Rogers v. People

• Decision Date: 27 December 1966
• Docket Number: No. 21370,21370
• Citation: 422 P.2d 377,161 Colo. 317
• Parties: Fred ROGERS, a/k/a Fred C. Rogers, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 377

422 P.2d 377

161 Colo. 317

Fred ROGERS, a/k/a Fred C. Rogers, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21370.

Supreme Court of Colorado, En Banc.

Dec. 27, 1966.

Rehearing Denied Jan. 23, 1967.

Dickerson, Morrissey & Dwyer, Albert B. Wolf, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., George H. Sibley, Sp. Asst. Atty. Gen., for defendant in error.

DAY, Justice.

By separate Grand Jury indictments, plaintiff in error, to whom we will refer by name, was charged in the Arapahoe County district court with the crimes of confidence game, larceny, false pretenses, larceny by bailee, perjury, and embezzlement. All of the separate indictments were consolidated for trial, and at the close of the People's case the court entered directed verdicts of acquittal on two of the indictments: the embezzlement charge on confession by the district attorney, and the charge of larceny by bailee on motion of Rogers. Motions for directed verdicts of acquittal on the other four indictments were denied.

Relying on grounds asserted in his motion that the evidence offered by the People was insufficient to support or prove the charges, Rogers did not offer any testimony. The jury returned verdicts of not guilty on the confidence game and larceny indictments, but found the defendant guilty of 'obtaining money under false pretenses' and guilty of perjury.

Rogers, in his summary of argument, has advanced a number of points on which he relies in seeking reversal of the judgment of conviction. However, the insufficiency of the evidence to sustain Rogers' conviction on all indictments should have prompted the trial court to grant his motions for directed verdicts. The jury acquitted defendant of two of the charges; his conviction on the other two, we hold, should be reversed. There is no necessity, therefore, to comment on all of the assignments of error.

It is settled law in this state that in order to sustain a conviction of false pretenses, as that crime is set out in C.R.S. 1963, 40--14--2, there must be a misrepresentation of a past or existing fact. People v. Orris, 52 Colo. 244, 121 P. 163, 41 L.R.A.,N.S., 170. The law was reiterated in Chilton v. People, 95 Colo. 268, 35 P.2d 870, in which this court reversed a conviction of obtaining money under false pretenses, stating:

'Statements of opinion, or estimates, or Promises, are not actionable, and provide no basis for prosecution under the false pretense statute.' (Emphasis supplied)

The Grand Jury charged Rogers with making certain representations to Lex Penix, knowing them to be false, and inducing Penix to make a deposit of funds in the Industrial Finance Company. The indictment goes on to charge that the representations by Rogers were made with the design and purpose to cheat and defraud Penix and that as a result the latter parted with property in excess of $50 in value.

The evidence as to the false representations was offered by the complaining witness Penix. Part of his testimony can be summarized as follows: 'I was making inquiry of him (Rogers) about making a deposit larger than I had at any time previously. I made inquiry if he took sizable amounts--they were sizable to me--* * * $10,000 or more.' Then the following question and answer appears in the record:

'Q. All right, Now, will you relate the conversation that took place on that date?

'A. As I have stated, this was a larger amount than I had deposited with him at any time and we talked further, as I said, about him taking this larger amount. I asked about how long a notice that he would need for me to remove any or all of this. His reply was that he had legally I believe 30 days in which to--before I could make a withdrawal but he would not require that of me, I could make it if I would just give him ten or even less days' notice. I made inquiry at this time too whether in making this large amount how safe was I. He explained to me that he did not have any federal insurance but he had never lost a dollar for any of his depositors, and he says, 'You know me well enough to know that I wouldn't take this if you had any probability of not recouping it."

When asked whether Penix recalled any other conversations that he had with Mr. Rogers that he had not described to the jury, he replied, 'Not at that time, sir.'

Other testimony by Penix relied upon by the People is the following series of questions and answers:

'Q. In June, 1960, did you place any reliance in Mr. Rogers' solvency at that time?

'A. I did not question his solvency at any time.

'Q. And why not, sir?

'A. Due to my acquaintance and faith in his integrity to take care of his business, and in turn my business. I had faith in his confidence. I considered him a friend that would not misplace my funds.

