Johnson v. People, 14907.

• Decision Date: 18 January 1943
• Docket Number: 14907.
• Citation: 133 P.2d 789,110 Colo. 283
• Parties: JOHNSON et al. v. PEOPLE.
• Court: Colorado Supreme Court

133 P.2d 789

110 Colo. 283

JOHNSON et al. v. PEOPLE.

No. 14907.

Supreme Court of Colorado, En Banc.

January 18, 1943

Error to District Court, Huerfano County; John L. East, Judge.

Clyde M. Johnson and another were convicted of obtaining money by false pretenses, and they bring error.

Reversed.

BURKE and JACKSON, JJ., dissenting.

Romilly Foote and George H. Blickhahn, both of Walsenburg, and Charles A. Murdock and Charles T. Mahoney both of Denver, for plaintiffs in error.

Byron G. Rogers, Atty. Gen., Gerald E. McAuliffe, Asst. Atty. Gen Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

YOUNG, Chief Justice.

In the district court of Huerfano county, Clyde M. Johnson and Felix Mestas were found guilty by a jury of the crime of obtaining money by false pretenses from the county, and upon such verdict the court entered its judgment sentencing each to a term in the penitentiary. To reverse this judgment they have sued out a writ of error in this court.

The indictment on which defendants were tried contained six counts, charging: 1. Conspiracy to obtain money from the county by means of a confidence game; 2. that money was obtained from the county by means of a confidence game; 3 conspiracy to obtain money from the county by false pretenses; 4. that money was obtained from the county by false pretenses; 5. conspiracy to embezzle money from the county, and 6. embezzlement of money from the county.

All the counts in the indictment were predicated on a single transaction by which it was charged, in the various ways indicated, that Johnson and Mestas obtained $22.00 of the county's money out of the welfare fund of the county by means of a false and fraudulent relief order issued by Johnson as commissioner, to Mestas.

At the close of the people's evidence, the district attorney dismissed all counts of the indictment, save two, the third charging conspiracy to obtain money by false pretenses, and the fourth, charging the obtaining of money by false pretenses. Defendants moved the court to require the people to elect upon which count they intended to rely for a conviction, but the court denied the motion, to which ruling an exception was duly reserved. At the close of the introduction of defendants' evidence the district attorney elected to rely upon the fourth count alone, which charged the crime of obtaining money by false pretenses, and the third and only remaining count, charging conspiracy to obtain money by false pretenses, was dismissed.

Before trial a motion to quash the indictment was filed directed to all counts, but since there was conviction only on the fourth, we consider the motion only as it applied to that count. The ground of the motion is, as to this count, that it is 'so vague and general in its terms that it fails to charge the commission of any crime, or the violation of any public law, on the part of the defendants, or either of them.'

The charge in the fourth count was as follows:

'That Clyde M. Johnson and Felix Mestas did, on or about January 17, 1938, in Huerfano County, Colorado, designing and intending, falsely, fraudulently, designedly, knowingly, corruptly and wilfully, to deprive the County of Huerfano, State of Colorado, and the State of Colorado, of Welfare funds in the sum of $22.00, lawful money of the United States of America, did then and there, knowingly, falsely, unlawfully, feloniously, designedly, fraudulently and wilfully cause to be presented to the County of Huerfano, State of Colorado, a certain Huerfano County State Relief Fund order and instrument, made payable to the purported order of R. Lovato in the sum of $22.00, and bearing the purported signature of E. Kastner, which said order is in words, figures and of the tenor as follows, to-wit:

Walsenburg, Colo., 1-17, 1938 No. * * *.

Huerfano County Special State Relief Fund.

Please deliver to R. Lovato $22.00 Merchant Palace Gro. Twenty-two and no/100 Dollars in merchandise and charge to the Huerfano County Special Relief Fund.

Good for * * *.

