who, with intent to deprive or defraud the owner thereof— . . .
“(3) Having any property in his possession, custody or control, as . . . agent, ... of any person, . . . shall secrete, withhold or appropriate the same to his own use . . .
“Steals such property and shall be guilty of larceny.” Eem. Code, §2601 (P. C. §8944).
Appellant complains of the refusal of the court to dismiss the defendant at the end of plaintiff’s case, and refusal to dismiss Mm at the conclusion of the case, and refusal to grant a new trial.
Appellant contends that there is absolutely no evidence that he committed the acts complained of in the information, and that the acts proven by the prosecution do not constitute a crime.
In July, 1919, Egbers left with appellant one certificate of stock, originally issued to one John Armstrong, for 1,000 shares of the capital stock of the Bethlehem Gold Mines, Limited, which had been purchased by Egbers and indorsed in blank by Armstrong. The agreement was that appellant was to sell this stock and account to Egbers for the proceeds of such sale. In January, 1920, appellant sold to Jake Wacker one thousand shares of the capital stock of the BetHehem
Appellant contends that the entries from the stock book are not competent evidence against him, and tes
The entries on the stock register, however, are inconsistent with appellant’s and Van Dusen’s explanation. Appellant sold 1,000 shares to Wacker on Janu
Appellant contends that Yah Dusen’s method of showing the stock transfers was nothing but a matter of bookkeeping followed of his own accord; but this cannot be sustained. The statutes governing private corporations in this state provide: first, that the stock of the company shall be deemed personal estate, and shall be transferable in such manner as shall be prescribed by the by-laws of the company; but no stock transfer shall be valid, except between the parties thereto, until the same shall have been entered upon the books of the company, so as to show the names of the parties by and to whom transferred, the numbers and designation of the shares, and the date of the transfer (Rem. Code, § 3693 [P. G. § 4520]); second, that it shall be the duty of the trustees of every company incorporated to keep a book containing the names of all persons, alphabetically arranged, who are or shall be stockholders of the corporation, and show the number of shares of stock held by them respectively,
Notwithstanding Yan Dusen’s attempted falsification of the record in his testimony, it must be assumed that he was attempting to comply with the law regarding the record of stock issued and transferred, and also that appellant, having full charge of the corporation as president, and of its promotion, knew the law, made at least some effort to comply with it, so that he and all others would know who were stockholders, when they became such, who had ceased to be stockholders, and when and how. The records, therefore, under the statute, were competent evidence, and the jury were justified in disbelieving appellant and Yan Dusen, and believing the record.
It is argued that appellant is not bound to keep the identical shares of stock on hand, but could replace the shares intrusted to him by Egbers with other treasury stock, and that he had plenty of such stock with which to replace the stock received from Egbers, find had offered to replace the same with 1,000 shares of treasury stock. Thompson on Corporations, vol. 4, § 4235, is cited to the effect that a pledgee generally is not bound to keep the identical shares on hand. Under the evidence and information in this case, appellant was not a pledgee, but was an agent or bailee, and as such the statute under which the prosecution was instituted applies.
‘ ‘ One who sells property as an agent, and who subsequently conceives an intent to and does misappro*528 priate the proceeds, embezzles the proceeds, and not the property.” (Henderson v. State, 55 Tex. Cr. 640, 117 S. W. 825.)
A somewhat similar case in onr own court is that of State v. Campbell, 99 Wash. 502, 164 Pac. 968, where the defendant was given a note and mortgage for collection. He sold the note and mortgage and failed to account for the proceeds. He claimed he purchased the note and mortgage from the holder thereof, and that the relation of debtor and creditor, instead of principal and agent, existed between them. The jury found that the relation of principal and agent existed between the parties, and the defendant was convicted, and appealed. In reviewing that case we said:
“The evil at which the statute defining larceny by embezzlement is leveled is not confined to instances where the agency involved is of long duration or is broad and comprehensive in scope. If, at the time of the felonious and fraudulent conversion, the accused was an agent for a particular purpose only, and the property appropriated was intrusted to him by virtue of such agency, it is sufficient. It is not the nature and extent of the authority conferred, but the fact of the relationship which constitutes an essential element of the crime. If the note and mortgage were delivered to appellant for collection, there can be no question but that he was an agent within the meaning of the statute.”
So in this case, if the Armstrong certificate for 1,000 shares of stock was intrusted to appellant for sale, he to account for its proceeds to the then owner thereof, as found to be the fact by the jury, then appellant was guilty if he failed or refused to so account for the proceeds after the sale.
It is also claimed that a new trial should have been granted to appellant by reason of bias and prejudice of one juror. The hearsay affidavit of the attorney for
We certainly cannot say that he thereby abused his discretion. The case was submitted to the jury upon fair, concise and lucid instructions, and no exception was taken to such instructions.
We can find no error in the record, and the judgment is affirmed.
Parker, C. J., Main, Hovey, and Mackintosh, JJ., concur.