ROGERS v. THE PEOPLE
No. 14,528
Supreme Court of Colorado
July 3, 1939
September 11, 1939
94 P.2d 594
MR. BYRON G. ROGERS, Attorney General, MR. REID WILLIAMS, Assistant, for the people.
En Banc.
MR. JUSTICE BURKE delivered the opinion of the court.
PLAINTIFF in error, a county commissioner, hereinafter referred to as defendant, or Rogers, was indicted for the illegal use of public funds, convicted and sentenced to the penitentiary for a term of six to ten years. To review that judgment he prosecutes this writ and asks that it be made a supersedeas. We elected to finally dispose of the cause on the application. It has accordingly been fully briefed and orally argued.
The statute under which the indictment was returned reads: “If any officer appointed or elected by virtue of the constitution of this state, or any law thereof, as an officer, agent or servant of an incorporated city, town, municipal township, school district, or county, or other
The count of the indictment under which defendant was convicted reads: “That I. B. Rogers, late of the county of Las Animas and state of Colorado, then and there being a duly elected officer of said Las Animas County, to-wit, a duly elected, quаlified and acting county commissioner in and for said Las Animas county, which said county is a quasi public corporation duly organized, existing and doing business under and by virtue of the laws of the state of Colorado at and within the said county of Las Animas did on or about the 25th day of November, 1936, knowingly, willfully, unlawfully, corruptly, feloniously, falsely, fraudulently and designedly use, secrete and convert to his own personal use the sum of $200.00 lawful money of the United States of America and being a portion of the public funds or moneys of said Las Animas county, in this, to-wit:
“That on or about the 25th day of November, 1936, Chas. B. Gerardi presented to said Las Animas county a certain claim, account and voucher for payment by said Las Animas county, which said account, claim and voucher was presented to said Las Animas county as a just and true account of the indebtedness of said county to said Chas. B. Gerardi for one steam boiler, radiators and fittings complete, to be delivered to Las Animas county; that said I. B. Rogers as such county commissioner aforesaid, allowed and approved said claim and
On the trial ample evidence was produced of the following facts, which were presumably found by the jury: The county needed a heating plant. One Gerardi owned such. It was second hand and he offered it through Rogers for $1000. The latter inquired if it would stand $1200. Gerardi replied, in substance, that it would stand whatever defendant said. They thereupon agreed that it should be sold to the county for the fictitious price of $1200 of which Rogers was to have $200. Rogers caused a voucher to be drawn and presented for that amount, and, acting for the board in the matter, he allowed, or voted for the allowance of, the claim, and signed the warrant. Gerardi cashed it and paid Rogers the $200. It was the practice of the board to parcel out certain of its duties among its members, particularly assigning to each the necessary purchases for his district. Rarely were debts thus contracted turned down by the board. Thus Rogers represented the board in this purchase. From a cursory examination of this record it would therefore appear to present a pretty clear case of guilt and lawful conviction. But by his assignments Rogers says, in substance: The indictment under which I was tried was returned by an
1. The grand jury was summoned on open venire. Defendant contends that under the circumstances it could only be drawn from thе box. The statute provides that “at least thirty days prior to the term” the clerk shall draw from the box “a sufficient number of grand and petit jurors for the next term.”
2. Defendant, in his motion to quash, which was overruled, says he was “required by authority of the grand jury to appear before it” and “was thereby compelled to be a witness involuntarily against himself.” It will be observed that the allegation is so adroitly worded as to be a mere statement of defendant‘s conclusions. What testimony was called for or given is not indicated. No fact is stated from which we may determine that it was “by authority,” or that he was “compelled,” or that his testimony was “against himself.” On the hearing of the motion it was admitted that when defendant was before the grand jury the proper warning was given him. The district attorney then asked permission to show “that it was at defendant‘s request he appeared before the grand jury.” To this offer his counsel replied, “I will certainly object to that. * * * It
3. A motion for change of judge was denied. If this was error it was cured when the trial judge thereafter disqualified himself and called in another.
