Kelly v. People

Decision Date06 February 1950
Docket NumberNo. 16227,16227
Citation121 Colo. 243,215 P.2d 336
CourtColorado Supreme Court

Issac Mellman, Denver, Paul C. Lennartz, Sterling, for plaintiff in error.

John W. Metzger, Attorney General, Raymond B. Danks, Assistant Attorney General, for defendant in error.

ALTER, Justice.

George Kelly was convicted of a violation of our 'Confidence Game' statute and sentenced to a term in the penitentiary. He brings the case here by writ of error seeking a reversal of the judgment.

At the trial the evidence disclosed that one Peter Loos, a farmer residing in Logan county, Colorado, was the owner of twenty shares of stock of Bankers Union Life Company, and on the 4th day of August, 1948, defendant, at that time a complete stranger to Loos, called at the latter's farm home and induced him to endorse and deliver his Bankers Union stock to him. Defendant, in consideration for receiving Loos' stock, then promised to deliver to him ten shares of stock in an industrial bank or finance company in Denver, which defendant represented he owned and which would pay Loos an annual dividend of seven and one-half per cent.

A portfolio which defendant exhibited to Loos in persuading him to exchange his Bankers Union Life stock for promised stock in defendant's industrial bank or finance company contained a stock certificate in another company which had advantageous provisions, written in small print, for the payment of an annual dividend of seven and one-half per cent, and defendant then stated that the stock certificate in his industrial bank or finance company contained like provisions. The portfolio also contained a certificate of reservation of corporate name 'Continental Finance Corporation' issued by the secretary of state on the 30th day of April, 1948; tables showing the income from various sums loaned at ten per cent; numerous loans to individuals on chattel mortgages disclosing the amounts paid by the borrower; also statements of numbers of loans made, dollar volume, outstanding balance and earned interest, certified by one representing himself to be the secretary and comptroller of 'Legal Fund Finance Corporation' indicating earnings of some twenty-three to thirty-six per cent on the capital employed; a letter from the Denver National Bank, under date of August 6, 1946, addressed to Mr. George Kelly, appreciating his selection of the bank as a depository; clipping from the Union Life Insurance Company, of Little Rock, Arkansas, with a picture of Kelly as one of the 1946 leaders in written production; letters from the Union Life Insurance Company, of Little Rock, and from The London & Lancashire Insurance Co., Ltd., with reference to agency matters, bearing dates in early 1947; letter dated 1946, from Occidental Life Insurance Company of California, with reference to his agency; various tables showing monthly payment charts on used cars and furniture loans; four pictures of what defendant represented to be his Denver office; pictures of three airplanes which defendant stated he owned and one which he was about to purchase; and various other instruments and documents. One of the documents, issued by the secretary of state's office, was represented as evidence of defendant's right and authority as a broker and industrial bank. He presented a business card bearing the name 'George Kelly, Inc., Brokers, Denver National Bank Building, Denver, Colorado.' and when he obtained the stock from Loos, he immediately placed the same in a business envelope upon which was the following: 'George Kelly, Inc., Denver National Bank Building, Denver 2, Colorado' and stated that this envelope would immediately be mailed to his Denver office. At the time he obtained the Loos certificate, he made some excuse or explanation to the effect that it would be about thirty days before Loos would receive the stock in his industrial bank or finance company, and that he would deliver it personally. After some time had elapsed and Loos had not received his stock certificate, a letter was written to defendant, requesting some explanation, to which defendant replied by telegram that the stock had been mailed on August 26 and apparently had been lost in the mail, and that a duplicate certificate would be immediately forthcoming. No certificate was ever received by Loos.

The evidence further discloses that defendant, within two days after receiving the Bankers Union Life stock from Loos, sold the same to a broker for $600, representing to the broker to whom the stock was sold that it had been received by him as part payment on an airplane. Further, the evidence disclosed that no articles of incorporation were ever filed in the office of the secretary of state under the name of 'George Kelly, Inc.' or 'George Kelly, Incorporated' but did disclose that on April 30, 1948, the Continental Finance Company filed a reservation of name in the office of the secretary of state, and subsequently, on August 31, 1948, filed a like reservation for the same name, but no articles of incorporation for that company were ever filed, nor does the evidence disclose by whom the reservation was made.

