Norman v. People, s. 22627

• Decision Date: 24 April 1972
• Docket Number: 23306,Nos. 22627,s. 22627
• Citation: 178 Colo. 190,496 P.2d 1029
• Parties: George I. NORMAN, Jr., et al., Plaintiffs in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 1029

496 P.2d 1029

178 Colo. 190

George I. NORMAN, Jr., et al., Plaintiffs in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

Nos. 22627, 23306.

Supreme Court of Colorado, En Banc.

April 24, 1972.

Morrato, Gueck & Colantuno, James J. Morrato, Edward H. Sherman, Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.

JACK F. SEAVY, District Judge. ^*

This matter first came here under No. 22627. We remanded it to the trial court for consideration of a motion for relief on the ground of newly discovered evidence. The trial court denied this motion and that denial is before us in proceeding No. 23306. We ordered the two writs of error consolidated.

The defendants were convicted of false pretenses and conspiracy. The attorney general concedes that the evidence was not sufficient to convict the defendant Helgeson on false pretenses. We agree. We reverse the convictions and remand the case for a new trial as to all the defendants on the charge of conspiracy, and as to defendants Norman and Swanson on the charge of false pretenses.

The amended information contained six counts, as follows:

Count 1--conspiracy to commit confidence game.

Count 2--confidence game.

Count 3--false pretenses.

Count 4--false pretenses (of which the defendants were convicted).

Count 5--conspiracy to commit false pretenses.

Count 6--conspiracy to commit false pretenses (of which the defendants were convicted).

Immediately after the jury was selected the court required the district attorney to elect between certain counts and as a result of such election, Counts 3 and 5 were dismissed. At the conclusion of the People's case, the court entered judgments of acquittal as to Counts 1 and 2.

The original information contained Counts 1 and 2. Eight months after the filing of the original information and on the day prior to the trial date the court granted a motion of the district attorney to amend the information and added Counts 3, 4, 5 and 6. Defendants requested a continuance and time to file motions directed against the new counts. A continuance was granted, but only for one week, and the request for time to file motions was denied.

Count 2 charged the defendants and others with a confidence game allegedly occurring on September 8, 1965. The alleged victims were members of the Fossum family and the Fossum Foundation, Inc. The factual situation giving rise to such charge involved the sale by defendants and purchase by the victims of certain real property located in Jefferson County and described at the trial as Troutdale in the Pines. The victims intended to purchase the property to be used to establish a religion-oriented college. The allegation is that the defalcations of the defendants resulted in the victims' being defrauded of approximately $65,000. The greater part of the evidence presented at trial concerned this transaction.

Count 4 charged the defendants with false pretenses, the alleged offense occurring on August 13, 1965. The facts giving rise to such charge involved the sale of a radio station known as KICM. It is alleged that the Fossum family and the Fossum Foundation were defrauded of $10,000, which was supposedly needed by defendants to effectuate the transfer to the purchasers of the license to operate the station.

It is apparent from the summary of the allegations set out in Counts 3 and 4 that the alleged victims of both crimes were the same. However, there the similarity ends. The same persons are not charged in both offenses, although we realize identity of defendants was not required by Crim.P. 8 as it existed at the time this case was filed. Material differences exist as to the date of each offense, the amount of money involved, and the factual transactions specified in each count. Joinder under such circumstances was not sanctioned by Rule 8.

A fair trial is necessary to satisfy due process requirements of the federal and state constitutions. People v. Abrahamsen, Colo., 489 P.2d 206 (1971); Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962). The trial court breached the constitutional concepts of fundamental fairness by compelling defendants to stand trial on the combination of counts above set forth. The refusal of the court to grant defendants' request for a severance for trial requires reversal for a new trial.

While our comments on this point have been directed to Counts 2 and 4, the same reasoning applies to the companion conspiracy charges contained in Counts 1 and 6, respectively.

The trial in this case took fifteen days. The clerk's record and the reporter's transcript consist of over 1500 pages. Some 160 documents were marked as exhibits, and most of them were admitted in evidence. The briefs filed by the parties in this court exceed 500 pages. Numerous points were raised by the defendants which will not be discussed herein. This is not to say that such matters have not been examined by this court. However, discussion of all the points raised would serve only to unnecessarily lengthen this...