Marshall v. People

Decision Date08 August 1966
Docket NumberNo. 21635,21635
Citation160 Colo. 323,417 P.2d 491
PartiesCarl Melvin MARSHALL, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

Walter F. Scherer, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Justice.

An information charging confidence game, conspiracy to commit confidence game, false pretenses and conspiracy to commit false pretenses was filed against Carl M. Marshall, Jr., referred to herein as defendant, and against one Bardin and one Wheeler.

The defendant was granted a separate trial and was convicted therein of confidence game and conspiracy to commit confidence game. He was sentenced to the state penitentiary for a term of not less than four years nor more than eight years on the confidence game count, and not less than two years nor more than six years on the conspiracy count.

By writ of error, defendant here seeks to reverse the judgment and sentence imposed.

The testimony adduced in behalf of the People at the trial established that one Bradshaw, the complaining witness, went into a public rest room in Cheesman Park wherein he saw a person, whom he identified as the defendant, committing an indecent act. Bradshaw then slapped the defendant on his shoulder with his hand and stated, 'You shouldn't be doing that.' The defendant then grabbed Bradshaw, flashed what purported to be a police badge and identification and told him that he was under arrest. Bradshaw was then handcuffed and introduced to a man called Sergeant Mason. Bradshaw was questioned by the Sergeant and then permitted to leave. Upon the trial Bradshaw identified the co-defendant Bardin as the man introduced to him as 'Mason.'

Thereafter, 'Mason' visited Bradshaw at his place of work and introduced Bradshaw to an individual who represented himself as being a police lieutenant. 'Mason' and the 'lieutenant' produced a letter purporting to be from one Edward J. Barnett, Deputy Chief of Detectives, reprimanding them for failure to make an arrest according to the customary procedure of the police department for sex offenses. The People showed that no one by the name of Barnett was ever Deputy Chief of Detectives, either before, during or after the commission of the swindle. The 'lieutenant' stated to Bradshaw that he didn't want to see an innocent person involved in a 'smear' and further explained that the previous 'arrest' could be covered by Bradshaw giving them $2,500 for a bond; that they would name a fictitious 'Grayson Sturdevant' in a complaint, and since they would not find such a person, the complaint would be dropped. Bradshaw's money would then be returned to him, they said, and no one would be the wiser.

'Mason' told Bradshaw, a high school teacher, that a man of his position and good reputation was in no position to refuse the plan because he would be arrested immediately and exposed in court.

'Mason' thereupon accompanied Bradshaw in the latter's attempt to raise the necessary funds. In the course of these attempts, Bradshaw became suspicious that all was not as it had been represented to him. Nevertheless, Bradshaw gave Bardin $1,500 which he borrowed towards the $2,500. While attempting to raise the remaining $1,000, Bradshaw was overcome by his suspicions and the police were notified.

A plan was devised to trap the defendant and his accomplices. According to the plan, Bradshaw was to deliver to 'Mason' an envelope which ostensibly contained $1,000. Thereafter, when the envelope was delivered to 'Mason,' he and the defendant were arrested. The People completed its case with testimony that neither the defendant nor Bardin were police officers at any time. The defendant did not testify and rested his case immediately after the conclusion of the People's case.

Counsel who represents the defendant in this appeal did not represent him in the trial of the case.

In his brief, the defendant asserts three assignments of error: (1) The court erred in giving Instruction No. 8; (2) The motion for judgment of acquittal should have been granted because the evidence does not sustain the charge of confidence game; (3) The evidence failed to establish that the defendant was guilty of the crime of confidence game; therefore, the charge of conspiracy to commit confidence game is unsupported and accordingly the motion for judgment of acquittal as to the conspiracy count should also have been granted.

We will consider these assignments of error under two headings.

I.

We observe from the record that no specific objection was interposed to the giving of Instruction No. 8 prior to or at the time the instruction was given to the jury; there is only the general statement that '* * * the defense has examined instructions one through eighteen and has objections only to those that relate to conspiracy, confidence game and false pretenses.' No further elaboration of the objections to the instructions was made. Furthermore, no objection to the instruction was preserved in the defendant's motion for a new trial.

It is clear, therefore, that the defendant's objections with regard to jury instructions are raised for the first time on the appeal and are not properly before the Court in light of the provision of Rules 30 and 37(b), Colo.R.Crim.P. which have been consistently held to be controlling in these instances.

Rule 30, Colo.R.Crim.P. provides that only...

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11 cases
  • People v. Kadell
    • United States
    • Colorado Court of Appeals
    • October 5, 2017
    ...287, 291, 447 P.2d 215, 217 (1968) ; Moore v. People , 164 Colo. 222, 230-32, 434 P.2d 132, 136-37 (1967) ; Marshall v. People , 160 Colo. 323, 326-27, 417 P.2d 491, 493 (1966) ; Moreno v. People , 156 Colo. 503, 506, 400 P.2d 899, 900 (1965) ; Peterson v. People , 153 Colo. 23, 27-28, 384 ......
  • People v. Steele
    • United States
    • Colorado Supreme Court
    • April 18, 1977
    ...See, e.g., People v. Shannon, Colo., 539 P.2d 480 (1975); DeBose v. People, 175 Colo. 356, 488 P.2d 69 (1971); Marshall v. People, 160 Colo. 323, 417 P.2d 491 (1966). In the present case, evidence of a conspiracy resulted in a conspiracy conviction while the same evidence Plus the stipulate......
  • DeBose v. People
    • United States
    • Colorado Supreme Court
    • August 9, 1971
    ... ... Marshall, Jr. v. People, 160 Colo. 323, 417 P.2d 491 (1966); Roll v. People, 132 Colo. 1, 284 P.2d 665 (1955); Short v. People, 27 Colo. [175 Colo. 360] 175, 60 P. 350 (1900); Davis v. People, 22 Colo. 1, 43 P. 122 (1895). Since the substantive offense and the conspiracy are separate and distinct crimes, ... ...
  • Digiallonardo v. People, s. 24116
    • United States
    • Colorado Supreme Court
    • September 20, 1971
    ...the prosecution has established a prima facie case. In considering the evidence presented at trial in the light of Marshall v. People, 160 Colo. 323, 417 P.2d 491 (1966); McBride v. People, 126 Colo. 277, 248 P.2d 725 (1952); and Kelly v. People, 121 Colo. 243, 215 P.2d 336 (1950), we feel ......
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