94 Wash. 94 | Wash. | 1916
— -The defendant, Rolette, was charged, by information filed in the superior court for King county, with the crime of grand larceny, in that he, having in his possession, as agent and bailee of Alice Buttler, the sum of $40.85 in money belonging to her, did feloniously withhold and appropriate the same to his own use with intent to deprive her thereof, in violation of the provisions of Rem. Code, § 2601, reading as follows:
“Every person who, with intent to deprive or defraud the owner thereof— . . . (3) Having any property in his possession, custody or control, as bailee, factor, pledgee, servant, attorney, agent, employee, 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*95 entitled thereto; . . . steals such property and shall be guilty of larceny.”
His trial in the superior court resulted in a verdict of guilty. Judgment was rendered thereon sentencing him to a term of not less than two nor more than fifteen years, from which he has appealed to this court.
The only contention here made in appellant’s behalf is that the trial court erred to his prejudice in refusing to give to the jury the following requested instruction:
“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.”
It is argued that, in view of appellant’s claimed good faith and honest belief that he was legally entitled to the money he was charged with appropriating, he was entitled to have this requested instruction given to the jury to the end that the jury might be advised as to the law touching the question of his good faith as provided by Rem. Code, § .2608, which reads:
“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.”
At the time of the alleged commission of the offense, appellant was engaged in what he terms the “business chance brokerage business,” and which he describes as “selling of businesses that different people list with us for sale.” He testified as to the. manner of procuring commission or com
We shall assume, for argument’s sake, that these payments were all made by Mrs. Buttler to appellant and that he thereafter settled with the owners. At the time of thus closing the deal, appellant, seeming to be of the opinion that he was
There was given upon the trial a large amount of testimony tending to show that appellant had misrepresented to Mrs. Buttler the value of the property and the net price the owners were to receive for it, all of which, however, was denied by appellant. There was also considerable evidence pointing to the existence of the relation of principal and agent between appellant and Mrs. Buttler, from which it might well be argued that such relation did exist from the beginning of the negotiations. He testified, however, positively that he was not her agent at any time. While this, of course, was a conclusion to be drawn from the facts, it in any event tended
The argument of the prosecuting attorney deals at considerable length with the facts and circumstances disclosed by the evidence pointing to appellant’s guilt, which argument it seems to us deals more with the question of appellant’s guilt than with the question of his being entitled to have this instruction given to the jury. However, it is sought to draw the conclusion therefrom that the requested instruction has no application to the facts, and hence that its refusal was not prejudicial error. We are, however, not here concerned with the question of appellant’s guilt or innocence. That was for the jury to decide. We are only concerned with the question of whether or not he was entitled, under the theory of his defense, to have the jury instructed as requested. Now it seems to us that to hold that the defendant was not entitled to this requested instruction would be in effect to hold, as a matter of law, that his defense of good faith was wholly unfounded. It may be that, looking at the evidence as a whole, such would be the fair conclusion of fact which the jury might be warranted in drawing, but that is quite a different matter from the court in effect so declaring, as a matter of law, by its refusal to give this instruction. Looking at the evidence as a whole, we cannot escape the conclusion that appellant’s theory of defense, that is, that “the property was appropriated openly and avowedly under a claim of title preferred in good faith,” has sufficient support in the evidence to call for the submission of appellant’s claim in that regard to the jury. It is conceded that the requested instruction fairly states the law as provided in Rem. Code, § 2608, above quoted. It is not argued, and we think it could not be successfully argued, that the law as defined by that section was given to the jury in any of the instructions given by the court. It is easy to see that the
The judgment is reversed, the appellant is granted a new trial and the cause remanded for further proceedings. Mount and Holcomb, JJ., concur.