People v. Byrnes, 15808.

• Decision Date: 16 February 1948
• Docket Number: 15808.
• Citation: 190 P.2d 584,117 Colo. 528
• Parties: PEOPLE v. BYRNES.
• Court: Colorado Supreme Court

190 P.2d 584

117 Colo. 528

PEOPLE v. BYRNES.

No. 15808.

Supreme Court of Colorado, en Banc.

February 16, 1948

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Frank J. Byrnes was charged with misrepresentations to effect sales, and conspiracy to make misrepresentations to effect sales, of certain merchandise and service. The court directed the jury to return a verdict of not guilty on both counts and the district attorney brings error.

Ruling held erroneous and disapproved.

BURKE C.J., and HILLIARD, J., dissenting.

James T. Burke, Dist. Atty., Joseph A. Myers, Chief Deputy Dist. Atty., and Robert T. Kingsley, Deputy Dist. Atty., all of Denver, for plaintiff in error.

Byron G. Rogers, W. David McClain, and Edwin A. Williams, all of Denver, for defendant in error.

ALTER Justice.

In this case a two-count information was filed, charging Frank J. Byrnes with misrepresentations to effect sales and conspiracy to make misrepresentations to effect sales of certain 'merchandise and service.'

Defendant entered a plea of not guilty, and, upon trial, at the conclusion of the people's evidence, upon motion of counsel, the court directed the jury to return a verdict of not guilty on both counts. The district attorney brings the cause here under the provisions of section 500, chapter 48, '35 C.S.A., to have reviewed a question of law involved in the judgment.

In the first count in the information defendant is charged with a violation of the provisions of section 317, chapter 48, '35 C.S.A.; the second charged him and others with a conspiracy to violate the same.

The evidence disclosed that in June, 1945, defendant, under the name of the 'Historical Publishing Company,' actively engaged in a campaign to solicit subscriptions for a publication in book form to be known as 'Fighting Men of Colorado.' As a part of the sales campaign, defendant employed agents and solicitors who were provided by him with a brochure with pictures of men who were, or had been, in the armed forces of the United States during World War 2, together with a biographical sketch of such men, and also provided them with contracts fixing the sales price of the publication at $37.50. This price was for a complete edition of the book to be published, which would include one individual dedication page and an individual photograph, as well as a biographical sketch in one-sixth section of a page thereof. The sales price for the book was to be paid either in cash or with a small initial payment and monthly installments thereafter until the purchase price thereof was fully discharged. The contract provided by defendant contained, inter alia, the following:

'The Historical Publishing Company shall not be held responsible for any statement made by anyone not contained in its printed literature, but agrees that at any time Before 60 days of publication, should the proof of any misrepresentation be brought to our attention, we will refund your money for the full amount of contract.'

To those who paid their contract price in full as well as those who completed their subscription on the installment plan, the following certificate was issued:

'Certificate of Deposit

'This is to certify that there has been deposited in a Trust Fund by the undersigned, as Trustee, a sum of money, Twenty Per Cent in excess of written quotation on cost of publication of your subscription of _____ section in permanent form of 'The Fighting Men of Colorado,' said deposit having been made to guarantee publication and delivery of said edition to the subscribers, total deposits in this fund being subject to check to cover cost of said publication, in accordance with Trust Agreement covering said deposit.

* * *

* * *

'Issued at the request of Historical Publishing Company, guaranteeing contract with _____ for _____ section in said edition.

'Historical Publishing Company

'By ________'

On July 12, 1945, defendant, through one of his agents or solicitors, sold three contracts to the Nelson family, three of whose sons were in the armed forces of the United States, one thereof being at home at the time and who paid $37.50 with a cash discount of five per cent allowed him. A trust certificate was issued to him bearing that date. The agent or solicitor represented that the curator of the Colorado Historical Society was to edit the publication, which representation, if made, was false. By this trust certificate it was represented that a trust fund had been established, when, as a matter of fact, the trust fund, without any trust agreement pertaining thereto, did not come into existence until July 24, 1945. The evidence further disclosed that defendant had requested, at some undisclosed date, a Denver publisher to furnish him with quotations for his publication, yet no order for any publication was made until August 29, 1945, just a week after the district attorney interviewed defendant and began an investigation of his business and methods used in soliciting orders. Defendant furnished the publisher no copy whatever until about September 5, 1945, which was subsequent to his arrest, which occurred on August 24, 1945.