It further appears from the evidence that one George Kelly did rent an office in the Denever National Bank Building from June, 1947, until June, 1948, but on the last date the office was vacated, and that no George Kelly had an office in that building subsequent thereto. With reference to the office photographs exhibited by defendant, the evidence disclosed that these were pictures of a finance company office located on South Broadway in Denver.

At the time defendant secured the Bankers Union Life Company stock from Loos, he represented that he had been a major general in Air Corps during World War 2, serving in several theatres of operation, but he stated to the officers at the time of his arrest that he had not served in the armed forces, and he then stated that the money which he had received from the sale of the Loos stock was being held in trust in the Denver National Bank; however, an officer of the Denver National Bank testified that while there was an account in the name of 'George Kelly, Inc.' in that bank, there had been no deposits to or withdrawals therefrom since August 1, 1948, and that the balance to the credit of the account was $3.55.

Other witnesses were called who testified that they had delivered their Bankers Union Life Company stock to defendant upon like or similar representations, and the portfolio and its contents was used by defendant in the same manner as used in procuring the Loos stock. No testimony whatever was offered at the trial on behalf of the defendant.

A motion for a new trial was based upon eighteen grounds, and after argument thereon was overruled. The assignments of error presented here are nineteen in number, but are consolidated and presented by counsel for defendant under the following: 1. Refusal to grant a motion for mistrial; 2. error in giving instruction No. 4; 3. refusal to sustain challenge for cause to a juror whose brother is a witness; 4. verdict is contrary to the law and the evidence; 5. error in denying defendant's right to take depositions. These will be discussed in the above order.

1. Counsel's arguments to the jury are not preserved in the record; however, the incident giving rise to this assignment apears in the record:

'Mr. Mellman: Your Honor please, we object to that statement by the District Attorney as definitely prejudicial to the defendant and wish to have the record show what the District Attorney just stated.

'The Court: The record will so show (Inasmuch as the closing arguments were not reported the following proceedings were had:)

'Mr. Mellman: Your Honor please, we would like to have the record show that the District Attorney said that if they had had no case, or brought the wrong charge, that the Court would have taken the case away from the jury. We object to that statement. We feel that it is definitely prejudicial to the defendant, and we ask for a mistrial on that.

'Mr. Payter: That was in answer to counsel's statement that the reason they did not put on any evidence was because we had no case. How in order that there be no misapprehension created by that statement----

'Mr. Mellman: Just a minute--is he going to argue further?

'The Court: No, he is just answering----

'Mr. Paynter: In order that there may be no misapprehension created by that statement, it is your duty, gentlemen, to determine the facts of the case, and whether the facts of the case have been established here; whether we have proven the elements of the case as set out in the instructions of the court----

'Mr. Mellman: If your Honor please----

'The Court: I think the court should rule on the motion. The motion [for mistrial] is overruled, and the jury is instructed to disregard any statemet of counsel as to the duty of the court.

'Mr. Mellman: We save an exception to the ruling of the Court.'

The denial of the motion for a mistrial was one of the errors assigned in defendant's motion for a new trial, and with reference thereto the court said in part: 'The defendant introduced no evidence, and his counsel based his argument on the position that the People had not made a case of 'Confidence Game' against the defendant, and that they 'had no case.' The Court felt that the statements of the People's counsel, to which objection has been taken, was made in answer to the statement of defendant's counsel and was invited thereby. The Court did not detect or interpret in the District Attorney's statement an intention to go outside the record in an effort to mislead the jury; neither did the Court take counsel's statement as an expression of the opinion of either himself or the Court; but, as the Court's admonition given to the jury would indicate, was merely a statement of the Court's duty in ruling on the Motion for a new trial [mistrial]. The Court is of the opinion that his admonition given...

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