Raymond v. People
| Decision Date | 27 June 1892 |
| Citation | 30 P. 504,2 Colo.App. 329 |
| Parties | RAYMOND et al. v. PEOPLE. |
| Court | Colorado Court of Appeals |
Error to district court, Arapahoe county; GEORGE ALLEN, Judge.
George R. Raymond and James P. Hadley, having been convicted of forgery, bring error. Reversed.
The other facts fully appear in the following statement by RICHMOND, P.J.:
The defendants, George R. Raymond and James P Hadley, were indicted for forging and uttering an alleged city warrant. There were 12 counts in the indictment, and each count substantially sets forth, in terms and figures the warrant which it is alleged was forged and uttered. The warrant is in the following words and figures:
The indictment charges that the defendants did feloniously and falsely alter the said warrant for the payment of money, by then and there feloniously and falsely writing in and upon the said warrant for the payment of money the figures "30" immediately preceding the figures "3.50," and writing the words "three hundred" immediately preceding the word "three," so that the said warrant for the payment of money thereby became, and then and there was, of the tenor following:
--With intent then and there to damage and defraud the city of Denver.
The third count of the indictment charges the felonious uttering and passing, as true and genuine, the warrant so feloniously forged and altered and counterfeited for the payment of money. Each and every other count in the indictment is substantially similar, and it is sufficient to say that they embrace the words and figures of the warrant above recited. The indictment was returned into court by the grand jury, signed by the district attorney, I.N. Stevens, and by James G. Belford and Caldwell Yeaman, special counsel, and was duly indorsed "A true bill" by John L. Dailey, foreman of the grand jury.
Before pleading to the indictment, defendants interposed a motion to quash, in which it is recited that all the proceedings before the grand jury, including the taking of testimony, were controlled by the special counsel, Belford and Yeaman, neither of whom were then and there the district attorney of such district, and neither of whom were then and there duly appointed and qualified district attorneys or deputy district attorneys, and neither of whom had any authority or lawful right to appear as attorney or representative of said people in taking the testimony before the said grand jury while said grand jury were deliberating upon said indictment, and neither of whom then and there duly appointed were qualified in any way or manner to represent the people as required by statute, and neither of whom had been employed or appointed by the county commissioners of any county to appear and prosecute; that I.N. Stevens, the district attorney, was the duly elected and qualified district attorney for the second judicial district, and that he or his deputies did not appear before the grand jury which heard the testimony in said cause and presented said indictment; that he was neither sick nor absent nor interested in the case, nor incapacitated in any way or manner from discharging or performing the duties of said office, and had not declined or refused to prosecute said cause, and that the appointment of said Belford and Yeaman as special counsel by the court was without authority or warrant of law. The defendants also challenged the array of the grand jury, on the ground that the same had not been properly drawn, selected, and impaneled. The motions and challenges were met in proper form by the people and overruled by the court. Thereafter special demurrers to the indictment were interposed, which were overruled. The cause was tried to a jury, and resulted in a general verdict of guilty. Motions for a new trial and in arrest of judgment were overruled, and the defendants sentenced to hard labor in the penitentiary for a period of five years. To reverse the judgment of the court below this writ of error is prosecuted.
Thirty-seven errors are assigned upon the record, but for the purposes of this opinion they can be embraced under five heads: First, the insufficiency of the indictment; second, the legality and authority of special counsel to appear before the grand jury, and in the prosecution of the case; third, the error of the court in admitting testimony on the part of the plaintiff over the objections of defendants, fourth, error of the court in admitting various exhibits offered by the people in evidence over the objections of defendants, and in permitting the jury to take the various exhibits when they retired to consider their verdict; fifth, error in the instructions. The cause was submitted upon briefs and oral argument.
F.C. Goudy, A.M. Stevenson, S.B. Berry, and C.D. May, for plaintiffs in error.
Joseph H. Maupin, Atty. Gen., Caldwell Yeaman, James B. Belford, Thomas Ward, Jr., and H.B. Babb, for the State.
RICHMOND, P.J., (after stating the facts.)
The principal contention of defendants' counsel is that the indictment is insufficient in this: That the warrant alleged to have been forged and altered was void upon its face, and that forgery could not be predicated upon a void instrument; that special counsel, Belford and Yeaman, not being district attorneys or deputies, and not having been employed by the county commissioners of Arapahoe county, or any other county, but having been selected by the court as special counsel, were clearly without authority to appear before the grand jury, and in the prosecution of the defendants after presentment by indictment; that the court erred in admitting in evidence a large number of warrants of the city, some forged and others genuine. These are the three principal questions that were discussed before us in the oral argument.
The main and most important question, and the one with which we have had the greatest difficulty in reaching a conclusion, is the first. The testimony in the case shows that George R. Raymond was deputy city auditor; that James P. Hadley was deputy city treasurer; that J. Jay Joslin & Son had a claim against the city for merchandise furnished to the extent of $3.50, which claim was duly presented to the city council and allowed, and thereafter a warrant was drawn for the sum of $3.50, but in said warrant the purpose for which the appropriation was made or the warrant drawn was not included in the warrant; that thereafter the defendants, Hadley, Raymond, and one Milburn, the then city clerk, altered the warrant by inserting the figures "30" and the words "three hundred" in the said warrant, and subsequently drew the entire sum of $303.50 from the treasury of the city. It is insisted that the failure of the warrant to show on its face the purpose for which it was drawn renders it absolutely void, and consequently that no indictment for forgery can be predicated upon it.
I will divide this last proposition into two parts: First. Was the alleged warant void upon its face? Second If void, was it a subject of forgery?
Section 22, art. 3, of the city charter of Denver (Sess.Laws 1885) provides as follows: "No money shall be paid out by the city treasurer for any purpose, except upon warrants drawn upon him by order of the city council and signed by the mayor, countersigned and registered by the auditor, and attested by the clerk; and every such warrant shall show on its face the date of its issue, the date of the order of the city council, to whom and for what purpose issued, and from what fund payable." It will be observed that the warrant upon which the charge of forgery is predicated omits to state for what purpose it was issued; and, in order to determine the validity or invalidity of this warrant, it is necessary to determine whether the provisions of the statute above recited are mandatory; and, before proceeding to the discussion of this question, it may be well to theorize as to the object of the legislature in providing for a specific recital in the warrant of the purpose for which it was issued. This provision of the statute is as important as any of the other enumerated requisites of a warrant. If we can omit the purpose for which it is issued, why can we not omit the signature of the mayor, the date of the order of the city council, to whom payable, and from what fund payable? The statute says it shall show on its face the purpose. The object of the legislature in providing for this insertion in the warrant, it occurs to me, was, among other things, that the treasurer might be advised of the fact that the claim for which the warrant was directed to be issued was one for which the moneys of the city could be legitimately appropriated. It must be conceded that, should a...
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