Signed E. Kastner.

endorsed on the back thereof: R. Lovato. and the said defendants did then and there represent, and cause to be represented to the County of Huerfano and State of Colorado, that the said order was issued and delivered to R. Lovato for the purpose of furnishing and giving said R. Lovato county aid and relief from the Welfare and Relief fund aforesaid, and through the administration of said Relief fund, when, in truth and in fact, the said defendants, and each of them, well knew that said order was not delivered to said R. Lovato, and was not issued for the use and benefit of R. Lovato and was not intended for the use and benefit of R. Lovato, but was, in truth and in fact, fraudulently and falsely made, executed and delivered by the defendant Clyde M. Johnson to the said defendant Felix Mestas, and that said defendant Felix Mestas did fraudulently receive the said Welfare and Relief order and did fraudulently and falsely receive the sum of $22.00 in goods, wares and merchandise, or lawful money of the United States of America and goods, wares and merchandise of the total value of $22.00, and that said order was executed and delivered for the purpose of defrauding and falsely procuring from the County of Huerfano, Colorado, and the State of Colorado Welfare funds in the sum of $22.00 by means and use of false pretenses, and that said Welfare fund of the county of Huerfano, and State of Colorado by these false and fraudulent pretenses was defrauded in said sum, * * *.'

In Tracy v. People, 65 Colo. 226, 176 P. 280, 281, a case in which the sufficiency of an information charging the crime of false pretenses was under consideration, we said:

'These informations are good if defendant is advised with sufficient certainty of the offense with which he is charged, and if the offense is so clearly set out that judgment may be passed thereon. The essentials of an indictment or information for obtaining property by false pretenses are thus enumerated in 11 R.C.L. 857:

"An indictment for obtaining property by false pretenses is sufficient if the language used is such that it designates the person charged and indicates to him the crime of which he is accused. It must, however, have that degree of certainty and precision which will fully inform the accused of the special character of the charge against which he is called on to defend, and will enable the court to determine whether the facts alleged on the face of the indictment are sufficient in the contemplation of law to constitute a crime, so that the record may stand as a protection against further prosecution for the same alleged offense. It must aver all the material elements of the offense, and hence must show what the false pretenses were; that they were made or authorized by the defendant; that they were false and fraudulent; and deceived the prosecutor; and what was obtained by or under them."

While the count here under consideration, upon which defendants were convicted, is far from being a model charge of the crime of false pretenses, and lacks that orderly sequence of statement of the elements of the offense which should characterize an indictment, we are of the opinion that the count contains sufficient allegations, at least as against the ground set forth in the motion to quash--which is all we consider--under the test of sufficiency set forth in Tracy v. People, supra, and we decline to hold that the trial court was in error in denying the motion.

In the indictment the defendants are named. It is alleged that they designed and intended to deprive the county of Huerfano of welfare funds in the amount of $22.00 lawful money of the United States of America. It is further alleged that they caused to be presented to the county officials of Huerfano a certain relief order, which is set out in haec verba in the indictment.

It is also alleged that it purported to be signed by E. Kastner, and to be payable to R. Lovato, and that it was 'endorsed on the back thereof, R. Lovato.' It is further set out that defendants then and there caused to be represented to Huerfano county that the order was issued and delivered to R. Lavato for the purpose of furnishing and giving said R. Lovato county aid and relief from the welfare and relief fund and through the administration of that fund. It is also alleged that the order, set forth in haec verba, and alleged to bear the purported signature of E. Kastner as maker, was fraudulently and falsely made, by Johnson rather than Kastner. It is alleged also that the order purportedly made payable to R. Lovato and endorsed 'R. Lovato' on the back thereof (either by R. Lovato or some other person) was fraudulently made and intended for Mestas and was fraudulently received by Mestas and that he, Mestas, received $22.00 in money or goods that purportedly were for the relief of R. Lovato. It is also alleged that by means of the false pretenses, money to the amount of $22.00 was obtained from the welfare fund of the county. The indictment, as we have stated, is not a model of good pleading, but, on the whole, we think it contains sufficient allegations of the elements of the crime of obtaining money by false pretenses to sufficiently advise defendants so that they could not have been misled, and the transaction is set forth in a sufficiently definite manner so that an acquittal or conviction on the charge alleged would bar any future prosecution based upon the same transaction.

In their argument, counsel for defendants stress as objections that the indictment does not allege: (1) That the representations were false; (2) that the county was deceived and (3) that the county...