Miller v. People

• Citation: 22 Colo. 530,45 P. 408
• Parties: MILLER v. PEOPLE.
• Decision Date: 18 May 1896
• Court: Supreme Court of Colorado

45 P. 408

22 Colo. 530

MILLER v. PEOPLE.

Supreme Court of Colorado

May 18, 1896

Error to district court, Arapahoe county.

Ed. J Miller was convicted of conspiracy to defraud and with defrauding one Jabez F. Clark by false pretenses, and brings error. Reversed.

The plaintiff in error was jointly indicted with George E Crater, Jr., in the district court of Arapahoe county. The indictment contained three counts,--the first charging them with conspiracy to defraud Jabez F. Clark by means of false pretenses; the second, with conspiring to defraud Clark by means of false pretenses and setting forth the means employed; and third, that of obtaining the money of Clark by means of false pretenses. When the case was called for trial Crater failed to appear, and the trial proceeded against plaintiff in error, and resulted in conviction upon the conspiracy counts; also for the completed offense charged in the third count. Upon the conclusion of the people's testimony, counsel for plaintiff in error asked the court to instruct the jury to render a verdict of not guilty, which being denied, he moved the court to compel the prosecution to elect upon which count it relied for a conviction. In ruling upon this motion the court said: 'I think I will cover that matter in the instructions, as between the counts. My present view of the matter is that the third count should not be submitted to the jury.' In this instructions to the jury the court defined the offense of conspiracy as follows 'The jury are instructed that a conspiracy is an unlawful combination or agreement between two or more persons to do an act unlawful in itself by any means whatever, or to do a lawful act by unlawful means;' and expressly withdrew the third count from the consideration of the jury. Thereupon the cause was argued and submitted. At the close of the argument, and before the jury retired, the court withdrew its last instruction, and directed the jury to consider the last count. The jury returned the following verdict: 'We, the jury, find the defendant, E. J. Miller, guilty, as charged in the indictment, of conspiracy to defraud Jabez F. Clark by false pretenses, and that he did defraud the said Jabez F. Clark out of money and property of the value of ($2,500) twenty-five hundred dollars.' Motions for new trial and in arrest of judgment were denied, and plaintiff in error was sentenced to imprisonment in the penitentiary for the term of five years. To this sentence and judgment Miller prosecutes this writ of error.

Charles Hartzell, Thomas Hartzell, and Bryant & Lee, for plaintiff in error.

B. L. Carr, Atty. Gen., F. P. Secor, Asst. Atty. Gen., and Calvin E. Reed, Asst. Atty. Gen., for the People.

GODDARD J. (after stating the facts).

Numerous errors are assigned, but those argued by counsel for plaintiff in error, and particularly relied on for a reversal, may be grouped under three heads: First, the denial of the motion to direct a verdict of not guilty; second, the action of the court in withdrawing the third count during the trial, thereby preventing counsel from introducing any evidence thereon, and in resubmitting the same to the consideration of the jury after the cause was argued and submitted; third, in giving certain instructions. The ground upon which...