Cole v. People

• Decision Date: 07 January 1933
• Docket Number: 13174.
• Citation: 18 P.2d 470,92 Colo. 145
• Parties: COLE et al. v. PEOPLE.
• Court: Colorado Supreme Court

18 P.2d 470

92 Colo. 145

COLE et al. v. PEOPLE.

No. 13174.

Supreme Court of Colorado, En Banc.

January 7, 1933

Rehearing Denied Jan. 30, 1933.

Error to District Court, Yuma County; Arlington Taylor, Judge.

Fred H Cole, Sr., Alfred Itten, and M. I. Stebbins were convicted for violating the banking laws, and they bring error.

Affirmed.

John G. Abbott, of Yuma, and Frank L. Hays William P. Kavanagh, and Thomas H. Gibson, all of Denver, for plaintiffs in error.

Clarence L. Ireland, Atty. Gen., and Wallace S. Porth, Asst. Atty Gen., for the People.

BUTLER J.

Fred H Cole, Sr., Alfred Itten, and M. I. Stebbins, called herein the defendants, were found guilty of violating the banking laws, and were sentenced to confinement in the penitentiary. They seek a reversal of the sentence.

Secion 40, p. 127, Session Laws of 1913, being section 2676 of the Compiled Laws, and section 85 of said act, being section 2740, Compiled Laws, as amended by Session Laws of 1927, p. 207, § 17, make it a crime for any officer, director, or employee of a bank to receive, or to assent to the reception of, a deposit of money or other valuable thing by the bank, with knowledge of the fact that the bank is insolvent.

1. Counsel for the defendants say that the act of 1913, supra, is void because it attempts to create a new felony, and that that subject is not mentioned in the title. They rely upon section 21, article 5, of the State Constitution, which requires the subject of an act to be clearly expressed in its title. The act is entitled: 'An Act relating to banks and bankers.' Laws 1913, p. 116. The title is general in its terms. We have said that, 'In the title, particularity is neither necessary nor desirable; generality is commendable.' Driverless Car Co. v. Armstrong, 91 Colo. 334, 14 P.2d 1098, 1099; Edwards v. Denver & R. G. R. Co., 13 Colo. 59, 21 P. 1011. In Lowdermilk v. People, 70 Colo. 459, 202 P. 118, 119, the title of the act in question is 'An act concerning chattel mortgages,' and we held that it covers a provision making a mortgagor guilty of larceny if he should sell or transfer the mortgaged property without complying with certain specified requirements. And see Broadbent v. McFerson, 80 Colo. 264, 250 P. 852. In Italia America Shipping Corporation v. Nelson, 323 Ill. 427, 154 N.E. 198, 199, the act in question was entitled: 'An act in relation to the buying and selling of foreign exchange and the transmission or transfer of money to foreign countries.' Among other things, the act imposed a penalty of fine or imprisonment in the penitentiary, or both. It was contended that the act created a new crime, and that, as that subject was not covered by the title, the penal provision was void under a constitutional provision similar to ours. That contention was not sustained. The court said: 'The constitutional provision in question has been uniformly construed liberally in favor of the validity of enactments. To render a provision in the body of an act void as not embraced in the title, such provision must be incongruous with the title or must have no proper connection with or relation to the title. * * * If all the provisions of an act relate to one subject indicated in the title and are parts of it or incident to it or reasonably connected with it or in some reasonable sense auxiliary to the object in view, then the provision of the Constitution is obeyed. The word 'subject' as used in the Constitution, signifies the basis or principal object of the act. It may contain many objects growing out of and germane to it. Any matter or thing which may reasonably be said to be subservient to the general subject or purpose will be germane and properly included in the law, and the law will not, by reason of such inclusion, be rendered unconstitutional as embracing more than one subject. * * * While the word 'regulate' is not found in the act, a perusal of the act shows that the purpose of the act is to regulate the business of buying and selling foreign exchange and the transmission or transfer of money to foreign countries, and that as such regulatory measure it could not be made effective without the imposition of a penalty for a failure to comply with its provisions.'

The penal provision in the act of 1913, supra, is germane to the general subject expressed in the title, 'An act relating to banks and bankers,' is relevant and appropriate to such title, and therefore is covered by the title.

2. It is contended, also, that the act of 1913 attempts to create a new crime; that such crime can be created only by amendment of the Criminal Code; and that the act does not purport to be an amendment of that Code. To sustain their position, counsel rely upon People v. Clark, 301 Ill. 428, 134 N.E. 95. But, as we have seen, in the later Illinois case of Italia America Shipping Corporation v. Nelson, supra, a crime was created by an act that did not purport to be an amendment of the Criminal Code, and the penal provision in that act was upheld.

We cannot assent to the proposition that a new crime may be created only by amendment of the Criminal Code. We have many cases in this state where statutes creating crimes otherwise than by amendment of the Criminal Code have been upheld. It is not necessary to cite all of them; the following will suffice. Clare v. People, 9 Colo 122, 10 P. 799; Harding v. People, 10 Colo. 387, 15 P. 727; In re Pratt, 19 Colo. 138, 34 P. 680; Cardillo v. People, 26 Colo. 355, 58 P. 678; Gothard v. People, 32 Colo. 11, 74 P. 890; Smith v. People, 32 Colo. 251, 75 P. 914; Trozzo v. People, 51 Colo. 323, 117 P. 150; Cavanaugh v. People, 61 Colo. 292, 157 P. 200; Pearman v. People, 64 Colo. 26, 170 P. 192; Martin v. People, 69 Colo. 60, 168 P. 1171; Roark v. People, 79 Colo. 181, 244 P. 909; Johnson v. People, 79 Colo. 439, 246 P. 202; Lowdermilk v. People, 70 Colo. 459, 202 P. 118. While the specific objection made here was not passed upon in those cases, the penal provisions of the acts there in...