
    [No. 12981.
    Department Two.
    February 2, 1916.]
    The State of Washington, Respondent, v. E. H. Lynn, Appellant.
      
    
    False Pretenses — Elements of Offense — Misrepresenting Existing Fact. To constitute grand larceny committed by color or aid of any fraudulent or false representation, under Rem. & Bal. Code, § 2601, tbe representation must be of an existing or past fact.
    Same — False Representations — Existing Facts — Evidence—Sufficiency. A charge of grand larceny by inducing tbe prosecuting witnesses to invest in a corporation to be organized to do a grocery business, by falsely representing that defendant “bad $4,000 in cash at tbe time” received from tbe sale of two stores in tbe city of S. wbicb be would invest in tbe business, is not sustained where tbe proof merely went to show that defendant did not put more than $225 worth of groceries into tbe business.
    Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered March 17, 1915, upon a trial and conviction of grand larceny.
    Reversed.
    
      Shepard, Burkheimer & Burkheimer, for appellant.
    
      O. T. Webb, Percy Gardiner, and E. C. Dailey, for respondent.
    
      
       Reported in 154 Pac. 798.
    
   Main, J.

The defendant in this case is charged with the crime of grand larceny. Whether by the information it is intended, under Rem. & Bal. Code, § 2601 (P. C. 135 § 695), to charge larceny by “color or aid of any fraudulent or false representation,” or larceny by embezzlement, or both, does not clearly appear. From a reading of the state’s testimony and the remarks of the trial judge, it would appear that, up to the time when the state rested its case, there was an attempt to prove larceny by embezzlement. When the evidence in chief for the state was in, the defendant moved for a directed verdict, claiming that the evidence was insufficient to establish any crime, and that the venue was improperly laid in Snohomish county. In denying this motion, the trial court required the state to elect whether it would have the cause go to the jury under the claim that the crime was committed by false and fraudulent representations or by embezzlement. The state concluded to interpret the information as charging the crime of larceny by false and fraudulent representations. Thereupon the evidence upon behalf of the defendant was introduced and the cause was submitted to the jury. A verdict of guilty was returned. Motion for a new trial being made and overruled, the defendant appeals from the sentence and judgment.

The facts, briefly stated, are: On June 18, 1914, and for some time prior thereto, the prosecuting witness, one J. B. Waggett, was operating an automobile truck between Seattle, in King county, and Cathcart, in Snohomish county, Washington, with his residence in Seattle. On that day the appellant called upon Waggett for the purpose of engaging him to haul certain store fixtures from Seattle to Cathcart. Prior to. this date, the parties had no acquaintance. In the course of the conversation relative to the hauling of the store fixtures, Lynn told Waggett that he was going to organize a corporation to conduct a grocery business at Cathcart in a certain store building there situated, which he had previously leased, and that the store fixtures which he was desiring to move were to be used in such business. Waggett then told the appellant that he, Waggett, also contemplated starting a store at the same place. The question of Waggett taking stock and becoming interested in the corporation to be organized by the appellant was discussed at that time by the parties. Waggett claims, and he so testified, that the appellant told him that he had sold two stores in Seattle for $4,000, and that if Waggett would invest $800 or $1,000, the appellant would invest $4,000 in cash in the business enterprise. Waggett gave a somewhat different version, which it is unnecessary here to detail.

On June 20, Waggett hauled the fixtures from Seattle to Cathcart. About a week later, Waggett went to Cathcart and began constructing partitions in the rear end of the store building which was to be occupied by the business, preparatory to moving his family therein, which he did on July 8, following.

Articles of incorporation for the Cathcart Grocery & Mercantile Company were duly prepared and filed, a certificate of incorporation being issued on July 14, 1914. Thereafter, and on July 17, the appellant and wife turned over to the corporation in payment for stock subscribed for by them, real and personal property listed at the value of $4,352.31. On July 20, 1914, Waggett, in Seattle, King county, paid to the corporation $300 in cash, and turned over a note of the face value of $500. Thereupon sixteen shares of the capital stock of the corporation of the par value of $50 per share were issued and delivered to him.

After the store was opened, both Waggett and the appellant worked therein. The business was conducted some months, when it became insolvent and a receiver was appointed. After the appointment of the receiver, Waggett filed a verified claim with the receiver in which he stated that the $300 was a loan to the corporation. Upon the trial, Waggett testified that there was not placed in the store more than $225 worth of merchandise.

The controlling question in this case is whether the evidence shows that the appellant was guilty of grand larceny committed by color or aid of any fraudulent or false representation. It is claimed that the false representation consisted in the appellant’s statement that he had $4,000 in cash as the result of the sale of two stores, when in fact he did not have that amount, or any sum in excess of $100.

A false and fraudulent representation, under the statute, in order to constitute a crime, must be of an existing or past fact. 2 Bishop, New Criminal Law, § 415; 1 McClain, Criminal Law, § 678. The falsity of a fact, past or present, being one of the elements of the crime, it was incumbent on the state to prove that the appellant did not in fact have $4,000 in cash at the time it is claimed he so represented. State v. Hurley, 58 Kan. 668, 50 Pac. 887.

The articles of incorporation of the Cathcart Grocery & Mercantile Company state its objects, among other things, to be to conduct a general mercantile business for the purpose of purchasing and selling of all kinds of groceries and merchandise, and to acquire, by purchase or otherwise, real and personal property of every kind and description. A number of other purposes are also set out, such as usually appear in articles of incorporation.

The evidence relied upon to show the falsity of the statement as to the $4,000 is that of the complaining witness that not more than $££5 worth of groceries were put into the business. This, obviously, does not disprove the statement attributed to the appellant that he had sold two stores in Seattle and had received therefrom $4,000 in cash which he expected to put into the business. For aught that appears in the evidence, he may have had the $4,000 as it is claimed he said he had. The evidence is doubtless sufficient to cast suspicion upon the truthfulness of his alleged claim that he had $4,000 in cash. But if he is guilty of a crime, all the elements of the crime must be established by competent evidence, and the conviction cannot be sustained unless the evidence was such that the jury had a right to find that all the elements of the crime were proven beyond a reasonable doubt.

It may well be doubted whether the venue was properly laid in Snohomish county, construing the information as charging the crime as being committed by color or aid of false and fraudulent representations. But it is not necessary to decide this question, since the other question discussed is decisive of the action.

The judgment will be reversed, and the cause remanded with directions to dismiss.

Morris, C. J., Bausman, Holcomb, and Parker, JJ., concur.  