Roberts v. People

Decision Date24 January 1887
Citation9 Colo. 458,13 P. 630
PartiesROBERTS v. PEOPLE.
CourtColorado Supreme Court

Error to criminal court, Arapahoe county.

Roberts the defendant below, was tried and convicted of the crime of obtaining money under false pretenses, at the September term 1884, of the criminal court of Arapahoe county. Motions for a new trial and in arrest of judgment were made and denied, and the prisoner sentenced to confinement in the penitentiary for a period of 10 months. Defendant was the county assessor of Arapahoe county in the year 1883, and previous years, and in consequence of the great amount of clerical work required to be performed in his office, the county commissioners had allowed him, for a period of three years or more, to employ as many clerks as were necessary to complete the assessments in the time limited by statute, at the expense of the county. Defendant was accustomed to pay these clerks, afterwards presenting bills therefor to the commissioners, which were audited, allowed, and warrants drawn upon the county treasurer for the several sums, payable to bearer, and delivered to the defendant, who would collect the same. It was finally discovered that defendant was defrauding the county by charging for more clerical work than was performed and at higher rates of compensation than he paid therefor. It appeared in evidence, upon an investigation of his conduct by the county attorney and the board of commissioners, that he had presented several fraudulent vouchers which had been allowed and paid. It also appeared that, when charged by the commissioners with the perpetration of these frauds, he admitted the making of overcharges, but claimed the right to do so. He also admitted that he had realized in this manner during the preceding three years, as nearly as the could estimate, the sum of $3,108. The count of the indictment under which he was tried and convicted, charges, substantially, that on the fifth day of July, 1883, said Roberts was county assessor of Arapahoe county, and, with intent to cheat and defraud said county, he falsely and fraudulently represented that a certain account in favor of one Charles M. Farrar, and against said county, which he then and there presented to said county for allowance and payment, was a just and true account of the indebtedness of the county to said Charles M. Farrar for services rendered during the month of June, 1883, in making the assessment of real and personal property in said county.

A copy of the account, with the affidavit attached thereto, is inserted in the indictment, and is as follows:

'VOUCHER.

'DENVER, COLORADO, June 30, 1883.

' County of Arapahoe to C. M. Farrar, Dr.

'Services: Assessment, 1883. June, 16 days, $6, $96.

' State of Colorado, County of Arapahoe--ss.: George C. Roberts, being first duly sworn, doth depose and say that the above account is legal, just, and true, and that the services therein charged for have been actually and necessarily rendered to and for said county, and that the same has not been paid, nor any part thereof.

GEORGE C. ROBERTS, Assessor.

Subscribed an sworn to before me this thirtieth day of June, A. D. 1883.

'W. H. SALLSBURY, Deputy County Clerk.'

The indictment further charges that defendant falsely and fraudulently pretended that Farrar had performed 16 days' service in the month of June, 1883, in making said assessment; that he demanded $6 per day for his services; and that defendant had full right and authority to collect the amount of the account prescribed, $96, from said county. By way of negation of the pretenses, it is alleged that Farrar did not serve 16 days in June, 1883, in making said assessment, but served seven and one-half days only; that he did not demand $6 per day for his services, but only the sum of $4 per day; and that the county was indebted for said services the sum of $30 only, which was all that defendant had the right or authority to collect from the county. It then alleges that the county of Arapahoe, relying upon and believing these false pretenses to be true, delivered to the defendant $96 in lawful money of the United States, of the value of $96, of the moneys goods, chattels, and personal property of the said county of Arapahoe, in payment of said amount; and that said Roberts, by means of the false pretenses mentioned, feloniously, fraudulently, knowingly, and designedly obtained and received from said county the sum of $96, and that the county was by these false pretenses defrauded of that sum.

Patterson & Thomas and L. R. Rodes, for plaintiff in error.

Theo. H. Thomas, Atty. Gen., for defendants in error.

BECK C.J.

The first error assigned is the denial of the defendant's petition for a change of venue. This petition was not filed until the day preceding the trial. The third section of the statute under which the application was made, (Rev. St. 634,) provides as follows: 'Changes of venue shall not be granted after the first term at which the party applying for the same might have been heard, unless the cause shall have arisen subsequent to such term.' Rev. St. 636. The indictment was presented to the April term, 1884, of the district court of Arapahoe county, and the cause was removed into the criminal court for trial in the month of May succeeding, and afterwards continued to the June term thereof. On the eleventh day of June, the defendant filed his plea of not guilty to the indictment, and the cause was then continued to the September term. On September 1, 1884, the cause was set down for trial on September 10th, and on the 9th the petition for change of venue was presented. The ground of the application was the alleged prejudice of the minds of the inhabitants of the county against the defendant. The states that this prejudice was created by sundry publications in the Daily Rocky Mountain News, a newspaper published in the city of Denver, charging him with malfeasance in office, and with obtaining money of the county of Arapahoe by false pretenses, perjury, and fraud. All the dates given, except two, are of publications made in the month of February, 1884. The other two were January 31, 1884, and September 7, 1884. The excuse given in the petition for not making the application for the change of venue at the June term is as follows: 'Your petitioner was not until the eighth instant made aware of the extent to which the publications of the said newspaper had prejudiced your petitioner in the minds of the inhabitants of the said county of Arapahoe; * * * and on the eighth instant, for the first time, your petitioner was informed that a strong and prevailing prejudice was and is existing in the minds of the inhabitants of said county against your petitioner; and, by inquiry among his friends and acquaintances, your petitioner hath become and is satisfied, and verily believes, that, by reason of such prejudice existing against him, your petitioner cannot expect a fair and impartial trial of this cause in this court.'

