Rogers v. People

• Decision Date: 03 July 1939
• Docket Number: 14528.
• Citation: Rogers v. People, 104 Colo. 594, 94 P.2d 453 (Colo. 1939)
• Parties: ROGERS v. PEOPLE.
• Court: Colorado Supreme Court

94 P.2d 453

104 Colo. 594

ROGERS v. PEOPLE.

No. 14528.

Supreme Court of Colorado, En Banc.

July 3, 1939

Rehearing Denied Sept. 11, 1939.

Error to District Court, Las Animas County; Frederic W. Clark Judge.

I. D Rogers was convicted under an indictment charging him as county commissioner of illegal use of public funds, and he brings error and applies for a writ of supersedeas.

Affirmed.

HILLIARD C.J., dissenting.

E. V. Holland and George H. Lerg, both of Denver, for plaintiff in error.

Byron G. Rogers, Atty. Gen., and Reid Williams, Asst. Atty. Gen., for the People.

BURKE Justice.

Plaintiff in error, a county commissioner, hereinafter referred to as defendant, or Rogers, was indicted for the illegal use of public funds, convicted and sentenced to the penitentiary for a term of six to ten years.To review that judgment he prosecutes this writ and asks that it be made a supersedeas.We elected to finally dispose of the cause on the application.It has accordingly been fully briefed and orally argued.

The statute under which the indictment was returned reads: 'If any officer appointed or elected by virtue of the constitution of this state, or any law thereof, as an officer, agent or servant of an incorporated city, town, municipal township, school district, or county, or other subdivision of this state, shall convert to his own use in any way whatever, or shall use, by way of investmant in any kind of property or merchandise, or shall make way with or secrete any portion of the public funds or moneys, or any valuable securities by him received for safe keeping, disbursement, transfer, or for any other purpose, or which may be in his possession or over which he may have the supervision, care or control, by virtue of his office, agency or service, or under color or pretense thereof, every such officer, agent or servant shall, upon conviction, be punished by imprisonment not less than five (5) years.'Sec. 262, chap. 48, p. 1051, Vol. 2, '35 C.S.A.

The count of the indictment under which defendant was convicted reads:

'That I. B. Rogers, late of the county of Las Animas and state of Colorado, then and there being a duly elected officer of said Las Animas County, to-wit, a duly elected, qualified and acting county commissioner in and for said Las Animas county, which said county is a quasi public corporation duly organized, existing and doing business under and by virtue of the laws of the state of Colorado, at and within the said county of Las Animas, did, on or about the 25th day of November, 1936, knowingly, willfully, unlawfully, corruptly, feloniously, falsely, fraudulently and designedly use, secrete and convert to his own personal use the sum of $200.00 lawful money of the United States of America and being a portion of the public funds or moneys of said Las Animas county, in this, to-wit:

'That on or about the 25th day of November, 1936, Chas. B. Gerardi presented to said Las Animas county a certain claim, account and voucher for payment by said Las Animas county, which said account, claim and voucher was presented to said Las Animas county as a just and true account of the indebtedness of said county to said Chas. B. Gerardi for one steam boiler, radiators and fittings complete, to be delivered to Las Animas county; that said I. B. Rogers as such county commissioner aforesaid, allowed and approved said claim and caused the same to be paid from the public funds of said county of Las Animas; that said I. B. Rogers then and there well knew that in truth and in fact that the said steam boiler, radiators and fittings complete to be delivered to said Las Animas county amounted to, and was of the reasonable value of not more than $1000.00, and that said Las Animas county was not indebted to said Chas. B. Gerardi in the amount of $1200.00 as claimed and asserted in the said claim, account and voucher, for the reason that the value and amount by which said county was indebted to said Chas. B. Gerardi was not more than $1000.00; that the said I. B. Rogers then and there did, knowingly, willfully, unlawfully, corruptly, feloniously, falsely, fraudulently and designedly procure, receive, secrete, use and convert $200.00 of said $1200.00 to his own use.'

