Elstun v. People

• Decision Date: 10 April 1939
• Docket Number: 14334.
• Citation: 104 Colo. 302,91 P.2d 487
• Parties: ELSTUN v. PEOPLE.
• Court: Colorado Supreme Court

91 P.2d 487

104 Colo. 302

ELSTUN v. PEOPLE.

No. 14334.

Supreme Court of Colorado, En Banc.

April 10, 1939

Rehearing Denied June 12, 1939.

Error to District Court City and County of Denver; John B O'Rourke, Judge.

George S. Elstun was convicted for conspring to commit false pretenses, and he brings error.

Affirmed.

John T Adams, and James T. Burke, both of Denver, for plaintiff in error.

Byron G. Rogers, Atty. Gen., and Reid Williams Asst. Atty. Gen., for the People.

OTTO BOCK, Justice.

This case was tried jointly with Grandbouche v. People Colo., 89 P.2d 577, and is Before us on the record filed in that case. The assignment of errors are substantially the same as in the Grandbouche case, with two exceptions, and our holdings therein need not be repeated here, and there is no occasion for again reciting the facts.

Elstun was found guilty on only the second count--conspiring to commit false pretenses. He was found not guilty on the fourth and fifth counts, which charged conspiracy to commit a confidence game and cheating and swindling.

The guilt of Elstun on the second count is evident. While he was not in control of Collateral Bankers, Inc., he was its president and daily participated in the dealings of the company, commencing in January, 1935, until its business closed, and had full knowledge of its activities. He signed all of the stock certificates submitted in evidence and countersigned the checks of the company; his duties involving also looking after its short-time loan business, and therefore he knew what was, and what was not, being accomplished in that department. Conversations between him and his codefendant Hewitt, involving transactions with the company, are indicated in the record. He opened all mail whenever Grandbouche was absent; had full knowledge of the financial status of the company at all times, and was familiar with all the circumstances and dividend manipulations which play such an important part in this case. His participation in committing the offense of which he was found guilty was not in the same degree as Grandbouche, and he did not participate to any great extent in the funds and securities procured. The trial court, in imposing sentence of not less than two and one-half years and not more than five years, gave proper consideration to that difference. There was ample evidence from which the jury could properly find Elstun guilty of the offense charged in the second count of the information.

Two propositions not involved in the assignment of errors in the Grandbouche case require our consideration. First, assignment No. 21, which is identical with paragraph 11 of the motion for a new trial, and reads as follows: '21. The court erred in not permitting this defendant's attorney to see the instructions Before the same were given to the jury and directing him to make his objections after the arguments were made, thereby depriving this defendant of an opportunity to tender instructions which were not covered by the instructions already given and further in agreeing to give an instruction covering circumstantial evidence and later withdrawing the same without knowledge or consent or notice to this defendant or his attorney. Had counsel known that said instruction was to be withdrawn, the same would have been tendered and shown by the record to have been tendered by the defendant.'

Second, assignment No. 22, reading: '22. The court erred in giving multiple instructions on the selfsame point which could not do otherwise than confuse the jury.' Primarily involved in these assignments is our Rule 7, which says: 'Counsel shall present to the trial court, at or prior to the close of the evidence, such instructions as they may desire. The court shall afford respective counsel a reasonable time and opportunity to examine proposed instructions, whether requested, or to be given by the court of its own motion, and to prepare and present specific objections thereto Before such instructions are given to the jury. On motion for new trial, or on review by the Supreme Court, only the grounds so specified shall be considered.' (Italics ours)

The record shows that the objections to instructions were made after the jury had returned its verdict. Counsel for the people and the defense submitted to the court certain instructions with the request that they be given to the jury in their respective behalfs, and the court, after examining them and hearing and considering the arguments of counsel for and against the giving thereof, submitted to counsel for the respective parties the written instructions which it proposed to give as the instructions in the case, and heard and considered the arguments and suggestions of respective counsel concerning the proposed instructions. The record discloses that approximately four hours were consumed in arguments on these instructions. The trial court granted counsel leave to dictate for the record, after the close of arguments to the jury and after the jury had retired to consider its verdict, their objections and exceptions as to instructions given to the jury, and their exceptions to the refusal of the court to give to the jury the instructions asked in behalf of the respective parties. The record further discloses that after the instructions were given and the jury had retired, counsel for Elstun called the court's attention to the matters raised in assignment 22. No objections were made or exceptions noted. After the verdict was returned specific objections were made to a number of instructions. Thereafter, immediately Before argument on the motion for a new trial, after the court had read the 11th ground of said motion (which is identical with assignment No. 22), it stated, among other things: 'I do not think the ground of the motion is in substantial conformity with the facts of the case. * * * As the court recalls it, the matter of presenting the objections to the instructions, they were to be considered as given at the time the instructions were considered in chambers. Counsel were given the opportunity to see all of those instructions. * * * The matter of the instructions on circumstantial evidence was considered and discussed. * * * The instruction on circumstantial evidence that was finally given was in conformity with one particular decision of our Supreme Court. * * * The court did not at any time undertake to prevent counsel from saving the record by making such objections as might be made. * * * The court understood, and I think counsel understood, that the objections to the instructions should be considered as being taken at that time, but in order to give counsel ample opportunity to make full and complete objections to the instructions, they were permitted to do so after the arguments in the case. * * * As counsel know, during the time the instructions are being considered, or tendered, or offered, or being given by the court, there are many questions that come up, and unless counsel have on opportunity to point out the particular weakness of the instructions given, the particular failure of the instruction to state the law, that ordinarily the objection is not considered good by the Supreme Court; therefore, where you make general objections to the instructions and call particular points to the court's attention and they are considered, it is always considered, when those objections are made afterwards they will go in the record. * * * I do think the instruction given on circumstantial evidence, considered in connection with the other instructions of the case, fully covered the law, it probably did not go into detail to the extent that the instruction that the court considered giving, and the instruction that was considered, but it was not tendered by counsel.'

These remarks of the court were made immediately prior to the argument, during which the following colloquy took place between the court and counsel:

'The Court: I understand, on that eleventh ground of the motion, that that is not being presented by the defendant, in the Elstun case, now.

'Mr. Gertz: I did not know he had withdrawn it.

'Mr. Burke: I am not arguing it at all.'

This would indicate that counsel for Elstun, in his argument on the motion for a new trial, waived assignment 21. Be that as it may, it is clear that Rule 7 of [91 P.2d 490] this court was disregarded, in that specific objections to the instructions were not made Before such instructions were given to the jury. We have on numerous occasions stressed the importance of observing this rule. We refer to some of the cases in point.

In Blanchard v. People, 74 Colo. 431, 432, 222 P. 649, the defendant complained of the instructions of the court, but no objections were made to them when given, in compliance with Rule 7. We there said:

'Counsel, having failed to make specific objections to the instructions Before they were read to the jury by the trial court, is precluded, under the rule, from asking this court to review the instructions, except only upon the grounds so specified in the court below. In this state of

...