People v. Godding
| Decision Date | 03 November 1913 |
| Citation | 55 Colo. 579,136 P. 1011 |
| Parties | PEOPLE v. GODDING. |
| Court | Colorado Supreme Court |
Rehearing Denied Dec. 1, 1913.
En Ban. Error to District Court, Otero County; J. E. Rizer, Judge.
An information charging John E. Godding with a violation of the banking laws was quashed on motion, and the People bring error. Reversed and remanded, with directions.
John W Davidson, Dist. Atty., of Pueblo, and A. B. Wallis, Deputy Dist. Atty., of La Junta, for the People.
Glenn & Gobin, of Rocky Ford, and John H Voorhees, of Pueblo, for defendant in error.
The information for consideration is laid under Section 81 of an act in relation to banks and banking, being Section 345 of Revised Statutes of 1908, as follows:
'If any banker or any president, director, manager, cashier, or other officer, or any agent, clerk or employé, of any banker, bank or banking institution, doing business in this state, shall receive or assent to the reception of any deposit of money or other valuable thing by such banker or in such bank or banking institution, or if any such banker officer or agent, shall create or assent to the creation of any debts or indebtedness by such banker, bank or banking institution, in consideration or by reason of which indebtedness any money or other valuable property shall be received by such banker, or into such bank or banking institution, after he shall have had knowledge of the fact that such banker, bank or banking institution is insolvent, he shall upon conviction thereof be punished by a fine not exceeding five thousand dollars, or by imprisonment in the penitentiary not exceeding five years, or by both such fine and imprisonment, in the discretion of the court.'
It was filed June 27th, 1910, and charges that the offense was committed on the 17th day of December, 1907. Defendant filed a motion to quash on the ground that the offense charged is shown on the face of the information to have been committed, if at all, more than eighteen months before the prosecution was begun and is therefore barred by limitation. Section 1949, Revised Statutes of 1908, is as follows:
'No person or persons shall be prosecuted, tried or punished for any offense denominated a felony as defined by the constitution of the state of Colorado (), unless the indictment for the same shall be found by a grand jury, or unless the information or complaint for the same shall have been filed within three years next after the offense shall have been done or committed; nor shall any person be prosecuted, tried or punished, for any misdemeanor or other indictable offense below the grade of felony, or for any fine or forfeiture under any penal statute, unless the indictment, information or complaint, or action for the same, shall be found or instituted within one year and six months from the time of the committing of the offense or incurring the fine or forfeiture.'
The issue is whether the offense charged is a felony, as contended by the state, with the period of limitation fixed at three years, or whether it is a misdemeanor, as contended by the defendant in error, where the period of limitation is one year and six months. The court below held it to be a misdemeanor and that the action was barred, sustained the motion to quash, and discharged the defendant. The people bring the case here to have it determined whether the above statute creates an offense which is a felony under the law.
The people contend that because of the punishment prescribed, the offense was and is a felony. They rely, to support this contention, upon Section 4, Article 18 of the constitution, which is as follows:
'The term felony, wherever it may occur in this constitution, or the laws of the state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other.'
If the offense is a felony the trial court was wrong in quashing the information and entering a judgment discharging the defendant, and the same must be reversed; if it is a misdemeanor, then the judgment is right and should be affirmed.
As we understand the contentions of counsel for defendant in error, they are: First. That section 4 of Article 18 neither creates nor defines a felony, but is merely a rule of construction of the word 'felony' wherever it is found, either in the constitution or the statutes; Second. That the word 'punishable' should be strictly construed and held to mean absolutely so punishable, and since Section 345, supra, provides for a fine or imprisonment in the penitentiary, the offense is thereby reduced from the grade of felony to that of misdemeanor; and, Third. That the words 'and none other' limit the definition of the term, where used in the constitution, exclusively to the two modes of punishment, and since the statute provides for alternative punishment, fine or penitentiary imprisonment, in the discretion of the court, the offense is but a misdemeanor, to conform to the lower penalty that might be imposed.
However persuasive and forceful the argument may be on the proposition that this section neither creates nor defines a felony, we are nevertheless unable to accept the conclusion, in view of the decisions of this court, the first of which was rendered more than twenty-five years ago, directly and specifically holding the contrary.
In re Lowrie, 8 Colo. 499, at page 501, 9 P. 489, at page 490 (54 Am.Rep. 558), the court speaking to this proposition said:
'The statutory punishment for the offense of which the petitioner was convicted, grand larceny, is confinement in the penitentiary for a term not less than one nor more than ten years. The petitioner was, therefore, convicted of a felony, as the term is defined by section 4, article 18, of the constitution, which is: 'The term 'felony,' wherever it may occur in this constitution, or by the laws of this state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other.''
In City of Greeley v. Hamman, 12 Colo. 94, on page 95, 20 P. 1, on page 2, the court says:
"A crime or misdemeanor consists in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention or criminal negligence.' Since felonies are defined in the Constitution to be offenses punishable by death or imprisonment in the penitentiary, it follows that, under the foregoing statute, misdemeanors are violations of the public laws not thus punishable.'
In Brooks v. The People, 14 Colo. 413, on page 414, 24 P. 553, the following was said:
'And under our constitution the test by which to determine whether an offense less than capital shall be deemed a felony or a misdemeanor is made to depend upon whether the same is punishable by imprisonment in the penitentiary or in the county jail.'
In Williams v. The People, 26 Colo. 272, on page 275, 57 P. 701, on page 702, the court said:
'Under our constitution, article 18, section 4, a felony is any criminal offense punishable by death or imprisonment in the penitentiary; and an act that is done feloniously is one that is done with a more or less deliberate purpose or intent to commit a crime of the nature of a felony.'
From the foregoing it is manifest that this court has expressly recognized this section as a definition of the term felony, and that the test by which to determine whether an offense is a felony is by the punishment prescribed. No sufficient fact, reason or argument has been advanced why the rule already announced in this respect should be overturned, nor have we the slightest inclination to do so.
To the further contention, that the term 'punishable' as used in this section should be construed to mean absolutely thus punishable, and that where a statute prescribes an alternative penalty, of fine or penitentiary imprisonment, in the discretion of the court, then the offense is a misdemeanor, we have only to say that it is against the overwhelming weight of authority. In Encyclopedia of Law, 2nd Ed. Vol. 8, page 281, it is...
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...Id. at 843. 13 In reaching its decision, the court in Jaramillo failed to include among the authorities cited People v. Godding, 55 Colo. 579, 136 P. 1011 (1913) (En banc ), which interpreted an article of the Colorado Constitution defining the term "felony" to mean any criminal offense pun......
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