Moore v. People

• Decision Date: 01 June 1903
• Citation: 73 P. 30,31 Colo. 336
• Parties: MOORE v. PEOPLE.
• Court: Colorado Supreme Court

73 P. 30

31 Colo. 336

MOORE v. PEOPLE.

Supreme Court of Colorado

June 1, 1903

Error to District Court, Pueblo County.

H. H Moore was convicted of conspiracy to commit a felony, and brings error. Affirmed.

The plaintiff in error and others were convicted of a conspiracy to commit a felony, and sentenced to a term in the penitentiary. There are three counts in the information. The first count charges a conspiracy to obtain money, goods, and chattels in amounts and quantities of greater value than $20 by means of false pretenses, without specifying the pretenses intended to be employed. The second count charges a conspiracy to obtain money, goods, and chattels in amounts and quantities of greater value than $20, by means of certain false pretenses to be made in the sale and disposition of false, forged, and counterfeit pay checks resembling and purporting to be the genuine pay checks of the Colorado Fuel & Iron Company. The third count charges a conspiracy to falsely make, forge, and counterfeit pay checks of the Colorado Fuel & Iron Company, and to utter and pass such forged checks as true and genuine, with intent to defraud. The defendants were convicted upon the second count of the information. In this count it is charged that A. C. St Clair, George H. Smith, Con. S. Duncan, and H. H. Moore did on September 21, 1901, at the county of Pueblo in the state of Colorado, 'feloniously, falsely, and maliciously combine, conspire, confederate, and agree to and with each other to do and co-operate with each other in the commission by them, or some one or more of them, in the said county of Pueblo, an unlawful act, to wit, a felony,' which felony was 'feloniously, fraudulently, knowingly, and designedly, by means of certain false and fraudulent pretenses there and thereafter to be used, made, and availed of by the said named persons, or some one or more of them, to obtain from divers of the citizens of the said state of Colorado and residing in the said county of Pueblo (the name or names of which said citizens is and are to the said district attorney unknown) divers sums of money and divers goods, wares, and chattels or other valuable things, with the intent knowingly, designedly, fraudulently, and feloniously to cheat and defraud the person or persons from whom the said money, goods, wares, chattels, effects, or other valuable things as aforesaid should be so fraudulently and feloniously obtained by means of said false pretenses, and that the value of the money, goods, wares, chattels, effects, or other valuable things aforesaid to be so obtained in some one or more of the instances where the obtaining of said money or property by said false pretense or pretenses was agreed to be so obtained, was to exceed the value of twenty dollars ($20) lawful money of the United States of America'; that to effect the object of said conspiracy it was then and there agreed 'that the said named persons should execute or cause to be executed certain paper writings to be in part engraved, in part printed, in part stamped, and in part in writing, to have the form and similitude of what is and has been commonly known in the said county of Pueblo as the 'pay checks' of a corporation known as the Colorado Fuel & Iron Company (said corporate body being then and there duly organized and existing under and by virtue of the laws of the state of Colorado), but which paper writings, when fully executed according to the intent and purpose of the said felonious and unlawful conspiracy as aforesaid, would be, in fact, wholly fictitious, and of no true and intrinsic value whatever, but which would nevertheless be so prepared and executed as to be calculated, intended, and fitted to deceive the general public, and especially the citizens of the said county of Pueblo, by leading such citizens to believe that the said paper writings would, when so executed and completed, be in fact the true and lawful pay checks of the said the Colorado Fuel & Iron Company, and calling for the payment by the said company, through the bank in which said checks were customarily honored, of the amount of money to be designated in said paper writings to the order of the person therein named as payee; and that in pursuance of the said felonious conspiracy, combination, confederacy, and agreement, as aforesaid, the said named persons, or some one or more of them, was to present, pass, indorse, and negotiate the said false and fraudulent paper writing or writings, when so executed, to some one or more of the citizens of the said county of Pueblo, for the purpose of obtaining money, goods wares, chattels, or other valuable thing, by means thereof and the said felonious conspiracy, combination, confederacy and agreement, as aforesaid, was also to the effect that, when the said false and spurious paper writing as aforesaid was to be presented for the purpose aforementioned, it would be then and there knowingly, designedly, and feloniously, falsely pretended by the conspirator or conspirators so presenting the said paper writing that the said paper writing was in fact the true and genuine pay check of the said the Colorado Fuel & Iron Company, and that the conspirator or conspirators so presenting the same for the purposes aforesaid was the lawful owner or holder thereof, either as payee or as indorsee or assignee thereof, with the intent then and there by means of said false and spurious writings, as aforesaid, to cheat and defraud the citizen or citizens of said Pueblo county, as aforesaid, to whom the same might be presented and negotiated by way of payment or in exchange for the money, goods, wares, chattels, or other valuable things to be so obtained thereby.' It is also alleged that the defendants were arrested before the consummation of the conspiracy.

