Casadas v. People, 17848
| Decision Date | 01 October 1956 |
| Docket Number | No. 17848,17848 |
| Citation | 134 Colo. 244,304 P.2d 626 |
| Parties | Albert T. CASADAS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Eugene Deikman, Samuel D. Menin, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John B. Barnard, Jr., Asst. Atty. Gen., for defendant in error.
Plaintiff in error, to whom we will herein refer as defendant, together with three other persons was accused of offenses set forth in an information containing six counts, filed in the district court of the City and County of Denver. Two of the counts of the information were withdrawn from the consideration of the jury. The second count was the only one of the four submitted upon which the jury returned a verdict, which verdict was in the following language:
'We, the jury, find the defendant, Albert T. Casadas Guilty of conspiracy to commit fictitious check, as charged in the second count of the Information herein.
Motion for new trial was filed and overruled, and judgment was entered upon the verdict. Defendant, seeking review thereof brings the cause to this Court by writ of error.
Notwithstanding that the fatal defect in the proceedings is not presented or argued by counsel, we deem it our duty to dispose of the case upon the patent insufficiency of the second count of the information to charge an offense with that degree of certainty required by the law; this, coupled with the total failure of the evidence to show a violation of the statute specifically mentioned in the charge, requires reversal. The said count contains, inter alia, the following:
'* * * that on the 27th day of January, A.D. 1955, at the City and County of Denver, State of Colorado, Raymond A. Gonzales and Robert Quintana and Albert T. Casadas and Kenneth L. Wells did then and there unlawfully and feloniously agree, conspire and cooperate with each other * * * to do and to aid in the doing by them * * * an unlawful act, to wit, a felony, against King Soopers, Inc., a corporation, which felony was the crime of Fictitious Check, as defined by Section 7, Article 6, Chapter 40, Colorado Revised Statutes, 1953, * * *.'
The statute, C.R.S.1953, 40-6-7, to which specific reference is made in the count upon which defendant was convicted, has nothing to do with checks. It is captioned 'Clipping or scaling coin--penalty', and reads as follows:
'Every person who, with intent to defraud, shall impair, falsely, clip, scale, lighten or diminish any gold or silver coin, now current, or that shall hereafter be current by law or usage in this state, shall be deemed guilty of forgery, and upon conviction thereof shall be punished by imprisonment in the penitentiary for a term not less than one year nor more than fourteen years.'
No evidence was introduced upon the trial which tended in the least to prove any offense 'as defined by Section 7, Article 6, Chapter 40, Colorado Revised Statutes, 1953.'
At the conclusion of the evidence offered on behalf of the people, counsel for defendant moved the court for a directed verdict of not guilty as to each count and assigned his reasons therefor. In addition thereto he moved to dismiss count No. 2 and directed the attention of the court specifically to the fact that said count identified with particularity 'Section 7, Article 6, Chapter 40, Colorado Revised Statutes, 1953,' and pointed out to the court that there was a variance between the facts shown in evidence and the charge contained in the information. In concluding his motion to dismiss he stated, 'I think the District Attorney is bound by his allegation.' The court ruled as follows:
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...But see Sawyer v. People, 173 Colo. 351, 478 P.2d 672 (1970); Skidmore v. People, 154 Colo. 363, 390 P.2d 944 (1964); Casadas v. People, 134 Colo. 244, 304 P.2d 626 (1956). In fact, the error benefited appellant insofar as he was sentenced for a class 3 felony when the proof established tha......
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...and therefore requires reversal. See Rodriguez , 914 P.2d at 257 ; H.W. , 226 P.3d at 1137.¶73 Our decision in Casadas v. People , 134 Colo. 244, 304 P.2d 626 (1956), which has been on the books for over six decades, is substantially on point. In Casadas , the defendant was charged with the......
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