4. Defendant‘s claims that he was prosecuted under the wrong statute, was guilty under some other, if at all, and that there was a variance between charge and proof, we consider together. Let it be first observed
This statute is about as remote from a literary masterpiece as any known to us, yet its purpose and intent are not particularly obscure. Deleting all portions of even questionable application to this defendant and his offense it reads: “If any оfficer * * * of [a] county * * * shall convert to his own use in any way whatever * * * or shall make way with * * * any portion of the public funds * * * over which he may have the supervision, care or control, by virtue of his office * * * or under color or pretense thereof, every such officer * * * shall, upon conviction be punished by imprisonment not less than five (5) years.” It is said that defendant was not the custodian of the money in question and that he had no exclusive control over it. The statute does not so require. It is said that it was Gerardi‘s money and defendant got it from him. But one doesn‘t get title to property by theft or by criminal conspiracy, or fraud equivalent thereto. This money belonged to Las Animas county. In an indirect way defendant obtained it and converted it to his own use. Under the law he had joint supervision over it. Under the practice of his board probably complete supervision. This supervision, care or control was by virtue of his office. If not strictly so it was at least under color or pretense thereof. That the scheme by which he possessed himself of it involved diverting it to his own pocket by the way of the poсket of Gerardi, his agent, coconspirator, or accomplice, avails him nothing. If under color of his office he got it out of the public treasury and sent it around the world through
5. Some ten assignments are based upon erroneous admissions of evidence of other offenses. This consisted principally of county warrants, shown to be in part fraudulent, used for the same purpose as the warrant in question, and to which Rogers bore substantially the same relation. This evidence was аdmissible under the familiar rule applicable to proof of intent, plan or design. Bruno v. People, 67 Colo. 146, 186 Pac. 718. It should be borne in mind that here defendant claimed, and his counsel vehemently argues, that this $200 was a mere innocent “overcharge,” with no taint of criminality. It was therefore proper to peep into other similar transactions to test that claim. In the Bruno case, supra, defendant was convicted of importing intoxicating liquor. It was consigned and delivered to him as “salad oil.” He claimed it was intended for another firm and had been ordered by his brother. The state, to rebut this by “similar transаctions” offered certain “salad oil” boxes received by him at the station and found at his home. They were, however, empty. We held that, assuming they had been filled as the one in question, they were admissible under the rule; assuming they had not their admission was without prejudice. Here the warrants objected to were not empty, but were shown to be filled with the
6. On cross examination the witness Gerardi was asked if he had once attempted to overcharge the Elks club in a transaction which had nothing to do with the questions here in issue. The interrogatory was inexcusable. The district attorney objected to it, insisted that this and similar ones were propounded for the purpose of prejudice, and asked a ruling accordingly. On its face this carries that impression. In sustaining the objection the judge said: “It is immaterial here what crooked deals this witness may have had with others * * * I do not care how many crooked deals he and the defendant here or others, may have had, so long as it does not relate to this рarticular transaction.” The objection is trivial. The words “and the defendant here” were doubtless ill-advised, but the remark was casual, was not so couched as to especially reflect upon defendant, was inspired by the attempt of defendant‘s own counsel to inject prejudicial matter into the record, and in fact reflected more strongly on the state‘s principal witness than on defendant. Either side could complain of it with equal reason. If error there was no prejudice.
7. The only serious objections raised as to instructiоns given and refused, and evidence admitted and excluded, are so related to questions hereinbefore disposed of that they deserve no separate examination. Other minor questions are, for the same reason, unnoticed, and much argument clearly outside the record, and numerous conclusions unsupported thereby, have necessarily received the same treatment.
Finding no reversible error in this record the judgment is affirmed.
MR. JUSTICE FRANCIS E. BOUCK not participating.
MR. CHIEF JUSTICE HILLIARD dissents.
MR. JUSTICE BOCK concurs in the conclusion.
Although I am not satisfied that other points urged by plaintiff in error have been rightly resolved, I comment only upon his contentions: (1) That section 262, chapter 48, ‘35 C. S. A., under which the prosecution proceeded, is without application to county commissioners or to their acts in relation to the discharge of their duties; and, (2) that a remark of the court during the trial was materially prejudicial. The statute and indictment are quoted in the opening of the court opinion.