This is not a straight forward averment that the defendant did not know of the prejudice existing in the minds of the inhabitants of the county before the eighth instant, but only that he was not aware of the extent thereof until that day. Nor is it clear that his previous knowledge was insufficient to satisfy his mind that he could not expect an impartial trial. The averments concerning the specific information communicated to him on that day, and the inquiries made thereupon, do not rebut the inferences mentioned.

The provision of our statute above quoted is similar a corresponding provision of the statute of Illinois on the same subject. Under said provision the supreme court of that state held that an application for a change of venue must be made at the earliest moment. Excuses for delay of the character here presented are held insufficient. In McCann v. People, 88 Ill. 103, the ground of the application was the prejudice of the presiding judge, and to account for the delay in making the motion the defendant averred in his affidavit 'that a full knowledge of that fact did not come to his knowledge until the day the petition was presented.' The court say: 'Giving the affidavit a fair and reasonable interpretation, the defendant had some knowledge of the prejudice of the judge long before he made the application. That he had not 'full' knowledge is too indefinite, and does not comply with the law. Full knowledge might never come to him; but he had knowledge, and, for aught that appears, it might have been sufficient to satisfy his mind.' In White v. Murtland, 71 Ill. 258, the petition stated 'that he did not know that prejudice existed against him among the inhabitants of said county to the extent that it does, until the twenty-fifth day of July, 1872.' This petition was held insufficient on two grounds: First, it implies he had knowledge that the inhabitants of the county were prejudiced against him before the twenty-fifth day of July; second, it fails to state when this prejudice arose, or first came to his knowledge.

The present application is more faulty still; for, while it is equally indefinite as to when the knowledge of the prejudice of the inhabitants of the county first came to the defendant's knowledge, it does show that the principal acts creating the prejudice were performed six months before the application was made.

But perhaps a more serious defect in the petition is, it discloses that defendant's want of knowledge as to the extent of the prejudice existing against him, was wholly attributable to his own voluntary action. The statement referred to is: ' And your petitioner, since the publication of the said occusations against him in the said newspaper was commenced, hath continually and carefully avoided, as far as possible,...

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  • Kirby v. Union P. Ry. Co.
    • United States
    • Colorado Supreme Court
    • December 4, 1911
    ... ... 345, 59 N.W. 317, 24 ... L.R.A. 498; Jannin v. State, 42 Tex. Cr. R. 631, 51 S.W ... 1126, 62 S.W. 419, 96 Am.St.Rep. 821; Burdick v. People, 149 ... Ill. 600, 36 N.E. 948, 24 L.R.A. 152, 41 Am.St.Rep. 329; ... Drummond v. Southern P. R. Co., supra; Pennsylvania R. Co. v ... Beekman, ... We are clearly of the opinion that the ... motion to change the venue came too late. Denver S. P. & P ... R. R. Co. v. Roberts, 6 Colo. 333; School District v. Waters, ... 20 Colo.App. 106, 77 P. 255; Fletcher v. Stowell, 17 Colo ... 94, 28 P. 326; Commissioners v ... ...
  • Bartley v. State
    • United States
    • Nebraska Supreme Court
    • January 3, 1898
    ...the Omaha National Bank, the title to the money thus segregated passed from the bank to the state for an instant of time. Roberts v. People, 9 Colo. 458, 13 P. 630, was conviction for obtaining the moneys of Arapahoe county under false pretenses. The proofs showed that the defendant procure......
  • Bartley v. State
    • United States
    • Nebraska Supreme Court
    • January 3, 1898
    ...the Omaha National Bank, the title to the money thus segregated passed from the bank to the state for an instant of time. Roberts v. People, 9 Colo. 458, 13 Pac. 630, was a conviction for obtaining the moneys of Arapahoe county under false pretenses. The proofs showed that the defendant pro......
  • Mathews v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • April 7, 1921
    ... ... 416, 92 S.W. 706, 5 Ann. Cas. 976, and ... note; State v. Ryan, 47 Or. 338, 82 P. 703, 1 L. R ... A. (N. S.) 862; Spies v. People, 122 Ill. 1-12, 12 ... N.E. 865, 17 N.E. 898, 3 Am. St. Rep. 320, and note ...          It has ... been uniformly held by the courts of ... State v. Turley, 142 Mo. 403, 44 S.W. 267; State ... v. Hulder, 78 Minn. 524, 81 N.W. 532; Roberts v ... People, 9 Colo. 458, 13 P. 630 ...          The ... defendant urges further that the information is defective for ... the ... ...
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4 books & journal articles
  • Rule 98 PLACE OF TRIAL.
    • United States
    • Colorado Bar Association Colorado Rules of Civil and Appellate Procedure (CBA)
    • Invalid date
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    ...the applicant is only mandatory upon the court where the party applying has brought himself within its provisions. Roberts v. People, 9 Colo. 458, 13 P. 630 (1886). This is true although no counter affidavits are filed. Daugherty v. People, 78 Colo. 43, 239 P. 14 (1925). Motion directed to ......
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    • United States
    • Colorado Bar Association Colorado Lawyer No. 10-11, November 1981
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