McClure v. People

• Decision Date: 04 June 1900
• Citation: 27 Colo. 358,61 P. 612
• Parties: McCLURE v. PEOPLE.
• Court: Colorado Supreme Court

61 P. 612

27 Colo. 358

McCLURE v. PEOPLE.

Supreme Court of Colorado

June 4, 1900

Error to district court, Montezuma county.

James E. McClure was convicted of larceny as a bank president, and he brings error. Reversed.

The defendant (plaintiff in error) was convicted of statutory larceny, in that, as president of the Bank of Rico, which was incorporated and doing a general banking business under the laws of the state of Colorado, he received and assented to the reception of a certain deposit in said bank, knowing at the time that the institution was then insolvent. The statute on which the information was based declares: 'If * * * and president * * * of any * * * bank, or banking institution, * * * shall receive or assent to the reception of any deposit of money * * * in such bank or banking institution, * * * after he shall have had knowledge of the fact that such * * * bank or banking institution is insolvent, he shall be deemed guilty of larceny,' etc. Sess. Laws 1885, p. 50; 1 Mills' Ann. St. § 222.

Campbell C.J., dissenting.

Gerry & Taylor, C. A. Johnson, and A. B. Seaman for plaintiff in error.

David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen and Dan B. Carey, Asst. Atty. Gen., for the People.

CAMPBELL C.J. (after stating the facts).

The propositions urged by the plaintiff in error, and relied upon for a reversal of the judgment, may be thus stated: First, the information is double; second, the evidence of the people admitted by the trial court failed to show defendant's personal knowledge of the insolvency of the bank, and evidence offered by the defendant to show his lack of knowledge thereof, and as an excuse for his ignorance, was erroneously rejected.

1. It is strenuously argued by counsel that the receiving of a deposit in the circumstances named in the statute is one offense, and the assenting to its reception is another and a distinct offense, and that, while the two may be separately set forth in the same information, it is improper to combine them in one count. Unquestionably, the rule at common law, as well as in most of the states of the Union, is that offenses which are entirely distinct and separate, and require different proof, may not be included in the same count of an indictment, even though they may, when relating to the same transaction, be included in different counts thereof. A number of authorities have been called to our attention under which, it is said, this information is bad. The case upon which plaintiff in error seems mainly to rely is U.S. v. Cadwallader (D. C.) 59 F. 677, where the indictment was for violating the national bank laws. The statute prohibited the 'embezzling, abstracting or willfully misapplying the moneys' of the bank, and the court held that each of these acts constituted a separate crime or offense, which may be joined in one indictment, but must be stated in separate counts. The federal statute was really decisive of the point, but the court in part rested its conclusion upon the rules of common-law pleading. In the opinion the district judge used this language: 'If the statute describes only different stages, degrees, or phases of one and the same offense, these degrees or phases may undoubtedly all be set forth and charged in the same count of the indictment; but if the statute defines different and distinct offenses, each requiring different proof to establish it, there can be little doubt that they should not be joined in the same count, though they may all, or any of them, be united in different counts in the same indictment.' The controlling question seemed to be that, in the judgment of the court, the proof to establish either one of these offenses would be wholly inadequate to make out a case under either of the others. A number of cases are referred to by the learned judge as recognizing the principle upon which the decision was put. Other cases cited by plaintiff in error, which are, in some respects at least, in his favor, are: People v. Cooper, 53 Cal. 647; State v. Haven, 59 Vt. 399, 9 A. 841; Larison v. State, 49 N. J. Law, 256, 9 A. 700; People v. Tower, 135 N.Y. 457, 32 N.E. 145. In most, if not in all, of the authorities relied upon by him, some material element, not present in the case at bar, differentiates them from it. Fairly considered, none of them controls the decision here.

