4 Colo. App. 136 | Colo. Ct. App. | 1893
delivered the opinion of the court.
The disposition of two questions out of the many urged by counsel and legitimately presented by the record will serve to confirm the rights of the plaintiff in error, and so construe the statute that the adjudication may serve as a precedent to prosecuting officers in the state.
That section of our criminal code which is cited in the statement first appears in the acts of 1861. It remained unchanged in the compilation known as the Revised Statutes of 1868, and reappears in the General Statutes of 1877 and 1883 in the same identical form. From the original act down to the statutes of 1883 there was always an omission of a
Unless this rule be applied to the present statute, the first
The idea is very strongly supported by the impossibility to insert the word “ or,” orto treat the last clause of the first paragraph as separate and distinct from the first sentence ending with the words “ shall obtain a credit.” Had this been the legislative intention, grammatical construction renders it necessary that the auxiliary verb “shall ” should precede the verb “ defraud,” because wherever there is the disjunctive conjunction, and a statute is enacted for the purpose of providing punishment for crimes which occur in the future, the word “ shall ” is the almost universal and natural auxiliary used in the legislative declaration. Had the auxiliar}^ “shall ” preceded “defraud,” then the necessary and natural purpose of the sentence would be to provide for the punishment of two distinct crimes which might be committed by the obtainment of credit without damage, or the obtainment of credit to be followed by the procurement of some valuable thing. An insignificant alteration in the phraseology, or the omission of a word of this description in the adoption of a statute of another state, or in the revision o£ a statute, does not necessarily imply an intention to alter the construction of the act. It is equally settled that wherever there is an apparent mistake on the face of a statute the character of the error may often be determined by reference to other parts of the enactment, which may always be legitimately referred to in order to determine its legitimate construction. When the section under consideration is examined, it will be observed when we reach that portion of it following the disjunctive conjunction “ or,” which provides for the punishment of a crime which has been committed by the procurement of others to make false report, it is distinctly enacted that the obtainment .of some valuable thing, whereby some person is defrauded is an essential ingredient of the offense.
The resolution of the other inquiry suggested at the outset will determine the rights of the plaintiff in error. The matter is not wholly free from difficulty,.and the case is apparently one of first impression. It is not difficult of solution when the character of the legislation is considered, and the nature of the offense legislated against is carefully kept in view. If the states in their legislation on this subject had only provided for the punishment of the well known and thoroughly understood common law crime, very little difficulty would have been experienced ih enforcing the statutes, and in determining whether or not the offense charged was within the terms of the legislation. In many states, however, as in ours, the law-making bodies have seen fit to create many new offenses which may be committed in divers ways by ingenious assaults on the confidence of the mercantile community. Of this, our quick, sagacious and far-seeing merchants have not been slow to take advantage. Upon these statutes, there has been built up in modern times a practice, which has not always been made the subject of judicial commendation, to bring a large portion of all mercantile transactions apparently within t;he scope of the criminal
We regard the two cases as wholly distinct and separate, and the principle of those cases to be totally inapplicable to the case made by the record. Those decisions proceeded up
The judgment will be accordingly reversed and the cause remanded.
Reversed.