People v. Swanson, 14924.

• Decision Date: 27 April 1942
• Docket Number: 14924.
• Citation: 109 Colo. 371,125 P.2d 637
• Parties: PEOPLE v. SWANSON et al.
• Court: Colorado Supreme Court

125 P.2d 637

109 Colo. 371

PEOPLE v. SWANSON et al.

No. 14924.

Supreme Court of Colorado, En Banc.

April 27, 1942

Error to District Court, City and County of Denver; George F Dunklee, Judge.

J. S Swanson and W. A. Peterson were jointly indicted for perjury and, to reverse a judgment of dismissal on motions to quash the People of the State of Colorado bring error.

Judgment affirmed as to the first count and reversed as to the second and cause remanded with directions to reinstate as to the second count and proceed as by law provided.

James T. Burke, Dist. Atty., John A. Carroll, Dist. Atty., Anthony F. Zarlengo, Chief Deputy Dist. Atty., and Thomas H. Ryan, Deputy Dist. Atty., all of Denver, Byron G. Rogers, Atty. Gen., Reid Williams, Asst. Atty. Gen., Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for plaintiff in error.

Emmett Thurmon, of Denver, for defendants in error.

BURKE Justice.

Defendants were jointly indicted for perjury. They appeared by separate counsel. To reverse a judgment of dismissal on motions to quash the People prosecute this writ.

The indictment was in two counts and the grounds of the motions were, as we interpret, (1) misjoinder of counts; (2) want of facts; (3) ambiguity. The motions were sustained 'for reasons set forth in the arguments and motions herein.' Further the record does not advise us. The assignments simply state that there was error 'in sustaining the motions to quash' and 'in dismissing the case and in discharging the defendants.'

(1) The two counts are admittedly based upon the same facts and their recitals are almost identical. The first charges perjury under section 142 of chapter 48, '35 C.S.A., which is the usual statutory definition of the crime and specification of the penalty. The second charges a violation of section 143, id., which reads: 'Any person who shall sign any false written statement, and wilfully and corruptly make oath to or affirm the same Before any officer having the right to administer oaths, shall be guilty of perjury, and shall be punished accordingly.'

If defendants did the thing with which they are charged (assuming that certain erroneous statutory references in the indictment are not fatal, a point later examined herein), they are guilty under both sections. That under such circumstances the two counts may be joined is supported by common law, express enactment, reason and authority. Sec. 450, chap. 48, '35 C.S.A., Bergdahl v. People, 27 Colo. 302, 61 P. 228; Crane v. People, 91 Colo. 21, 11 P.2d 567.

(2) Section 448, chapter 48, '35 C.S.A., provides that to justify a true bill for perjury at least two witnesses Before the grand jury 'to the same fact shall be necessary.' It is contended that compliance with that mandate must appear on the face of the indictment. The point is without merit. In this, as in many other similar particulars, the presumption of regularity pertains. No authority to the contrary is cited and we assume none exists. In most jurisdictions a grand jury must consist of twelve members and nine must concur in a true bill, but such recitals in an indictment are unnecessary to its validity. Cook v. State, 109 Ark. 384, 160 S.W. 223. As a general rule a motion to quash goes only to matters appearing on the face of the record, and extraneous facts can not be inquired into thereunder. Commonwealth v. Fredericks, 119 Mass. 199, 204; People v. Clifford, 105 Colo. 316, 98 P.2d 272.

(3) Swanson was vice-president and Peterson secretary-treasurer of the International Mutual Liability Insurance Company. Section 22, chapter 87, '35 C.S.A., made it mandatory for the company, on or Before March 1 each year, to file with the Commissioner of Insurance a report 'signed and sworn to by its chief officers, of its condition on the preceding thirty-first day of December, which shall include a detailed statement of assets and liabilities, the amount and character of its business transacted, and moneys received and expended during the year, * * *,' etc. Section 13, id., made it mandatory for the company at the same time to file a statement 'under oath upon a form to be prescribed and furnished by the commissioner, stating the amount of all premiums collected or contracted for in this state or from residents thereof, * * * the amounts actually paid policyholders on losses and the amounts paid policyholders as returned premiums by fire insurance companies; the amount of insurance reinsured in other companies authorized to do business in this state, * * *,' etc. Further quotation from said sections is unnecessary. It is clearly apparent that the requirements are distinct and that only the statement provided for in said section 13 is required to be upon a form furnished by the Commissioner.

In the first count of the indictment it is charged that the company 'was required by law to make and file with the Insurance Commissioner, annually, a statement, under oath, on the forms prescribed by the commission, pursuant to chapter 87, section 13' etc., and that defendants 'did willfully, knowingly, corruptly, falsely and feloniously swear and affirm as follows, to-wit.' Here follows a statement of facts wholly unrelated to...