Johnson v. People

• Court: Colorado Supreme Court
• Writing for the Court: [36 Colo. 447]GABBERT, C.J. (after stating the facts).
• Citation: Johnson v. People, 84 P. 819, 36 Colo. 445 (Colo. 1906)
• Decision Date: 05 February 1906
• Parties: JOHNSON v. PEOPLE.

84 P. 819

36 Colo. 445

JOHNSON v. PEOPLE.

Supreme Court of Colorado

February 5, 1906

Error to District Court, City and County of Denver; James E Garrigues, Judge.

E. M Johnson was convicted of publishing a false report of a building and loan association, and he brings error. Affirmed.

The law provides that building and loan associations organized under the laws of this state shall semiannually, for the periods ending June 30th and December 31st each year, file with the clerk and recorder of the county in which the principal business of such corporations is carried on a report of their affairs and operations for the six months preceding the dates mentioned. This report shall be verified by the president and secretary of such association, and shall contain, among other items, a detailed statement of receipts for the period covered by the report. Every person who shall make, state, or publish any false report or false statement of such association shall be deemed guilty of a felony. Sections 283g, 283h, 3 Mills' Ann. St. Rev. Supp.; sections 12, 13, Sess. Laws 1897, pp. 127, 128. Plaintiff in error president of the Fidelity Savings Association, was convicted of having made a false report of its affairs for the period ending December 31, 1903. The indictment under which this conviction was had contained a copy of the report preceded by the words, 'of the tenor following, to wit.' According to the copy of the report incorporated in the indictment the deposits under the head of receipts was stated to be $266,073.94, and it was charged that this item was false, in that such deposits for the period named did not exceed $255,173.94. Other items in the report were also charged to be false. The original of the report set out in the indictment was offered and received in evidence over the objection of the defendant. From the original it appeared that the item deposits was stated to be $265,073.94. Defendant objected to this report upon the ground of variance. In all other respects the copy and original corresponded. The original report tallied exactly with all statements in the indictment of a descriptive nature. Among these were the date of filing, and the public office where filed. The jury returned a verdict of guilty, and from sentence thereon the defendant brings the case here for review on error.

Ralph Talbot and Thos. Ward, Jr., for plaintiff in error.

N. C Miller, Atty. Gen., Geo. Stidger, Dist. Atty., and John H Chiles and H. S. Silverstein, Deputy Dist. Attys., for the People.

GABBERT, C.J. (after stating the facts).

The only question urged by counsel for defendant is that the variance in the item of deposits as exhibited by the copy of the report set out in the indictment and the original thereof, introduced in evidence, was fatal, because, when there is set out in an indictment a copy of a written instrument according to its tenor, a variance between the copy so set out and the original offered in evidence to support it, which is material or descriptive in its character, renders the original incompetent as evidence for any purpose. In support of this general proposition, they contend (1) that the variance was material, 'in that it substituted one number for another, and changed the import of the report'; and (2) 'that it was a matter of description tending to the identification of the report actually made.' To these contentions counsel on behalf of the people respond (1) that the variance is in no sense material, and (2) that the variance falls within the provisions of our state statute (section 1433 Mills' Ann. St.), which says in part: 'All exceptions which go merely to the form of an indictment shall be made before trial, and no motion in arrest of judgment or writ of error shall be sustained for any matter not affecting the real merits of the offense charged in such indictment.'

Conceding but not deciding, that the report is set out in the indictment according to its tenor, which generally means that the copy so set out is a literal copy of the original, and without considering the statute invoked by the Attorney General, the important question presented for determination is whether or not the variance was material. We thus limit the inquiry because the authorities hold that a variance between the copy of an instrument set out in an indictment and the original cannot be successfully invoked by the accused in a criminal prosecution unless such variance is in some way material; that is to say, a mere variance is of no consequence unless it prejudices the accused. 3 Rice on Evidence, § 121. In considering this proposition, two questions are involved: First, does the variance show that the offense charged is different from that which was attempted to be proved by the original report? and second, was such variance descriptive in its nature, tending to the identification of the instrument, a copy of which...