Pepper v. People

• Decision Date: 05 May 1924
• Docket Number: 10656.
• Citation: 225 P. 846,75 Colo. 348
• Parties: PEPPER v. PEOPLE.
• Court: Colorado Supreme Court

225 P. 846

75 Colo. 348

PEPPER v. PEOPLE.

No. 10656.

Supreme Court of Colorado

May 5, 1924

Department 3.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Sam Pepper was convicted of obtaining money by false pretenses and he brings error.

Affirmed.

S. Harrison White and Philip W. Mothersill, both of Denver, for plaintiff in error.

Russell W. Fleming, Atty. Gen., and Harold Clark Thompson, Asst Atty. Gen., for the People.

SHEAFOR J.

The defendant was convicted of the crime of obtaining by means of false pretenses, the sum of $4,250 in money from the McKee Live Stock Commission Company of the value of $4,250, and was sentenced to a term in the penitentiary. He brings the case to this court for review.

The false pretense alleged was that on the 19th day of February, 1920, at the city and county of Denver, the defendant falsely represented to the McKee Live Stock Commission Company that he had on that date purchased 39 head of steers for the sum and price of $4,250, and that the cattle so purchased were the property, and in the possession, of the person from whom he purchased them at Westcliffe, Colo.; that the cattle would be loaded and shipped the following Monday to the McKee Commission Company at Denver, Colo, for sale by it on commission; and that defendant had already given the person from whom he purchased the cattle a draft for $4,250, on the commission company, in payment for the cattle, signed B. Pepper & Co.

It appears from the record that for some 10 or 12 years prior to February, 1920, the defendant had been doing business with the McKee Live Stock Commission Company in the way of buying cattle and shipping them to the McKee Company to be sold by it on commission, paying for the cattle he purchased with drafts drawn on and paid by the commission company. On February 9, 1920, the defendant was owing the commission company about $10,817.77, which was unsecured, and also owed them for cattle that were in the country, upon which he had given the commission company a mortgage, as security, and on that day defendant and the McKee Commission Company, through Charles R. McKee, had a settlement of their affairs. In the conversation at that time McKee told the defendant that the company would not pay any more drafts drawn by the defendant, unless defendant had the cattle and had them ready to ship and shipped them, so that the cattle would arrive at the stockyards at the same time the draft would; that thereafter he would pay no drafts that were made payable to the bank at Westcliffe; that defendant must make the drafts payable to the person from whom he purchased the cattle, and on the drafts it must be stated for what he was paying; and defendant said in reply that thereafter he would do as McKee required. At that time, in settlement of the $10,817.77 unsecured indebtedness, owed by defendant to the commission company, he gave the company two checks, one for $6,000 and one for $4,817.77 drawn on the Tomkins bank at Westcliffe. The $4,817.77 check was deposited by the McKee Company February 10, and the $6,000 check February 14. On February 19 defendant called McKee on the 'phone from Westcliffe, and McKee testifies that in the 'phone conversation defendant told McKee he had bought about two loads of steers; that he had them at Westcliffe and could not ship them on account of the car situation; that he had drawn a draft for $4,250 in payment of the steers, and asked McKee to pay the draft; and that he would ship the cattle the following Monday. McKee at first refused, but finally consented, saying to defendant that, if he had already bought the cattle, and had paid for them with the draft, and would promise to ship them the next Monday, he, McKee, would pay the draft. The draft came on the 21st day of February, was drawn in favor of Floyd Thompson, and was paid by the commission company to the First National Bank in Denver. The draft had a marginal notation showing that it was given in payment for 39 3 year old steers. No steers were ever received by the McKee Commission Company for the $4,250 draft. McKee stated, in answer to a question as to what reliance he placed upon the writing upon this draft, that he had relied upon 'February 19, 1920, $4,250, for 39 head of 3 year old steers, purchased from Floyd Thompson.' He testified that he did not know who Floyd Thompson was at that time, and did not know that he was the cashier of the Tomkins bank; that he believed him to be the owner of the 39 head of steers and had sold them to Pepper. The evidence further shows that at that time Floyd Thompson was assistant cashier of the Tomkins bank at Westcliffe; that he did not own any cattle on February 19, and never had owned any, and that he sold none to Pepper. The evidence further shows that the proceeds of the $4,250 draft were deposited in the bank at Westcliffe, to the credit of defendant, and applied, together with other money of defendant on deposit in the Westcliffe bank, to the payment of the $6,000 check which had previously been given by defendant to the McKee Commission Company, and Thompson testified that without the proceeds of that draft the $6,000 check could not be paid.

The principal defense relied upon by the defendant is that the evidence was wholly insufficient to justify a verdict of guilty, and that the court should have sustained his motion for a directed verdict. Defendant testified that at the time of his 'phone conversation with McKee on February 19 he had bought the cattle and had them when he drew the draft; that they were purchased from James Belknap; that they consisted of 39 3 year old steers; that he had paid for them with a check on the Tomkins bank; that the amount paid for them was over $4,000 and not over $4,250.

Thompson testified that on February 18 the bank paid one of Pepper's checks for approximately $4,800, but did not remember whether it was payable to a cattleman or not. The testimony of Thompson, corroborated by the ledger sheet of the bank, shows that only one check of defendant for $4,817.77 was paid by the bank during the month of February, and that was paid February 18; that there was no check of defendant for an amount over $4,000 and not over $4,250 paid during that month,...