Helser v. People, 13789.

• Decision Date: 15 March 1937
• Docket Number: 13789.
• Parties: HELSER et al. v. PEOPLE.
• Court: Colorado Supreme Court

68 P.2d 543

100 Colo. 371

HELSER et al. v. PEOPLE.

No. 13789.

Supreme Court of Colorado, En Banc.

March 15, 1937

Rehearing Denied June 1, 1937.

Error to District Court, City and County of Denver; Otto Bock Judge.

C. W Helser and N. J. O'Hanlon were convicted of conspiracy to commit larceny by bailee, C. W. Helser was convicted of conspiracy to commit embezzlement, and they bring error.

Affirmed.

HOLLAND and HILLIARD, JJ., dissenting.

YOUNG J., dissenting on rehearing.

Alter & Upton and Sidney P. Godsman, all of Denver, for plaintiffs in error.

Byron G. Rogers, Atty. Gen., and Walter F. Scherer, Asst. Atty. Gen. (A. G. Gertz, of Denver, of counsel), for the People.

KNOUS Justice.

The indictment upon which this case is based was returned against the plaintiffs in error and others by a grand jury of the second judicial district. The indictment contained three counts intended respectively to charge the defendants with conspiracies to commit: (1) Grand larceny; (2) larceny by bailee; and (3) embezzlement. Upon trial the plaintiffs in error Helser and O'Hanlon were found not guilty on the first count; were both found guilty on the second count; and Helser guilty and O'Hanlon not guilty on the third count. Beginning with the motion to quash, and continuing through the proceedings on error in this court, counsel for these plaintiffs in error, upon every possible occasion by appropriate procedure, have zealously and consistently challenged the sufficiency of the second and third counts of the indictment and seemingly principally rely on these points in presenting their case here. Omitting the formal portions, these counts are as follows:

'Second Count. * * * That on the eleventh day of May, in the year of our Lord 1934, The American Life Insurance Company was then and there a corporation doing a life insurance business at and in the City and County of Denver and State aforesaid, and it was then and there the owner of certain moneys of the value of One Hundred Thousand Dollars;

'And that C. W. Helser, N. J. O'Hanlon, A. R. Seebass, also known as A. R. Seebass, Jr., Forrest A. Heath, and E. W. Larson, on the said eleventh day of May, in the year of our Lord 1934, at and in the City and County of Denver, in the State of Colorado, did unlawfully, maliciously and feloniously agree, conspire, cooperate and confederate to and with each other that one or more of said persons be elected and become officers and agents, towit: President, Vice President, Secretary, Treasurer and Directors of said The American Life Insurance Company, a corporation, and being such officers and agents of said life insurance company certain moneys of the value of One Hundred Thousand Dollars did unlawfully, feloniously and fraudulently conspire and cooperate to convert to their own use at and in the said City and County of Denver and State of Colorado, and so in manner and form aforesaid the said moneys of the value of One Hundred Thousand Dollars, of the moneys and personal property of said The American Life Insurance Company, a corporation, feloniously to steal, take and carry away; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado.'

'Third Count. * * * That on the eleventh day of May in the year of our Lord 1934, The American Life Insurance Company was then and there a corporation doing an insurance business at and in the City and County of Denver and State of Colorado;

'And that C. W. Helser, N. J. O'Hanlon, A. R. Seebass, also known as A. R. Seebass, Jr., Forrest A. Heath and E. W. Larson, on the said eleventh day of May, in the year of our Lord 1934, at and in said City and County of Denver and State of Colorado aforesaid, unlawfully, maliciously and feloniously did agree, conspire and cooperate that some one or more of their number be elected and become officers and agents to-wit: President, Vice-President, Secretary and Treasurer of said The American Life Insurance Company, a corporation, and being such officers and agents of said The American Life Insurance Company, a corporation, One Hundred Thousand Dollars in money, of the value of One Hundred Thousand Dollars, of the moneys and personal property belonging to and in the possession of said The American Life Insurance Company, a corporation, unlawfully, feloniously and fraudulently to embezzle and convert to their own use; and so in manner and form aforesaid the said moneys and personal property, the said One Hundred Thousand Dollars in money, of the value of One Hundred Thousand Dollars, of the moneys and personal property of the said The American Life Insurance Company, a corporation, feloniously to embezzle, steal, take and carry away; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado.'

