Nahler v. People

• Court: Colorado Supreme Court
• Writing for the Court: PRINGLE
• Citation: Nahler v. People, 409 P.2d 508, 159 Colo. 20 (Colo. 1966)
• Decision Date: 10 January 1966
• Docket Number: No. 21323,21323
• Parties: Donald Lee NAHLER, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

Page 508

409 P.2d 508

159 Colo. 20

Donald Lee NAHLER, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21323.

Supreme Court of Colorado, En Banc.

Jan. 10, 1966.

Rehearing Denied Jan. 24, 1966.

John A. Kintzele, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., James W. Creamer, Jr., Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Chief Justice.

Donald Lee Nahler, plaintiff in error, was charged in the trial court with passing a fictitious check in violation of C.R.S. '53, 40-6-8 and was sentenced to the penitentiary. From that judgment he brings writ of error here. He will be referred to either by name or as defendant.

The information upon which Nahler was charged and convicted was filed on November 1, 1962 and reads in pertinent part as follows:

'On the tenth day of October A.D.1962 at the City and County of Denver, and State of Colorado, DONALD LEE NAHLER with intent to cheat and defraud one Eddie Penn and Lillian Penn, doing business as SU-Z-Q TAVERN, * * * did * * * make and publish a fictitious check purporting to be the bank check * * * for payment of money of one Frank E. Clapp, a person duly authorized to sign checks for * * * TERRAZZO AND PRE CAST * * * when in truth and in fact no such person existed as FRANK E. CLAPP, as DONALD LEE NAHLER then then and there knew; and said DONALD LEE NAHLER then and there knew said bank check, draft and order for payment of money was fictitious * * *.'

Defendant entered a plea of not guilty, waived his right to a jury trial and proceeded to trial to the court upon the merits.

The evidence established that on October 10, 1962, Nahler went into the Su-Z-Q Tavern then owned and operated by Eddie and Lillian Penn to cash a check in the sum of $123.19 which was made payable to himself. Eddie Penn gave Nahler cash in exchange for the check. When Penn presented the check for payment on the Englewood State Bank, the drawee bank, the check was dishonored.

The check in question was made payable to Nahler in the amount of $123.19, drawn on the account of Terrazzo and Pre-Cast, numbered 1993 and the name thereon as drawer was Frank E. Clapp. The check in question had been stolen from Terrazzo and Pre-Cast and was admitted into evidence in the trial court as People's Exhibit A. The day before the check was stolen Frank Clapp had been introduced to and talked with the defendant.

On October 10, 1962 Terrazzo and Pre-Cast, a partnership composed of Frank Clapp and his brother, had an account with Englewood State Bank, a then existing bank in Englewood, Colorado.

Frank Clapp was the only person who was authorized to sign checks for and on behalf of Terrazzo and Pre-Cast. The signature card for Terrazzo and Pre-Cast at the Englewood State Bank evidenced that the person authorized to sign checks for the partnership at the bank was Frank S. Clapp. Clapp testified that he did not sign the check in question.

The defendant did not take the stand nor did he put on any evidence in his behalf.

The defendant offers four assignments of error for our consideration here: (1) The trial court erred in finding that Nahler signed the name of a non-existent person when he signed the name Frank E. Clapp. (2) The court erred in finding that the state proved that Nahler knew no such person as Frank E. Clapp existed at the time of the commission of the offense. (3) The People proved the defendant committed the offense of forgery and not the offense of uttering a fictitious check as alleged in the information. (4) The check was that of Terrazzo and Pre-Cast rather than that of Frank Clapp, and...