On the trial ample evidence was produced of the following facts, which were presumably found by the jury: The county needed a heating plant.One Gerardi owned such.It was second hand and he offered it through Rogers for $1,000.The latter inquired if it would stand $1,200.Gerardi replied, in substance, that it would stand whatever defendant said.They thereupon agreed that it should be sold to the county for the fictitious price of $1,200 of which Rogers was to have $200.Rogers caused a voucher to be drawn and presented for that amount, and, acting for the board in the matter, he allowed, or voted for the allowance of, the claim, and signed the warrant.Gerardi cashed it and paid Rogers the $200.It was the practice of the board to parcel out certain of its duties among its members, particularly assigning to each the necessary purchases for his district.Rarely were debts thus contracted turned down by the board.Thus Rogers represented the board in this purchase.From a cursory examination of this record it would therefore appear to present a pretty clear case of guilt and lawful conviction.But by his assignments Rogers says, in substance: The indictment under which I was tried was returned by an illegal grand jury; Before that body I was forced to testify against myself; I was wrongfully denied a change of judge; my guilt of unlawful conspiracy, or of obtaining money under false pretenses, may have been sufficiently established by the evidence, but not guilt of violating this statute; the indictment charged no offense; the evidence did not conform to the charge; evidence of other alleged similar offenses was improperly received; the judgment made a prejudicial remark in the presence of the jury; certain erroneous instructions were given; certain tendered instructions were improperly refused; and certain evidence was improperly admitted and excluded: For all or any of these reasons reversible error was committed and I did not have a fair trial.

1.The grand jury was summoned on open venire.Defendant contends that under the circumstances it could only be drawn from the box.The statute provides that 'at least thirty days prior to the term' the clerk shall draw from the box 'a sufficient number of grand and petit jurors for the next term.'Sec. 13, chap. 95, '35 C.S.A.'In drawing the list of jurors for the first panel of any term of court, the court shall select from the first thirty names thereon, or from such lesser number as may be called to serve as jurors, the names of twelve persons who shall constitute the grand jury in case a grand jury is required.'Sec. 59, Id.It will be observed that the foregoing is only applicable 'in case a grand jury is required', and that it is then selected from 'the first panel'.In counties like Las Animas the calling of a grand jury is discretionary with the judge.It often happens that when the first panel is drawn (as was the case here), or when the term opens, no grand jury has been ordered or decided upon.Hence we have held such acts directory only, and that grand jurors can nevertheless be summoned by open venire as under the common law.Imboden v. People,40 Colo. 142, 151, 90 P. 608.Moreover, this term opened May 9.On April 8a panel of 36 petit jurors was ordered drawn and summoned for service May 16th.The district attorney on May 9, the opening day, petitioned for a grand jury and it was so ordered that day, on open venire, to report May 12.If the court may order an open venire for a grand jury 'during the term' it is immaterial that this be done on the first day of the term or the third.Again, in certain contingencies, including 'if jurors shall not be drawn and summoned as herein provided, * * * the court shall, nevertheless, have power to cause a jury to be summoned by open venire.'It is clear that this language relates to grand as well as petit jurors.Sec. 17, chap. 95, Id.This record shows a finding by the trial judge that on the date when the petit jury was called he had formed no conclusion as to the calling of a grand jury and that no statements relative thereto were made by him until after the presentation of the petition by the district attorney.Moreover, it would seem that such technical questions as that here raised are disposed of by another section of our statute: '* * * No motion in arrest of judgment or writ of error shall be sustained * * * by reason of the disqualification of any grand juror or grand jurors * * *.'Sec. 453, chap. 48, Id.

2.Defendant, in his motion to quash which was overruled, says he was 'required by authority of the grand jury to appear Before it' and 'was thereby compelled to be a witness involuntarily against himself.'It will be observed that the allegation is so adroitly worded as to be a mere statement of defendant's conclusions.What testimony was called for or given is not indicated.No fact is stated from which we may determine that it was 'by authority', or that he was 'compelled', or that his testimony was 'against himself.'On the hearing of the motion it was admitted that when defendant was Before the grand jury the proper warning was given him.The district attorney then asked permission to show 'that it was at defendant's request he appeared Before the grand jury.'To this offer his counsel replied: 'I will certainly object to that.* * * It makes no difference * * * how he got Before the grand jury.It makes no difference, the fact he was warned Before being sworn as a witness.'The record does not disclose a formal overruling of the...