People v. Schneider

• Decision Date: 30 January 1956
• Docket Number: Nos. 17602-17604,s. 17602-17604
• Citation: People v. Schneider, 292 P.2d 982, 133 Colo. 173 (Colo. 1956)
• Parties: The PEOPLE of the State of Colorado, Plaintiff in Error, v. Emil M. SCHNEIDER and Walter B. True, Defendants in Error.
• Court: Colorado Supreme Court

Page 982

292 P.2d 982

133 Colo. 173

The PEOPLE of the State of Colorado, Plaintiff in Error, v. Emil M. SCHNEIDER and Walter B. True, Defendants in Error.

Nos. 17602-17604.

Supreme Court of Colorado, En Banc.

Jan. 30, 1956.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., George G. Priest, Dist. Atty., Lakewood, Richard N. Graham, Asst. Dist. Atty., Englewood, for plaintiff in error.

S. T. Anderson, Denver, for defendants in error.

KNAUSS, Justice.

The trial court on motion of defendants in error, quashed a series of indictments returned against them by a grand jury. From the ruling of the trial court in three of these cases the People are here by writ of error, seeking reversal. For convenience of all parties, the three cases have been consolidated. The defendants, at the times referred to, were County Commissioners of Jefferson County, Colorado.

On April 21, 1954 the District Attorney of the first judicial district filed in the district court a petition for a Grand Jury and on April 27, 1954 the court entered an order that a grand jury be impaneled to investigate charges set forth in the petition presented by the District Attorney wherein it was alleged that 'Charges and accusations have been made to the District Attorney of the first judicial district during a period of the last two months by citizens and residents of Jefferson County that there may have been violations of the criminal statutes of the state of Colorado by the Board of County Commissioners as a body politic and corporate and by county employees and by people doing business with them; * * *.' According to the record the grand jury was impaneled and proceeded to investigate these charges.

On June 14, 1954, under a subpoena duly issued the defendant Emil M. Schneider, one of the county commissioners and one whom the petition of the district attorney sought to investigate, was summoned to appear before said grand jury and to give testimony before that body. Walter B. True, another defendant, was likewise subpoenaed to appear on the same date to give testimony before the grand jury. Later, and on August 2, 1954, defendant Emil M. Schneider was by subpoena duces tecum directed to appear before the grand jury and produce certain records of the Board of County Commissioners of Jefferson County, Colorado and was subpoenaed to again appear on July 29, 1954 and August 9, 1954. Defendants Schneider the True appeared as required and gave their testimony. On October 2, 1954 the grand jury returned some twenty-two indictments involving four persons of whom defendants in error were two. Motions to quash the indictments were filed, and on January 11, 1955 the indictments were quashed.

Counsel for Schneider and True present six reasons why the motions were properly sustained. Of these six points we need consider only two. 1. The indictments did not state a crime under the laws of Colorado. 2. These defendants individually and collectively, were the subject matter of the investigation by the grand jury, and notwithstanding this fact they and each of them were compelled by subpoena to appear before said grand jury and testify and give 'testimony incriminating themselves without first being fully advised of their constitutional rights against self-incrimination, all contrary to the Constitution and Statutes of the state of Colorado and the Constitution of the United States.'

In case No. 17602 the indictment charged that defendants Schneider and True, being County Commissioners, did wilfully, illegally, feloniously and unlawfully loan ten thousand dollars of the monies of Jefferson County, Colorado, to the Karl F. Hehl Engineering Company; * * *.'

In cases numbered 17603 and 17604 the defendant True was charged in the first count with malfeasance in office in that between certain dates he had a private interest in land which was later subdivided as Lakewood Manor and Helding Subdivision 'which private interest was directly opposed to and conflicted with his duties as county commissioner and as a county officer.'

In the second count of indictments in cases 17603 and 17604 defendant True was charged with 'violation of his oath of office' for the same reasons as set forth in the first count of said indictments.

It is admitted that this indictment is predicated on C.R.S. '53, 40-19-4, which reads:

'No such officer, agent or servant shall loan out, with or without interest, any money or valuable security received by him, or which may be in his possession or keeping, or care or control, by virtue of his office, agency or service, or under color or pretense thereof, and any such officer, agent or servant, so loaning such money or valuable security, on conviction thereof, shall be punished * * *.'

At the time this statute was adopted in 1889 the following section, now C.R.S. '53, 40-19-5 was also adopted as a part of the enactment:

'If any such officer, agent or servant shall make any contract or agreement with any person or body corporate, or other association, by which such officer, * * * is to derive any benefit or advantage, directly or indirectly, from the deposit with such person or body corporate, or other association * * * such contract shall, as to such officer, agent or servant, be utterly null and void. * * *'

These sections of our law were considered in Moulton v. McLean, 5 Colo.App. 454, 39 P. 78, 81, where it was said:

'Sections 1249 and 1250 [now C.R.S. '53, 40-19-4 and 5] must be construed together to arrive at the intention of the legislature. An examination clearly shows such intention to have been to prevent the misapplication and use of public funds for the benefit and profit of the officer, to strictly prohibit the use of the money by the officer for speculative purposes and for his own gain. The sections in question are...