In response to a motion of the defendants, a bill of particulars was filed by the district attorney, setting out 47 completed pay checks and 194 incomplete, or blank, pay checks, purporting to be pay checks and blank checks of the Colorado Fuel & Iron Company, and bearing the engraved signature, 'C. F. Freeland, Cashier,' as having been made by the defendants in furtherance of the conspiracy.

On February 1, 1902, the plaintiff in error filed a motion for a separate trial, accompanied by affidavit, which motion was denied by the court. On February 3d the case came on for trial, and a jury were called, sworn, and examined on their voir dire. At the conclusion of the examination, the district attorney asked leave of court to indorse upon the information the name of Homer Hogoboom. The defendants thereupon asked for a continuance to the next term of court upon the ground of surprise. The court granted a continuance until February 24th, and discharged the jurors in the box, but, upon objection being made by the defendants to the discharge of the jurors, immediately recalled them, and excused them from further attendance upon the court until February 24th. The defendants objected to excusing the jury until February 24th, and also to the court's calling them back after having discharged them. On February 24th a continuance was granted until March 31st, on account of the illness of a witness for the prosecution, and the jurors in the box were discharged. The defendants objected to the continuance and to the discharging of the jurors. On March 31st, when the case came on for trial, the defendants interposed a challenge to the entire panel of jurors upon the ground that the jurors who were in the box at the time of the last continuance had been excused, over the objection of the defendants, and the panel was then depleted, necessitating a trial upon a panel summoned by open venire. The record then recites that 'thereupon the impaneling of a jury proceeded by alternate challenges, first by the state and then the defendants, until a point was reached where the defense had exercised thirty peremptory challenges, and the state had exercised fifteen challenges and waived their right to challenge fifteen times; whereupon the state attempted to exercise another peremptory challenge, to which the defense objected for the reason that the state challenges and waivers had already amounted to thirty, which objection was overruled by the court, and the challenge allowed the state; the court holding that the state has a right to exercise thirty peremptory challenges aside from all waivers of challenges; also holding that the state cannot exercise challenges as to any juror that was in the box at the time when they waived the right of peremptory challenge'--to which ruling of the court the defendants excepted. The people, over the objections of the defendants, exercised three more peremptory challenges, and the defendants asked to be permitted to exercise another peremptory challenge, but were refused upon the ground that they had used their thirty peremptory challenges.

Instruction No. 3, given by the court, is as follows: 'The court further instructs the jury that the defendant George H. Smith is not being tried at this time, and, in so far as your consideration of the case is concerned, you will consider the case as to the guilt or innocence of the defendants A. C. St Clair, Con. S. Duncan, and H. H. Moore; and as to the said defendant George H. Smith you may consider him only in connection with the said conspiracy as one of the parties thereto--that is, notwithstanding whether or not you find any two of the defendants A. C. St. Clair, Con. S. Duncan, and H. H. Moore agreed and conspired with each other for the commission of the offense charged in the first and second counts of the information, yet, if you find that any one of said defendants conspired to commit the offense with the said George H. Smith, you may find such defendant guilty of conspiracy the...