According to one of the witnesses, defendant stated that he had made arrangements for the publication of the edition. A representative of the publisher was called as a people's witness. He testified that defendant had requested an estimate of the cost of publication and had, on August 29, 1945, ordered '1750 Copies of your book [Fighting Men of Colorado] for $10,000.00.' The witness further testified: 'I told him [defendant] I would want $2500 to start, $2500 when we had the proofs, $2500 when it was off the press, and then the balance upon delivery.' The first payment on the publisher's contract was made on February 15, 1946, just eleven days Before the trial, which began February 26, 1946. This payment was in the amount of $2500, and was evidenced by check drawn on the trust account, leaving a balance therein of $54. The trust account, until September 4, 1945, was subject to withdrawal on the signature of the defendant only; on the latter date the signature of Dominic Lepore was authorized. August 2, 1945, $100 was withdrawn from the trust account for a purpose not disclosed by the record.

One witness testified that the agent or solicitor told her 'The Veterans of Foreign Wars was behind this [publication,' and upon this representation and in reliance thereon, she entered into a contract for the purchase of one edition of the publication and made a payment on her contract. Another witness stated that she purchased two editions for two of her sons and that she made the purchase on the representation that the curator of the Colorado Historical Society was to be the editor. Both witnesses called upon defendant, stated to him the misrepresentations detailed here, and demanded the return of their payments and the cancellation of their contracts, to which demand defendant answered in substance that he was not responsible for what his salesman had stated, and refused repayment.

Another witness testified that in an interview with defendant, the latter stated that their advertising was made through newspapers to attract inquiries concerning the 'Fighting Men of Colorado'; that the salesmen were then furnished with the leads originating in inquiries, and solicited subscriptions from the inquiries; and that the salemen all operated under his direction. Defendant further stated, as the witness testified, that it was necessary to become a subscriber Before one's picture and biographical sketch appeared in the publication, but subsequently he stated to the witness that the book would contain the names of all Colorado fighting men engaged in World War 2, without reference to payments or subscriptions.

The date of the offenses was alleged in the information as on or about the 26th day of June, 1945; the information was filed on the 24th day of August, 1945; and defendant was arrested on or about the last mentioned date.

There was evidence that defendant used newspaper advertising to attract inquiries; a brochure with pictures therein of men who had been or were in the armed forces of the United States, and a short biographical sketch thereof, which, for defendant's advertising purposes was gratuitously furnished; a written contract evidencing the purchase of an edition of the book proposed to be published; and the certificate of deposit set forth hereinabove.

At the conclusion of the people's evidence, defendant interposed a motion for a directed verdict of not guilty, and the motion was granted. If, the evidence considered, the trial court correctly ruled on said motion, its action must be approved; otherwise disapproved. The first count in the information was based upon section 317, chapter 48, '35 C.S.A., which, so far as pertinent to this case, reads:

'Any person, * * * who, with intent to sell or in any wise dispose of merchandise, securities, service, or anything offered by such person, * * * directly or indirectly, to the public for sale or distribution, * * * or to induce the public in any manner to enter into any obligation relating thereto, or to quiet title thereto, * * * makes, publishes, disseminates, circulates, or places Before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated, or placed Before the public, in this state, in a newspaper or other publication, or in the form of a book, notice, hand-bill, poster, bill, circular, pamphlet, or letter, or in any other way, an advertisement of any sort regarding merchandise, securities, service, or anything so offered to the public, which advertisement contains any assertion, representation or statement which is untrue, deceptive or

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