Clarke v. People
53 Colo. 214
Colo.
1912
Check Treatment
Mr Justice Gabbert

delivered the opinion of the court:

. . Plаintiff in error was charged in one information, in three, counts, with false pretenses, larceny, and сonfidence game. . He was also charged in four informations with the -crime .of confidencе game, based on four .different transactions. All these informations were consolidated for trial. The accused was found guilty upon each, and separate judgments and sentences prоnounced, the sentences running concurrently.

It is urged that the counts in the information containing three could not properly be joined, although they were based upon the same transaction, for the reason that the accused could not be guilty of both false pretenses and larceny. This proposition need not be ‍‌‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌​​​‌​‌​​​‌‌​‌​​‌‌‌‍determined. The sentences are the same, and run cоncurrently, and even though the accused was erroneously convicted on some of the сounts, he has. not been prejudiced, if he was properly and legally convicted on any сount, a question to be considered later. Imboden v. People, 40 Colo. 142.

The several charges of the commission of thе confidence game did not, as originally drawn, use the word “feloniously,” in specifying the offense. This оmission, it is claimed, rendered the informations with respect to the charge of the confidence game fatally defective. During- the progress of the trial the court permitted the prosecution to- amend the information by inserting the word “feloniously.” If, as contended, the absence оf “feloniously” rendered the information defective, and this defect could not be cured by amеndment, then neither of these propositions need be considered, if it appears that defendant was legally convicted of the charge of false pretenses, or larceny.

The sufficiency of the testimony to sustain a conviction under either information or count is challenged. We need only consider ‍‌‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌​​​‌​‌​​​‌‌​‌​​‌‌‌‍the one relating to- the charge of false pretenses. As аpplicable to this case, a false pretense is a false and *216fraudulent represеntation made with knowledge of its falsity, with intent to deceive and defraud, and which is adapted to induсe the person to whom it is made to part with something of valúe. 12 Ency. 804. The pretense must be calculated to deceive according to the ability or capacity of the persоn to whom it is made to detect the falsehood. Ibid 816. In brief, the testimony on the subject of false prеtenses is to the effect that defendant advertised as a seer and clairvoyant; that this advertisement attracted the attention of the prosecuting witness, who called on him, and, on his' reрresentations as to what ‍‌‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌​​​‌​‌​​​‌‌​‌​​‌‌‌‍he could accomplish as an alleged seer and clairvоyant, and in order, as he claimed, to prevent another from securing her money, induced her tо loan, or let him have it, which she did from time to time, relying upon his representations that it was necessary to do> so for her own protection, and that it would be repaid her, with interest. In this way defendant obtained from her about one hundred and seventy-five dollars, only seventy-five cents of which was ever repaid. There can be no question regarding the falsity of the representations madе by the defendant. He certainly knew them to be false, and made them with intent to deceive and defraud the witness, and thereby did deceive and defraud her; consequently, we conclude the testimоny is ample to sustain a conviction for false pretenses.

Error is assigned upon the ruling of the trial court per.mitting testimony of similar transactions with other persons about the same time to be introduced. It was competent to show that defendant had been engaged in practicing ‍‌‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌​​​‌​‌​​​‌‌​‌​​‌‌‌‍like, or similar, cheats, as tending to prove a criminal intent, where, as in this instance, the other transaсtions were so connected in point of time, and so similar, that the same .motive could be imрuted, to them all. — Housh v. The People, 24 Colo. 262; Warford v. The People, 43 Colo. 107. The court expressly limited this character of testimony to the question of intent, and also advised the jury that testimony of other acts which were not similar should by them be excluded. There wаs *217testimony regarding matters which the court, on the objection of the defendant, should have excluded, which, however, in the circumstances of this case, it appears was not prejudicial. The testimony of the prosecuting witness was not disputed, except inferentially, by the defendant, ‍‌‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌​​​‌​‌​​​‌‌​‌​​‌‌‌‍but his vеrsion of the transaction shows that he practiced deception to obtain her monеy, or, in effect corroborates her statement relating to the representations madе by him which induced her to part with her money. Perhaps some of the other transactions detailed were bona fide. Testimony of his character was not competent, but certainly, the defendant could not be prejudiced by proof of honest and legitimate transactions. — State v. Brady, 36 L. R. A. 693.

The judgment of the district court is affirmed.

Judgment affirmed.

Mr. Justice Musser and Mr. Justice Hire concur.