Phenneger v. People, 12133.

• Citation: 85 Colo. 442, 276 P. 983
• Case Date: March 11, 1929
• Court: Supreme Court of Colorado

276 P. 983

85 Colo. 442

PHENNEGER v. PEOPLE.

No. 12133.

Supreme Court of Colorado

March 11, 1929

Rehearing Denied April 29, 1929.

Department 1.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

F. G Phenneger was convicted of embezzlement and he brings error.

Affirmed.

Lewis de R. Mowry and Robert D. Charlton, both of Denver, for plaintiff in error.

William L. Boatright, former Atty. Gen., William W Gaunt, Asst. Atty. Gen., Robert E. Winbourn, Atty. Gen., and Sidney P. Godsman, Asst. Atty. Gen., for the People.

ALTER J.

F. G Phenneger, plaintiff in error, hereinafter refered to as defendant, was tried and convicted of the crime of embezzlement, and sentenced to the penitentiary for a term of years. To review that judgment, he prosecutes this writ, and relies upon ninety-three assignments, which may be classified as follows: (1) Refusal of court to segregate witnesses; (2) prejudicial remarks of court, made in the presence of the jury; (3) admission of improper and immaterial evidence; (4) admission of improper rebuttal evidence; (5) refusal to direct a verdict of not guilty; (6) undue restriction of cross-examination; (7) inproper evidence as to values; (8) improper evidence as to reputation; (9) giving, and refusal to give, certain instructions.

The information in this case, filed by the district attorney on February 25, 1928. charges:

'That F. G. Phenneger on, to-wit, the first day of March in the year of our Lord nineteen hundred and twenty-seven at the City and County of Denver aforesaid, in the State of Colorado, was the agent, to-wit: President of American Tax Company, a corporation, and that by virtue of his employment as such agent the said F. G. Penneger did then and there have in his possession and under his care two thousand five hundred dollars in money of the value of two thousand five hundred dollars of the moneys, goods and personal property of the said American Tax Company, a corporation, and that while so in possession thereof, the said F. G. Phenneger without the consent of said American Tax Company, a corporation, did then and there feloniously embezzle and fraudulently convert to his own use the said two thousand five hundred dollars in money and so the said F. G. Phenneger then and there, in manner and form aforesaid, the said two thousand five hundred dollars in money of the value of two thousand five hundred dollars of the moneys, goods and personal property of the said American Tax County, a corporation feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Colorado.'

The evidence in this case discloses that the defendant organized the American Tax Company, a Colorado corporation, in 1925, and immediately upon its organization became, and until March, 1928, was, its president and general manager.

The American Tax Company was incorporated for $1,000,000, and its stock consisted of 1,000,000 shares of the par value of $1.

At the first meeting of its board of directors, the defendant proposed to transfer to the company certain property in exchange for 50,000 shares of the capital stock of the company. This proposal was accepted and the transfer made.

It was necessary to arrange for financial assistance in the organization and promotion of the company and the selling of its stock. This the defendant arranged to provide, and, as compensation therefor, he was to receive 5 per cent. of the receipts from stock sales. Later on in the history of the company, in addition to the commission on sales, the defendant received a salary from the company.

Some time after the organization of the company, the defendant began to draw money in excess of his commission and salary. The secretary of the company, prior to March 31, 1927, called the defendant's attention to the fact that he had overdrawn his account about $30,000. The defendant attempted to balance this $30,000 overdraft by returning to the treasury 30,000 shares of his stock in the company.

On March 1, 1927, the defendant caused the company's check for $2,500 to be drawn to his order. After the check was signed by the defendant as president, and countersigned by the secretary, the defendant cashed it. This is the basis of the charge in this criminal case.

The defendant testified that his practice of drawing money, in excess of that actually due him for salary and commissions, was with the knowledge and consent of the board of directors of the company, and was done by him in perfect good faith, and without any attempt at concealment--all of which is emphatically denied by the members of the board.

We should also state that the account of this defendant, on the company's books, appears to be in perfect balance, but this balance was accomplished by the return of stock, as mentioned above.

