Cole v. Van Horn

• Decision Date: 16 November 1933
• Docket Number: No. 908,920.,908
• Citation: Cole v. Van Horn, 67 F.2d 735 (10th Cir. 1933)
• Parties: COLE v. VAN HORN, Sheriff. STEBBINS v. SAME.
• Court: U.S. Court of Appeals — Tenth Circuit

67 F.2d 735 (1933)

COLE v. VAN HORN, Sheriff.^*

STEBBINS v. SAME.

Nos. 908, 920.

Circuit Court of Appeals, Tenth Circuit.

November 16, 1933.

Frank L. Hays and Thomas H. Gibson, both of Denver, Colo. (Wm. P. Cavanaugh and John G. Abbott, of Yuma, Colo., on the brief), for appellants.

Roy T. Johnson, of Sterling, Colo., for appellee.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

An information was filed in the District Court of Yuma county, Colo., charging appellants and others with a criminal offense, the material part thereof being in the following language:

"That Fred H. Cole, Sr., Alfred Itten, H. E. Woolsey, M. I. Stebbins and M. M. Dickson and each of them, late of the County of Yuma and State of Colorado, on or about the 20th day of October in the year of our Lord one thousand nine hundred and thirty-one at and within the County and State aforesaid being then and there officers and directors of The Union State Bank of Yuma, Colorado, a bank duly incorporated, organized and existing under and by virtue of the laws of the State of Colorado and carrying on a general banking business in the Town of Yuma in the County of Yuma and State of Colorado, did then and there fraudulently, knowingly and feloniously receive and assent to the reception of a certain deposit of money, to-wit, the sum of $21.79 in money, of the value of $21.79 and a certain deposit in bank checks, to-wit:" (A description of the several checks enumerated is omitted here.) "The said The Union State Bank of Yuma, Colorado, a banking corporation, being then and there insolvent and that they, the said Fred H. Cole, Sr., Alfred Itten, H. E. Woolsey, M. I. Stebbins, M. M. Dickson, and each of them, at the time and before the reception of the deposit had full knowledge of the fact that the said The Union State Bank of Yuma, Colorado, a banking corporation, was insolvent; and so the said Fred H. Cole, Sr., Alfred Itten, H. E. Woolsey, M. I. Stebbins and M. M. Dickson and each of them in the manner and form aforesaid then and there did wilfully, unlawfully and feloniously steal, take and carry away the money and other valuable things of the said The Equity Cooperative Oil Company, a corporation, of the total value of $59.64 as aforesaid, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the same People of the State of Colorado."

Following their conviction by a jury, appellant Cole was sentenced to a term of not less than five nor more than seven years in the state penitentiary and appellant Stebbins received a like sentence of not less than three nor more than five years. They appealed the case to the Supreme Court of Colorado and it was affirmed. Cole v. People, 92 Colo. 145, 18 P.(2d) 470, 471. A mittimus thereupon issued and respondent took appellants into his custody for the purpose of conveying them to the penitentiary to serve the respective sentences. They then instituted this proceeding in habeas corpus to obtain their release. The trial court denied the writ.

Appellants urge that they are unlawfully restrained in violation of their constitutional rights because they were tried, convicted, and sentenced and the mittimus issued for the offense of receiving or assenting to the reception of deposits of money and other things of value in the Union State Bank of Yuma, knowing such bank to be insolvent, in violation of sections 40 and 85 of c. 44, pp. 116, 127, 137, Session Laws of 1913 (section 2676 and section 2740, as amended by Laws 1927, p. 207, § 17, respectively, Compiled Laws of Colorado), while the information failed to charge them with that offense; that instead, it charged them with another crime, that of larceny under an entirely different statute.

They contended in the Supreme Court of Colorado that the information was too uncertain, inconsistent, and repugnant to inform them of the nature of the accusation, because it charged two separate and distinct crimes, the first being that of receiving a deposit with knowledge of the bank's insolvency in violation of the Act of 1913, and the second being that of larceny, a crime not mentioned in that act. The court held that the information was sufficient to charge an offense under the statute of 1913. It said:

"The information follows the one involved in Robertson v. People, 20 Colo. 279, 38 P. 326. That case was decided under Session Laws of 1885, page 50, which provided that an officer, etc., of a bank who should receive, etc., a deposit, knowing the bank to be insolvent, should be deemed guilty of larceny. In the act of 1913, supra, such conduct is made a substantive crime; there is no reference to larceny. The information charges that the defendants, being officers, etc., of the Union State Bank of Yuma, knowing the bank to be insolvent, did feloniously, etc., receive, and assent to the reception of, a certain deposit of money and bank...