People v. Bagby, 85SA74

• Decision Date: 30 March 1987
• Docket Number: No. 85SA74,85SA74
• Citation: 734 P.2d 1059
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Insuk BAGBY, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1059

734 P.2d 1059

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Insuk BAGBY, Defendant-Appellee.

No. 85SA74.

Supreme Court of Colorado En Banc.

March 30, 1987.

Rehearing Denied April 27, 1987.

Barney Iuppa, Dist. Atty., Scott W. Storey, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Anthony A. Johnson, Colorado Springs, for defendant-appellee.

KIRSHBAUM, Justice.

The People appeal the judgment of the El Paso County District Court dismissing an information charging the defendant, Insuk Bagby, with the offense of offering a false instrument for recording in violation of section 18-5-114, 8B C.R.S. (1986). We affirm.

On September 6, 1984, the defendant filed an application and an individual history record with the El Paso County Clerk and Recorder requesting issuance of a hotel and restaurant liquor license for the Paradise Restaurant & Lounge in Colorado Springs. Both documents required answers to the question of whether the applicant ever had a "direct or indirect interest" in any Colorado liquor license. The defendant answered these questions "no." However, the defendant was at that time vice president and director of Oriental King Corp., which corporation owned the Oriental King Restaurant & Nite Club. ¹ On April 19, 1984, the restaurant had been granted a renewal of its hotel and restaurant liquor license.

Section 18-5-114 defines the offense of offering a false instrument for recording as follows:

Offering a false instrument for recording. (1) A person commits offering a false instrument for recording in the first degree if, knowing that a written instrument relating to or affecting real or personal property or directly affecting contractual relationships contains a material false statement or material false information, and with intent to defraud, he presents or offers it to a public office or a public employee, with the knowledge or belief that it will be registered, filed, or recorded or become a part of the records of that public office or public employee.

(2) Offering a false instrument for recording in the first degree is a class 5 felony.

The district court dismissed the information charging the defendant with a violation of this statute on the ground that the conduct constituted at best a misdemeanor violation of the Colorado Liquor Code (the Liquor Code), §§ 12-47-101 to -143, 5 C.R.S. (1985 & 1986 Supp.), and should have been so charged. Section 12-47-130, 5 C.R.S. (1985), provides that any person who violates any provision of the Liquor Code, or any of the rules and regulations authorized and adopted pursuant thereto, is guilty of a misdemeanor. ² Section 12-47- 129(4)(a), 5 C.R.S. (1985), provides in part that the state licensing authority "shall require a complete disclosure of all persons having a direct or indirect financial interest, and the extent of such interest, in each hotel and restaurant license issued under [the Liquor Code]." Regulation 47-107.1 of the Department of Revenue, 1 C.C.R. 203-2, provides that "[a]ll information submitted to any licensing authority, by application for license or otherwise, shall be given fully, faithfully, truthfully and fairly." ³

The defendant's conduct, as alleged, arguably violates Regulation 47-107.1 and section 12-47-129(4)(a). Section 12-47-130 defines such violations as misdemeanor offenses and establishes the punishment applicable to such misconduct. The People assert that the same alleged conduct violates section 18-5-114 and, therefore, may be charged as a distinct felony offense. The People rely on the provisions of section 18-1-408(7), 8B C.R.S. (1986), to support this argument. That statute states as follows:

If the same conduct is defined as criminal in different enactments or in different sections of this [criminal] code, the offender may be prosecuted under any one or all of the sections or enactments subject to the limitations provided by this section. It is immaterial to the prosecution that one of the enactments or sections characterizes the crime as of lesser degree than another, or provides a lesser penalty than another, or was enacted by the general assembly at a later date than another unless the later section or enactment specifically repeals the earlier.

It is well settled that enactment by the General Assembly of a specific criminal statute does not preclude prosecution under a general criminal statute unless a legislative intent is shown to limit prosecution to the special statute. People v. Westrum, 624 P.2d 1302 (Colo.1981); People v. James, 178 Colo. 401, 497 P.2d 1256 (1972); Hucal v. People, 176 Colo. 529, 493 P.2d 23 (1971); see Frink v. People, 103 Colo. 172, 83 P.2d 774 (1938). Under the circumstances here presented, the General Assembly has demonstrated its intent to limit prosecution for Liquor Code violations to the penalty provisions therein established.

In section 12-47-102(1) the General Assembly has declared that the Liquor Code is adopted as "an exercise of the police powers of the state for the protection of the economic and social welfare and the health, peace and morals of the people of the state." This broad language suggests that in adopting specific penal provisions in the Liquor Code, the General Assembly exercised the full police power of the state and considered the full range of possible sanctions in selecting those most appropriate for violations of the Liquor Code. The very structure of the Liquor Code, with its detailed descriptions of the licensing process and specific directions to licensing authorities concerning the exercise of regulatory power, further indicates a thorough legislative consideration of all aspects of the licensing process, including the fashioning of appropriate sanctions. The provisions of section 12-47-130, carefully defining different types of offenses with particularized references to specific provisions of the Colorado Criminal Code (the Criminal Code), §§ 18-1-101 to 18-1-108, 8B C.R.S. (1986), further evidence an intent to fully delineate in the Liquor Code itself the types of punishment available for violations of its provisions. See § 12-47-130(2)-(5). Finally, it is noteworthy that in a very few instances the General Assembly has provided specifically that some conduct prohibited by...