People v. Piskula, 28191

• Decision Date: 13 February 1979
• Docket Number: No. 28191,28191
• Citation: 595 P.2d 219,197 Colo. 148
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert PISKULA, Jr., Defendant-Appellee.
• Court: Colorado Supreme Court

Page 219

595 P.2d 219

197 Colo. 148

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert PISKULA, Jr., Defendant-Appellee.

No. 28191.

Supreme Court of Colorado, En Banc.

Feb. 13, 1979.

William D. Harmsen, Jr., Dist. Atty., Reid C. Pixler, Deputy Dist. Atty., Delta, for plaintiff-appellant.

Woodrow, Roushar, Weaver & Withers, Victor T. Roushar, Montrose, for defendant-appellee.

ROVIRA, Justice.

The People appeal the trial court's order granting the defendant's pre-trial motion to dismiss both counts of the information for felony theft under section 18-4-401, C.R.S.1973. The trial court held that the action constituted a criminal prosecution for a civil debt in violation of Colo.Const. Art. II, Sec. 12. We reverse and remand for further proceedings.

In February of 1977 the defendant contracted with Roland and Virginia Beaver (Beavers) to construct a residence. In April of that year the defendant presented the Beavers with a bill which included an itemized list of materials used in the construction of the house. That bill totaled $12,011.45 and was paid in full to the defendant by the Beavers.

The People allege the following facts: that the defendant falsely represented that he was the materialman who had provided the items listed in the bill when in fact Grand Mesa Lumber Company was the materialman; that the actual cost of the items was $11,111.45; that the $900.00 difference between the cost of the items and the price charged the Beavers for the items was a deliberate overcharge; that no portion of the $12,011.45 has been given to the Grand Mesa Lumber Company or returned to the Beavers.

Count I of the information charged the defendant with felony theft of the $11,111.45 under section 18-4-401, C.R.S.1973. Count II of the information charged the defendant with felony theft of the $900.00 under the same statute.

A coordinate statutory basis for count I, as alleged by the People, is section 38-22-127, C.R.S.1973, which provides in pertinent part:

"(1) All funds disbursed to any contractor or subcontractor under any building, construction, or remodeling contract or any construction project shall be held in trust for the payment of the subcontractor, material suppliers, or laborers who have furnished materials, services or labor, who have a lien, or may have a lien, against the property, or who claim, or may claim, against a principal and surety under the provisions of this article and for which such disbursement is made.

"(5) Any person who violates the provisions of subsections (1) and (2) of this section commits theft, as defined in section 18-4-401, C.R.S.1973."

The trial court dismissed both counts on the basis that the information constituted a criminal prosecution for a civil debt as prohibited by Colo.Const. Art. II, Sec. 12, which states:

"No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors in such manner as shall be prescribed by law, or in cases of tort or where there is a strong presumption of fraud."

The issue raised in this appeal is whether or not this prosecution under section 18-4-401, C.R.S.1973, violates the constitutional provision cited above.

Both the People and the defendant submit citations to cases and law dictionaries construing the word "debt" to fit their respective positions. We find it unnecessary to consider the proper definition of that word, for the crucial inquiry in construing Colo.Const. Art. II, Sec. 12, with section 18-4-401, C.R.S.1973, under the facts of this case is not the definition of debt but rather the existence of fraud.

The critical factor in determining whether or not a criminal prosecution falls within the fraud exception to this constitutional prohibition is the existence of the intent to defraud as an element of the offense. In People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972), we held that a prosecution under C.R.S.1963, 40-14-20, as amended by Colo.Sess.Laws 1970, ch. 48 (the bad check statute), violated this constitutional provision because the intent to defraud was not a requisite element of the offense. By...