Munsell v. People
| Decision Date | 18 September 1950 |
| Docket Number | No. 16344,16344 |
| Citation | 122 Colo. 420,222 P.2d 615 |
| Parties | MUNSELL et al. v. PEOPLE. |
| Court | Colorado Supreme Court |
Wm. Albion Carlson, John J. Dooley, Greeley, for plaintiffs in error.
John W. Metzger, Atty. Gen., Raymond B. Danks, Asst. Atty. Gen., for defendant in error.
Leon D. Munsell, alias L. Munsell, and Marjorie E. Munsell, alias Mrs. M. E. Munsell, were charged with a violation of section 222, chapter 48, '35 C.S.A., commonly known as our confidence game statute, and also in the information Leon D. Munsell was charged with being 'an habitual criminal' in four separate counts, under the provisions of chapter 114, page 310, Session Laws Colorado, 1945, section 555(1), chapter 48, 1949 Cum.Supp., commonly designated as the habitual criminal act. Both were found guilty of a violation of the confidence game statute and sentenced to terms in the penitentiary. They are here seeking a reversal by writ of error.
We will hereinafter refer to Leon D. Munsell, alias L. Munsell, as Leon, and to Marjorie E. Munsell, alias Mrs. M. E. Munsell, as Marjorie.
At the trial neither defendant was sworn and examined, and neither offered any evidence.
The undisputed evidence disclosed that Marjorie, late on Saturday morning, March 22, 1947, opened a joint checking account for herself and Leon by depositing $20 in The Greeley National Bank. She took the signature card with her, stating that her purpose in so doing was to obtain the signature of Leon. At the same time, 'she said she was having some money transferred to The Greeley National Bank, and she wanted to open an account with $20, so that her account would be opened when the money came in.' In the afternoon of the same day Leon entered the Gregory Clothing Company store at Greeley with the avowed purpose of purchasing a size 46 suit of clothing and introduced himself to the manager of the Gregory company as a representative of a brewery, having in mind the establishment of a branch in Greeley. He stated that he and his wife, Marjorie, were temporarily residing in a cottage camp until they could find some other quarters or a house in Greeley, where it was their intention to remain and establish a residence. Leon also represented that he was a member of the Elks lodge and had been at the lodge room visiting with some of the members there; that he planned to attend an Elks convention then in session, and for that reason desired to purchase a new suit. His reason for not consummating the purchase of the suit was stated to be that his wife carried the check book and that the suit could not be bought without her consent. Later in the afternoon Leon and Marjorie appeared at the clothing store, and after some inquiries as to the suit, she rather reluctantly consented to its purchase, together with some other articles of merchandise. Marjorie wrote a check for the sum of $65.79, and in so doing casually shoved the checkbook over where the manager of the clothing store could see it, and the stub showing a balance in excess of $600. Subsequently and on the afternoon and evening of Saturday, March 22, 1947, similar representations were made to six other business men in Greeley by Leon or Marjorie, and, as a result thereof, other goods of the approximate value of $200 were obtained by issuing in payment therefor for checks drawn on The Greeley National Bank.
There also was introduced in evidence a check drawn on The West Side National Bank of Yakima, Washington, in the sum of $50, made payable to the Park Church, a religious institution in Greeley, Colorado, the check being signed by Leon and dated March 21, 1947, payment of which was refused.
One of the merchants who had received a check for $21.68, upon learning that the checking account of the defendants was $1.68 short, made a deposit of that amount to the credit of the account and cashed his check, leaving no balance therein. Payment of all other checks was refused.
In opening the joint account with The Greeley National Bank, Marjorie represented their residence as 1329 Fourth St., Greeley; on one of her checks her address is given as Route 85, Box 182, Greeley; on another check it is stated to be Hoover Motel Camp, Greeley. The check forming the basis of the charge in the information was number 38.
During the night of March 22, 1947, Leon cashed his check at a liquor store in Brush, Colorado, for $13.85, with part of the proceeds of which he purchased two bottles of whiskey.
