Graves v. People

• Decision Date: 01 February 1904
• Citation: 32 Colo. 127,75 P. 412
• Parties: GRAVES v. PEOPLE.
• Court: Colorado Supreme Court

75 P. 412

32 Colo. 127

GRAVES v. PEOPLE.

Supreme Court of Colorado

February 1, 1904

Error to District Court, Arapahoe County; Samuel L. Carpenter Judge.

James S. F. Graves was convicted of larceny by embezzlement, and he brings error. Reversed.

Frank I. Willsea, for plaintiff in error.

N. C Miller, Atty. Gen., and I. B. Melville, Asst. Atty. Gen., for the People.

CAMPBELL, J.

Defendant was tried and convicted of embezzling money intrusted to him by another, which by our statute is deemed and called larceny. Sess. Laws 1893, p. 119, c. 68. Upon this review he relies upon three grounds for reversal.

1. In the title larceny, but not embezzlement, is mentioned, while the act itself, in substance, reads that whoever embezzles or fraudulently converts to his own use certain property delivered to him which may be the subject of larceny shall be deemed guilty of larceny, and punished accordingly. The specific objection urged here is that, since embezzlement and larceny are distinct crimes, the title of an act which speaks of larceny is not broad enough to cover a provision therein treating of embezzlement, and, besides, is misleading. Section 21 of article 5 of our Constitution provides that no bill, except the general appropriation bill, shall contain more than one subject, which shall be clearly embraced in its title. The objection is not good. In the body of this act it is declared, in the circumstances therein pointed out, that one who wrongfully embezzles or converts personal property in the absence of a trespass shall be deemed guilty of larceny. It follows that, since the doing of the prohibited thing in the circumstances stated is deemed larceny, the section so providing comes clearly within the title. In Bishop on Statutory Crimes (3d Ed.) § 418, it is stated that in such a case as this the rule of pleading requires the circumstances to be set out, and that the common-law form of indictment for larceny will not support a conviction for the commission of the thing prohibited by the statute. This however, is not authority for the point sought to be made by plaintiff in error.

2. The defendant was agent for the prosecuting witness in making loans of money and taking mortgage securities therefor. It is admitted that he collected a note evidencing one of these loans. The principal issue in the case was whether or not the defendant paid the proceeds to the prosecuting witness, or converted the same to his own use. There was a direct conflict of testimony upon this point, the prosecuting witness swearing that the money had not, and the defendant that it had, been paid to her, and there were certain circumstances in evidence tending to corroborate each of them. Plaintiff in error strenuously insists that the verdict is manifestly against the weight of, and is not supported by, sufficient legal evidence. The mooted questions of fact were peculiarly for the jury to determine. They heard the testimony, saw the witnesses upon the stand, and the general rule, to which there are exceptions, is that the jury's findings will stand. We express no opinion as to this assignment, however, since the judgment must be reversed on another ground.

3. It appears in the bill of exceptions, from an uncontroverted affidavit of the attorney for the defendant, that while the district attorney was making his opening, and again while the assistant district attorney was making the closing, argument to the jury, the presiding judge left the bench and went into the clerk's office adjoining the courtroom, and remained there on the first occasion more than five, and on the second more than ten, minutes; that defendant's counsel, each time desiring to object to certain language and conduct of the district attorney, interrupted the latter and tried to have a record made of his objection, but as the judge was then out of the sight and presence of counsel and the jury and outside of the courtroom, and, as the affidavit states on information and belief, also beyond hearing, counsel was, because of such absence, unable on the first occasion either to obtain a hearing of his objection or to preserve his exceptions. No counter affidavit traversing the facts contained in this affidavit was filed by the district attorney, but statements of the presiding judge in overruling defendant's motion for a new trial throw some light upon the situation. Whether the statements of the presiding judge are, in such circumstances, to be considered as evidence, we need not decide. It has been held that they are competent as evidence only as to such matters as are in their nature better known to himself than they could be to others. Here, with respect to the matters complained of, the knowledge of the judge, at least his opportunity for acquiring it, was no better than that possessed by others present at the time in the courtroom. People v. Blackman (Cal.) 59 P. 573. But for the purpose of this case it may be conceded that every statement made by the presiding judge is true, and may be treated as if contained in an affidavit. He does not deny that he was absent from the courtroom the first time for five, the second time for ten, minutes. He says he thinks he heard everything that took place during the entire argument of the prosecuting officer on both occasions, but admits not only that he was not in the courtroom, and was in the adjoining clerk's office, for the periods of time mentioned, but also that he was not then within the sight or in the presence of counsel or jury. Unquestionably the judge believes that he heard everything that occurred. There is, however, no denial by him that he did not hear the first interruption, or pass upon the objection sought to be interposed by counsel for defendant, which the latter positively swears occurred while the prosecuting officer was speaking. In O'Brien v....