Plaintiffs in error admit that the conspiracy is sufficiently alleged in both counts, but contend that the object of the conspiracy in each instance is not shown by the indictment to be any crime known to either the common law or the statute, and that these counts are fatally defective in not alleging every element necessary to constitute the objective felony as fully as if the indictment was for the perpetration of the offenses of larceny by bailee and embezzlement. Their contention is largely based upon the case of Lipschitz v. People, 25 Colo. 261, at page 265, 53 P. 1111, 1112, and particularly the following statement in the opinion: 'In apt words, the conspiracy is sufficiently alleged; but it is strenuously contended that the object of the conspiracy is not shown to be a crime. Arson is a recognized offense at common law; and under the doctrine of McNamara v. People 48 P. 541, it might have been sufficient, and probably would be, had the pleader stated the object of the conspiracy to be to commit the crime of arson by burning the building designated; in other words, by designating the purpose of the conspiracy by its common-law name. See, also, 2 Eng.Enc.Law, 917 et seq., and cases cited. But the pleader did not see fit to do that. He attempted to state the ingredients of the crime. In such a case the law is that, when the purpose of the conspiracy is claimed to be the commission of a crime, the indictment must contain every element necessary to constitute that offense, as fully as if the indictment was for its perpetration.'

In the Lipschitz Case, supra, the questioned part of the indictment charging the objective crime was as follows: 'feloniously, willfully, and maliciously did conspire, co-operate, and agree together to burn and cause to be burned a certain residence building of the property of Peter Winne, trustee.'

It will be observed that the indictment alleged the purpose of the conspiracy to be the mere burning of the house of another, which would not be arson at common law or under our statute, since to constitute the crime the burning must be both willful and malicious. It was very properly held that the indictment in that proceeding was fatally defective in substance, in that it failed to aver an unlawful act as the object of the conspiracy which is necessary under our statute. Connor v. People, 18 Colo. 373, 33 P. 159, 25 L.R.A. 341, 36 Am.St.Rep. 295; Miller v. People, 22 Colo. 530, 45 P. 408.

Considering the real issue in the Lipschitz Case, supra, it would seem the foregoing quoted portion of the opinion is really dictum; but in view of the fact that this case was subsequently cited in Imboden v. People, 40 Colo. 142, 160, 90 P. 608, 614, as authority for the rule, that, 'Unless the crime which it is alleged the defendants conspired to commit is named, the indictment must contain every element necessary to constitute that offense as fully as if the indictment was for its perpetration,' we deem it advisable to look further in the matter in order that the law may be settled in this jurisdiction.

The second count, under which both plaintiffs in error were found guilty, had for its avowed purpose, and was so treated Before and during the trial, the charging of a conspiracy to commit larceny as bailee. Our statute relating to larceny by bailee (section 6732, C.L.1921) provides: 'If any bailee, by finding or otherwise of any money, bank bill, or note, or goods or chattels, shall convert the same to his or her own use with an intent to steal the same, he shall be deemed guilty of larceny in the same manner as if the original taking had been felonious, and on conviction thereof shall be punished accordingly.' Larceny by bailee is not a common-law offense.

In 5 R.C.L. p. 1083, § 29, the rule as to the definiteness required in the averment of a statutory crime as the purpose of a conspiracy is stated as follows: 'It is generally unnecessary to set out the object of a conspiracy as precisely as in an indictment for the crime itself; but it is sufficient to designate the contemplated crime * * * in the words of the statute if it is a statutory offense. It is not, however, necessary to charge the object in the words of the statute. So long as the allegations of the indictment show that the object is the crime defined by the statute, it is sufficient. The reason that the objective crime may be pleaded in the indictment without particularity is, that the crime of conspiracy does not consist in the accomplishment of the unlawful object, or in doing the acts by means of which the desired end is to be attained, but the essence of the offense is the unlawful combination and agreement for any purpose that is unlawful or criminal.'

Under this statement of the law we believe it unnecessary to charge the object of the conspiracy in the precise words of the statute or with the same degree of...