State v. Polzin

85 P.2d 1057 (1939)

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Nature of the Case

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Facts

D was secretary-treasurer, managing officer, and owner of more than one-third of the capital stock, of Surety Finance Corporation, which was located in Port Angeles and was engaged in the business of lending money in moderate amounts. D was also president of, and a large stockholder in, Clallam Adjustment Corporation, located in the same city and engaged in the business of collecting commercial accounts; D's wife was secretary and managing officer of the collection company. Mamie E. Braseth, the complaining witness in the case, was employed as a telephone operator in Port Angeles and had borrowed money from Surety Finance Corporation upon her personal notes, secured by the pledge of a diamond ring. In November 1937, she owed the finance corporation a balance of ninety dollars upon her last note. She was also indebted, in varying amounts, to a number of creditors who were pressing her for payment. Mrs. Braseth called on D at the office of the finance corporation on November 24, 1937. After some discussion, it was agreed between her and D that the finance corporation would lend her two hundred dollars upon her note, payable in semi-monthly installments and secured by a pledge of the ring. It was further agreed that the proceeds of the loan should be applied, first, to the payment of the ninety dollars then owing to the finance corporation; second, to the payment of the expense of the immediate loan and interest on the note; third, to a cash payment of seven dollars to the borrower; and the balance to partial payments to five of her creditors, according to a schedule outlined by her. At the suggestion of D, it was agreed that it would be advisable that he, rather than she, should attend to the distribution of the money. The note was executed, and seven dollars in cash was immediately paid to Mrs. Braseth. An amount sufficient to pay the ninety dollars owing upon her former note and to satisfy the expense incident to the present loan was reserved by the finance corporation. Partial payments were made to three of the accounts but the other two accounts, totaling $57.50, were handled contrary to her directions. D executed and delivered to Clallam Adjustment Corporation the check of Surety Finance Corporation in the sum of fifty-seven dollars. The check showed upon its face, however, that it was for the two particular accounts against Mrs. Braseth. D called on the two creditors whose accounts were covered by the check and solicited the collection of their accounts against Mrs. Braseth. He did not tell them that he then had the money to pay those accounts, nor did he advise them of Mrs. Braseth's direction that only partial payments were to be made and that there was to be no discount taken thereon. D obtained the two accounts for collection. Nothing was paid to either of the two creditors prior to January 8, 1938. Mrs. Braseth learned from the two creditors that nothing had been paid them. At the same time, she was also advised by them of their arrangement with appellant for the collection of the accounts on a fee basis. D asked about the former arrangement and was assured by D the creditors had been paid. D did not tell her that he collected a 1/3rd fee. D was indicted for petit larceny. The jury found D guilty of petit larceny. From the judgment on the verdict, this appeal was taken.