Our statute seems to be substantially the same as that of Missouri, and counsel say that the decisions there are in their favor. In State v. Wells, 134 Mo. 238, 35 S.W. 615, it was held that, where a defendant was charged with receiving a deposit, a conviction could not be sustained, where the evidence was only to the effect that he assented to its reception. In passing, we may say that, in many respects, the facts of that case are essentially different from the facts of the case in hand. But this authority is cited to the proposition that the receiving and assenting to the reception are different offenses. The facts of the case did not call for any decision as to whether or not the act of receiving and the act of assenting thereto might or might not be charged in the same count, and therefore, if there is language in the opinion either for or against the practice, it would be obiter. If, however, any legitimate inference can be drawn therefrom one way or the other, it is that such a union may be made; for the court in its opinion cites with approval State v. Batson, 31 Mo. 343, and State v. West, 21 Mo.App. 309. In the former case the indictment was under a statute declaring that every person who 'shall willfully and maliciously break, destroy or injure the door or window of any dwelling house' shall, upon conviction, be adjudged guilty, etc. (Rev. Code Mo. 1855, p. 584, § 60); and the indictment, following the language of the statute, charged in one count that the defendant 'broke and injured the door of a dwelling house,' and in another count that he 'broke with force and arms the windows of a dwelling house.' The court said: 'The terms 'break, injure or destroy' being used disjunctively in the statute, the offense is well described by charging it to have been committed as in the second count by a breaking alone, or as in the first by both a breaking and injuring. It is an offense to willfully and maliciously break, destroy, or injure. To do either act is to commit an offense, and one or all these things may be charged in an indictment according to the circumstances of the case.' In the latter case the indictment was under a statute providing: 'If any public officer * * * shall be intoxicated while in the performance of any official act or duty, or shall become so intoxicated as to be incapacitated to perform any official act or duty, * * * he shall be declared guilty of a misdemeanor in office,' etc. Rev. St. Mo. 1879, § 1642. The indictment was based on the second clause, and in speaking to the objection urged against the same the court said: 'It is to be borne in mind that the section of the statute is in the disjunctive, and contains two offenses. The first is for being intoxicated while in the performance of any official act or duty, and the second is for becoming so intoxicated as to be incapacitated to perform any official act or duty at the time and in the manner required by his office. It was competent to indict him, according to the facts, for either or both of these offenses.'

In State v. Sattley, 131 Mo. 464, 33 S.W. 41, the indictment against the defendant contained two counts,--one for receiving a deposit, the other for assenting to the creation of an indebtedness,--and the court sustained a general verdict of guilty, and upheld a sentence as for one offense, on the ground that the several offenses charged arose out of one and the same transaction. The court in that case did not hold that those offenses might not be charged in one court. That they might be stated separately is not at all conclusive that they may not be combined. And the general verdict would not have been upheld, and on principle could not be sustained, except on the ground that receiving and assenting are but different ways of charging the same offense, and when they relate to the same transaction, and are the act of one and the same person.

In Clifford v. State, 29 Wis. 327, it was held where a statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punished alike, it is a general rule that the whole may be charged conjunctively in a single count as a single offense; for in that case all are regarded as constituting but one offense, and the conviction or acquittal is regarded as a sufficient bar to all or either, whether separately or conjointly pleaded.

In State v. Bielby, 21 Wis. 206, defendant was convicted of vending, selling, dealing, and trafficking in and giving away liquors. Dixon, C.J., in replying to an objection to the form of the indictment, said: 'It is objected that the complaint is bad for duplicity, because the several acts named in the statute, if charged separately, would each constitute a distinct offense. This may be so, but still the complaint is not double. An indictment in such case may pursue the language of the statute, charging the commission of the several acts conjunctively, and as constituting all together one offense, in which case there can be but one conviction and one punishment, as for one offense.'

Hinkle v. Com., 4 Dana, 518, was a case where the defendant was convicted under an indictment charging him with setting up and keeping a gaming table, and inducing another to bet at it, and the court says: 'Although the setting up of a gaming table may alone be an indictable offense, and the keeping of such table, and the inducing of any person to bet upon it, another, when each...