1. County commissioners, three for each county, are constitutional officers.
The statute in question is in form similar to corresponding legislation of many states. In no jurisdiction, as my study convinces, has it been held that the act applies to auditing officers, or to any official not having the “actual corporeal possession, control or custody of the thing sought to be transferred or disbursed.” In re Huston, 27 Idaho 231, 147 Pac. 1064. The Idaho court cites and reviews many decisions from other jurisdictions, all holding to the effect that the act is “particularly pointed at treasurers-state, county, township, city-and other officers whose duties are similar, and not at auditors.” State v. Newton, 26 Ohio St. 265. To bring an official within the purview of the statute, it must appear that the money in question came into his possession pursuant to some law, and by virtue of his office. State v. Newton, supra. The Ohio decision points out the whys and wherefores of the statute, and how it applies exclusively to treasurers or other immediate custodians of public funds. In State v. Hall, 126 Mo. 585, 29 S. W. 582, the Supreme Court of Missouri discussed an indictment based on a like statute, and in which it was charged that a “city marshal, and, as such, ex officiо collector of the city of Odessa, * * * then and there * * * intrusted with and having the care, custody and control * * * of the said public moneys * * *, by him received and taken into his possession and custody by virtue of his said office for safekeeping * * *, did then and there unlawfully, fraudulently and feloniously embezzle, make away with, secrete and convert to his own use,” etc. Determining that defendant there was not authorized to have “possession or control of the city moneys as marshal and ex officio collector,” the court held that the indictment was propеrly quashed. See, also, State v. Bolin, 101 Mo. 209. In Moore v. State, 53 Neb. 831, 74 N. W. 319, defendant, state auditor, was indicted under a similar statute, and charged with having received and made away with a sum in excess of twenty thousand dollars which he had assumed to collect by virtue of his office. He pleaded guilty, “and then moved in arrest of judgment on the ground that the information charged no crime.” The trial court‘s adverse resolution on the motion was reversed by the Nebraska Supreme Court, on the ground that the auditor did not become possessed of the funds by virtue of his office pursuant to law. “To hold that the auditor,” the сourt said, “is a person charged with the collection, receipt, safekeeping, transfer, or disbursement of the public money, when the law expressly forbids him to receive it or handle it, would certainly go beyond the plain import of the words of the statute, and create a crime by construction in the plainest violation of the law.” This case, and those from Idaho and Ohio already mentioned, treat of the philosophy of the statute in question at length, give lexicographic defi-
Considering the genesis of the legislation and the unanimity of decision on the point, I cannot think the statute on which the prosecution places reliance is applicable to the charge against plaintiff in error. The intent of the enactment is clear, the wording unambiguous, and, as I believe, its sole purpose was to simplify prosecutions of those charged with the misuse of funds lawfully coming into their manual possession. “Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.” Chief Justice Marshall, speaking for the court, in United States v. Wiltberger, 4 U. S. 574 (5 Wheat. 76), 18-21 L. Ed. 37. “Criminal statutes are, to adopt a word very happily used by Mr. Bishop, inelastic, and cannot by construction be made to embrace cases plainly without the letter though within the reason and policy of the law.” State v. Lovell, 23 Iowa 304. The case of Wright v. People, 104 Colo. 335, 91 P. (2d) 499 (decided since the trial of this case), discounted in the court opinion here, was based upon the section of the statute involved in this prosecution. For the purpose of the decision there (opinion by Mr. Justice
It is significant, I think, that the only case cited in the court‘s discussion of the point is State v. Krug, 12 Wash. 288, 41 Pac. 126. The prosecution there was of a city treasurer-custodian of the city‘s funds, and a typical presentation within the very letter of the statute of Washington, and of ours. How that case could be thought to be pertinent in a prosecution of a county commissioner, member of an auditing body, powerless to act alone, and who by no stretch of interpretation of any statute is authorized to possess public funds “by virtue of his office and pursuant to law” is beyond my comprehension. In my opinion, the motion to quash, timely and adequately interposed by plaintiff in error, should have been granted. The point was urged as well at other approрriate occasions in the course of the trial, and should have received favorable consideration by the court. I fear the trial judge regarded the case as one of “considerable irritation“-so designated by Marshall-but he neglected to heed Marshall‘s admonition to give pause lest he err.
2. Contemplating the importance the jury likely attached to the witness, Gerardi, sufficiently identified in the court opinion, I am not sure counsel for plaintiff in error was not entitled to propound the question set forth by the court here. It went to thе credibility of the witness, and that is a fruitful source of inquiry on cross examination in a criminal prosecution; but assuming the question went somewhat afield, its propounding did not justify the outburst which the record shows the trial judge indulged in the presence of the jury. If, on objection of the district attorney, the judge thought the question an improper one, determination of which was well within his province, he had only to say, the objection is sustained.