Roll v. People

• Decision Date: 01 February 1926
• Docket Number: 11287.
• Citation: 243 P. 641,78 Colo. 589
• Parties: ROLL v. PEOPLE.
• Court: Colorado Supreme Court

243 P. 641

78 Colo. 589

ROLL v. PEOPLE.

No. 11287.

Supreme Court of Colorado, En Banc.

February 1, 1926

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

D. M Roll was convicted of obtaining property by means of a confidence game, and he brings error.

Affirmed.

C. A. Irwin, of Denver, for plaintiff in error.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein, Asst Atty. Gen., for the People.

BURKE J.

Plaintiff in error, hereinafter referred to as defendant, was sentenced to the penitentiary for 5 to 7 years on a verdict of guilty of obtaining property by means of a confidence game. To review that judgment he sues out this writ, and in support of it contends: (1) The thing obtained by the acts charged and relied upon was not property. (2) It was not obtained by a confidence game. (3) Evidence of other transactions was improperly admitted. (4) Error was committed in the cross-examination of defendant. (5) Certain instructions requested by defendant were erroneously refused.

The statute (chapter 93, L. 1923, p. 253) makes it a felony to obtain 'any money or property by means of or by use of brace faro, or by any false or bogus checks, or by any other means, instrument or device, commonly called confidence games.' The information charged that defendant and another obtained from one Brubeck 'one certain bank check of the value of $7,000, * * * by means and by use of the confidence game.'

Defendant Brubeck, and one Davis were members of, and coworkers in, the same church, and he professed the greatest admiration for, and confidence in, each of them. Defendant's principal business seems to have been that of a promoter and speculator in anything offering tempting profits. This record begins with an alleged million dollar snap into which he admitted his two friends. Brubeck put up $100 cash, and when 'the deal fell through' this was returned to him. Defendant next told Brubeck how he had made much easy money for Davis, and proceeded to unfold, and let him into, an oil-leasing scheme, to the extent of $300. A little later the operation broadened until some 700 acres were covered by options, and Brubeck had borrowed $2,500 and added that to his investment. A prospective purchaser now became necessary. He appeared in the person of one McGinnis, a tool of defendant, and himself probably innocent of fraudulent intent. With $1,000 furnished by defendant, he took an option on said 700 acres at $100 per acre, and pretended eagerness to swell this to 1,000 acres. This payment was turned over to Brubeck. Defendant next claimed to have found, at $10,000, other oil land which could be added to their holdings and all sold at an enormous profit to a mythical friend of his, but which tract required an additional $7,000 to swing. Defendant and Brubeck being together, a woman, representing herself as Mrs. Roll, called over the telephone and talked with each. She read an imaginary telegram from her husband's friend, offering $100 per acre for 'all the land you got.' Relying upon all this conjuring as actuality, Brubeck, at defendant's instigation, borrowed an additional $6,000, on which, plus the $1,000 he had received from McGinnis, he wrote and delivered to defendant his check for $7,000, which check defendant cashed. This is the property mentioned in the information. There was no prospective purchaser, no sale, no telegram as represented. Aside from the trickery involved in words, the means used to wheedle this money out of Brubeck included the telephone, the telegraph, written checks, written options and contracts, the $1,000 cash, and the dummy McGinnis.

1. 'For the payee named in a check to induce another to sign and deliver it,' says counsel for defendant, 'is not within the confidence game statute.' The basis of this assertion is the contention that the check in question was not property in the hands of Brubeck; hence obtaining it by false pretenses would be no crime, and that the same rule applies to the charge and statute before us. This position counsel supports by the citation of the earliest English statutes and decisions and the history and development of that law down to the present time in the several states of the Union. An ingenuous fabric is thus constructed, which rests primarily on the definition of property, in prosecutions for larceny under the common law, which did not include written instruments. That definition has been supplanted by our statute which includes in the phrase 'personal property' everything which may be the subject of ownership and is 'not included within the term real estate.' The contention here made by counsel for defendant is exactly the same as made by him with equal skill and research in Knepper v. People, 167 P. 779, 63 Colo. 396, where the false pretense statute was in question. He now admits that notes and checks are covered by that statute under the phrase 'other valuable thing whatever.' But in the Knepper Case we cited with approval Clawson v. State, 109 N.W. 578, 129 Wis. 650, 116 Am.St.Rep. 972, 9 Ann.Cas. 966, holding that a promissory note was covered by a statute making it a criminal offense to obtain, by false pretenses, 'money, goods, wares, merchandise, or other property.' In that case it appears the real difficulty encountered by the Supreme Court of Wisconsin was due to the word 'other.' Here the language is 'or property,' not 'other property.' Our own statute and decision settle the question in this jurisdiction. Much musty learning is thus made superfluous, and we need not delve into it. Fortunately so, for in this commercial age a solemn judicial decision that a check for $7,000, backed by a bank account to cover it, and actually cashed by the payee, is not property, would require neither argument nor precedent to make it ridiculous.

2. It is next contended that this check was obtained merely by verbal misrepresentations, which, under the rule in Wheeler v. People, 113 P. 312, 49 Colo. 402, Ann.Cas. 1912A, 755 constitutes no offense under the confidence game statute, or that at most it was obtained by oral representations relied upon by Brubeck because of the deal with McGinnis, and hence the McGinnis contract was not the device used for obtaining the check and not the direct or proximate cause thereof, but the cause of the cause, and therefore the evidence is insufficient under Pierce v. People, 81 Ill. 98. The argument is specious. So intricate and interwoven are the falsehoods, the fictitious deals, and the fraudulent writings involved in this transaction that no man can put his finger on a single one of them and say with any certainty this it was that induced Brubeck to part with his property. No witness pretended to do so. It is perfectly obvious that they were each a part of a single transaction, spread over a considerable period and numerous localities, each leading toward, and...