'Q. You had confidence in Fred Rogers?

'A. I certainly did.

'Q. Did you, Doctor, rely on the fact that the moneys you deposited with Mr. Rogers could be withdrawn promptly?

'A. He had so stated to me that they could be in a very short time.

'Q. Did you rely?

'A. And he would not require the 30 days that he had legally.

'Q. Did you rely, sir, on Mr. Rogers' statement to you that the money was safe?

'A. Surely.

'Q. Did you rely, sir, on Mr. Rogers' and the Industrial Finance Company's ability to return the money upon demand?

'A. Well, I certainly relied, as I have stated, on his integrity and his friendship.

'Q. Did you rely, sir, on the statement made to you by Mr. Rogers that in the past no depositor had ever lost any money?

'A. That would certainly be one of my means of reliance.'

Viewing the evidence in the light of the law enunciated previously, the only representation of a past or existing fact was the statement that 'he had never lost a dollar for any of his depositors.' This was never shown to be false; there was no evidence that anyone had lost any money prior to the date of this particular transaction with Penix. All the other statements by Rogers were to the effect that Penix could withdraw his funds in less than the customary 30 days; that he probably could withdraw them in 10 days or less; and that he would have no difficulty getting his money--statements of opinion as to probabilities in the future if withdrawals were to be made.

It appears to be the theory of the People that Rogers failed to make disclosure of the Industrial Finance Company's condition which Rogers either knew or should have known at the time of his accepting the Penix deposit. Although failure to make a disclosure and intentionally remaining silent as to a material fact may form the basis of a civil action in fraud or deceit, such evidence cannot support a conviction of obtaining money by false pretenses. Such was the holding in Stumpff v. People, 51 Colo. 202, 117 P. 134. In that case the defendant Stumpff induced the prosecuting witness to part with his money in exchange for a cow without disclosing the existence of a chattel mortgage against the animal. This court in that case said:

'The Attorney General does not claim that any false verbal statement was made by defendant at the time of the sale, but seeks to bring the case as made within the false pretense statute, upon the theory that the silence of defendant with reference to the chattel mortgage is of itself a false pretense and misrepresentation. The general rule is that the mere nondisclosure of facts known to defendant, even though a disclosure thereof would operate to deter the prosecuting witness from parting with his money, is not a false pretense. 19 Cyc. p. 403. And this is true, even though a false pretense may be proved by the acts or conduct of the defendant, as well as by his words. In People v. Baker, 96 N.Y. 340, EARL, J., in delivering the opinion of the court, expressly held that mere silence and mere suppression of the truth, upon which another may act, is not sufficient to constitute the crime of false pretenses. * * *' (Emphasis supplied)

There is not one scintilla of evidence that Rogers made any statement to Penix concerning the financial condition of the company. The only evidence on this score is that Penix testified: 'I did not question its solvency at any time.' And when asked 'why,' he stated that the inducement to make the deposit was 'my acquaintance and faith in his integrity to take care of his business and, in turn, my business. * * * I considered him a friend that would not misplace my funds.' All of this was what was in the mind of Penix, and, of course, cannot form the basis of a criminal charge.

Turning our attention to the conviction of the crime of perjury, this charge grew out of evidence that Rogers had made out and filed with the bank commissioner a financial statement which did not truly reflect the condition of the company. There was introduced in evidence as an exhibit the statements upon which there appeared the signature of Rogers, with the familiar jurat 'subscribed and sworn to before me, etc.' plus the signature and seal of a notary public, one Mrs. Jennings.

The statute on the crime of perjury under which defendant was convicted is C.R.S.1963, 40--7--2. It reads as follows:

'Any person who shall sign any false written statement and willfully and corruptly Make oath to or affirm the same before any officer having the right to administer oaths, shall be guilty of perjury and shall be punished accordingly.' (Emphasis supplied)

Another pertinent statute, C.R.S.1963, 98--1--1, reads as follows:

'Whenever any person shall be required to take an oath before he enters upon the discharge of any office, position or business, or on any other lawful occasion, it shall be lawful for any person employed to administer the oath to administer it in the following form: The person Swearing, with his Hand uplifted, shall swear 'by the everliving God. " (Emphasis supplied)

An analysis of the foregoing statutes when read together indicates three...