We shall now proceed to consider the assignments of error in the order mentioned above.

1. At the commencement of the trial, before the opening statements had been made, and before any witnesses had been sworn, the following occurred:

'Mr. Mowry: At this time I would like to move to have the witnesses segregated.

'The Court: Unless there is some particular reason for it, Mr. Mowry, the motion will be denied.

'Mr. Mowry: I have a particular reason, or I wouldn't make the motion.

'The Court: The motion will be denied.

'Mr. Mowry: Does your Honor want to hear my reasons?

'The Court: You may state them, certainly.'

Thereupon, and out of the hearing of the jury, Mr. Mowry made the following statement: 'The reason assigned for my motion is that part of the defendant's defense is based on the fact that there is a conspiracy between Maudru and Doherty, who is the complaining witness, and other directors, to lay the blame for the condition of the company upon the defendant.

'The Court: The court will rule that the witnesses in this case will not be separated or sequestered, for the reason that it does not think there is any necessity for it.

'Mr. Mowry: We save an exception.'

In Short v. People, 27 Colo. 175, 186, 60 P. 350, 354, Mr. Chief Justice Campbell, delivering the opinion of the court, said:

'In criminal as in civil trials presumptions of the correctness of the rulings of the trial court and of the regularity of the proceedings below, are indulged by a court of review, and the burden of showing prejudicial error rests upon him who asserts it. * * *'

In Kelly v. People, 17 Colo. 130, 132, 29 P. 805, 806, Mr. Justice Elliott, speaking for this court, said:

'The examination of witnesses out of the presence and hearing of each other is sometimes a valuable aid to the discovery of truth and the furtherance of justice. The exclusion of witnesses from the court-room during the trial is a matter resting in the sound judicial discretion of the trial court.'

In Rogers v. People, 76 Colo. 181, 183, 230 P. 391, 392, Mr. Justice Allen, speaking for the court, said:

'The contention most urged is that the court erred in overruling defendant's motion to exclude witnesses from the court room. * * * However, in this state this court has held that this is a matter resting in the sound discretion of the court. Kelly v. People, 17 Colo. 130, 29 P. 805. In the instant case the court could have denied the motion in the exercise of its discretion.'

Counsel for defendant say in their brief, 'There was absolutely no reason for the court not to exclude the witnesses,' and '* * * all the directors of the company who testified at the trial and were on the board at the time of the transaction here in question, testified alike. * * *' It is not sufficient to say that there was no reason why the court should not have excluded the witnesses, but it was all important to show some good and valid reason why the witnesses should be excluded. We are not willing to assume that, because men testify substantially alike, they have been influenced by the testimony of other witnesses, or perhaps, are perjuring themselves.

The defendant has wholly failed to show that the was in any manner injured or prejudiced by the court's ruling upon his motion, nor has he shown any abuse of discretion.

2. The defendant complains of certain remarks made by the court during the progress of the trial, and in the presence of the jury. The witness Heider, who was secretary-treasurer of the company while the defendant was president, was being examined by the district attorney with reference to the defendant's account with the company, especially concerning certain debits and credits appearing therein. The particular remarks, of which defendant now complains, are as follows:

'Mr. Cline: Q. Then there was an agreement between you and Mr. Phenneger? A. There was no private agreement between the two of us.

'Mr. Mowry: I object.

'The Court: I assume you are interested in having the facts developed. He may answer the question.

'Mr. Mowry: I save an exception.'

We direct attention to the lack of proper objection, but will assume that the record is such as to require us to review the error assigned by reason on the remarks of the trial court.

'During the trial, the judge should refrain from making any unnecessary comments which might tend to a result prejudicial to a litigant, and when calculated to influence the minds of the jury, such remarks constitute ground for reversal. Nevertheless, not every unguarded remark of a trial judge, in the presence of the jury is ground for reversal. To be so, it must be shown to be prejudicial to the rights of the party complaining, or at least appear probable that prejudice resulted. It is not enough that there is a possibility that the remarks were...