Some time late in January, 1949, defendants were apprehended at Phoenix, Arizona, where they had assumed the name of Combs.
The undisputed evidence was that Leon was not the representative of a brewery; was not an Elk; was not contemplating the opening of a branch of the brewery in Greeley, and was not purposing to take up his residence there. The evidence further conclusively established the fact that the only money ever deposited by Leon or Marjorie in The Greeley National Bank was the $20 deposit made some time during the business hours of March 22, 1947, and that the notation on the stub of the checkbook indicating a balance of $600 in The Greeley National Bank was fictitious and false.
An officer testified that Leon admitted to him a former conviction of the crime of forgery, second degree, in the state of New York and that he had served his sentence in the Elmira State Reformatory; that he had been convicted of a felony in the state of California and was sentenced to the California State Prison at San Quentin; that he was convicted of the crime of forgery in the state of New York and served a sentence in the Auburn State Prison; also that he had been convicted of obtaining money under false pretenses in Connecticut and had served his sentence in the penitentiary of that state. The documents respecting three of these convictions lack the necessary proof to make the same admissible in evidence, and although the trial court held evidence of one of the former convictions admissible, this, the trial court held, under the provisions of the 1945 amendment, supra, was insufficient upon which to impose an additional term in the penitentiary. If, in so holding, the trial court was in error, it was error committed in Leon's favor, of which he cannot now successfully complain.
The court found that the 'conduct [of defendants] was a fraudulent scheme to obtain the confidence of the officers and employees of the Gregory Clothing Company, and the representations and conduct by the defendants was co-ordinated by and between them to obtain and take advantage of the confidence thus obtained; that in all said acts and conduct, each defendant was accessory to the other; that the defendant, Leon D. Munsell, was not an Elk, and was not a representative of the beer or brewing company, and the entire transaction and scheme, as further shown by many concurrent transactions in and about Greeley, was a studied plan and scheme to obtain the confidence of merchants and others to obtain money or property by means of bogus checks, and a part of said scheme; in fact, a deposit of only $20 had been made at the bank upon which the check involved was written, and a bank book and check book thus obtained; that the check given involved here in exhibit A [check for $65.79] was far in excess of the bank deposit, and especially so in view of many other similar checks dated and passed as of the same date; that said check exhibit A was at the time it was made and delivered spurious and sham and bogus and false, in that there were no funds or credit at the bank with which to meet the same; the maker had no reason to believe that the same would be honored by the bank.
'Generally, the conduct of and the representations made by the defendants constituted a swindling operation in which the confidence of the victim was obtained and then advantage was taken of such confidence by obtaining the property by means of a false check.'
The grounds for a motion for a new trial, as well as assignments of error here are: 1. The findings and judgment are not supported by the evidence; 2. the judgment is contrary to the law; 3. the court erred in overruling defendants' motion to dismiss the first count in the information charging a violation of the confidence game statute.
There are two other assignments with particular reference to the habitual criminal act, but inasmuch as the court held that that act had no application here, and we find no sentence or judgment based thereon, these two assignments will be disregarded.
We have related the evidence in this case at greater length than usual because a study of the elaborate and exhaustive brief filed by defendants' counsel convinces us that the assignments of error considered here all present but one question, namely: Was the undisputed evidence here sufficient to establish beyond a reasonable doubt that defendants were guilty of the offense charged in the first count of the information?
The statute under which the first count in the information was drawn is section 222, chapter 48, '35 C.S.A., and reads in part:
'Every person who shall obtain, or attempt to obtain, from any other person or persons, any money or property by means of or by use of brace...
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...defendant's arguments on the effect of these provisions, it is necessary to review our prior cases in this area. In Munsell v. People, 122 Colo. 420, 222 P.2d 615 (1950), we raised sua sponte the issue of whether a defendant has a right to enter a plea of not guilty and waive a trial by jur......
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