Roll v. People

• Decision Date: 06 June 1955
• Docket Number: No. 17407,17407
• Citation: 284 P.2d 665,132 Colo. 1
• Parties: Roy ROLL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 665

284 P.2d 665

132 Colo. 1

Roy ROLL, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 17407.

Supreme Court of Colorado, En Banc.

June 6, 1955.

Rehearing Denied June 27, 1955.

Thomas K. Hudson, Clarence W. Button, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank A. Wachob, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

KNAUSS, Justice.

Plaintiff in error, herein erferred to as defendant, was convicted of conspiracy to commit the crime of confidence game. From the judgment and sentence imposed he brings the cause here by writ of error.

The information was in two counts and against three individuals, including defendant, John Schubert and Charles A. Moran. The first court charged that defendants 'did unlawfully and feloniously obtain and attempt to obtain from the Traders & General Insurance Company, * * * its money in the amount of one hundred forty eight dollars * * * by means and use of the confidence game.' The second count, drawn in conformity with Section 223, chapter 48, '35 C.S.A. charged that defendant and John Schubert and Charles A. Moran conspired to commit the crime of confidence game, a felony. Each defendant entered a plea of not guilty to these counts.

The trial court granted a separate trial to defendants Roll and Moran. The defendant was acquitted by the jury of the charge in the first count and convicted on the second count.

The reporter's transcript in this case embraces over two thousand folios and more than 170 exhibits were introduced in evidence. The trial commenced on November 19, 1952 and was concluded on December 11, 1952. The principal witnesses for the People were James Roberts former employee of Spot Auto Body Company, which was owned and controlled by defendant Roll and John Schubert, Rocky Mountain Branch Manager for Traders & General Insurance Company, a Texas corporation, hereinafter referred to as 'Traders'.

Defendant Roll was engaged in the garage business and in repairing damaged automobiles. Traders issued policies of insurance on numerous cars, and in some nine instances referred to in the record, Mr. Roll's shop did the repair work on these damaged cars, and payment was made by Traders under the policies of insurance issued by it on these respective automobiles. In most instances where payment for repair bills was authorized by Traders, the insurance company insisted that bids for the work be submitted by three repair shops. It appears that Roll's shop had estimate blanks for several other automobile repair shops in Denver and the Roll shop made estimates of the repair cost on these forms, each of these estimates being higher than the one submitted by the Roll shop. In his accounts Roll had one called Account No. 1000 in which were entered certain items which witness Roberts testified: 'just to put it bluntly, it was more or less a fund to pay off adjusters.'

There is competent evidence in the record showing that defendant and Schubert entered into an arrangement whereby the Roll repair shop 'padded' its charges and that a part of the overcharge was paid to Schubert. It is apparent from the questions propounded by defendant's counsel that defendant contended these payments were loans to Schubert. Schubert admitted that in some instances he did borrow money from Roll, but that the checks offered in evidence and by him endorsed (some being for 'cash') were his division of the over-charge made by Roll's concern for work not actually done on the automobiles repaired.

Defendant did not testify in the case and rested his case immediately after the People's case was completed.

It is argued that the trial court erred in permitting the district attorney to endorse John Schubert as a witness for the People during the course of the trial, and that the testimony of this witness was improperly admitted because said witness was present in the court room when some of the evidence was introduced, at a time when the court had made a rule for the exclusion of witnesses. It appears that in the first instance the witness, Schubert, also a defendant in the case, had entered a plea of not guilty and apparently during the progress of the trial of defendant, he changed his plea of 'guilty' and applied for probation. He, on December 8, 1952, indicated to the district attorney that he would testify in the case, and upon learning this fact the prosecutor asked that Schubert's name be added to the list of witnesses for the People. In order to safeguard the rights of defendant the trial court, apparently seeking to avoid any surprise on the part of defendant, took the testimony of the witness Schubert in chambers, and observing no prejudice to defendant, allowed Schubert to testify before the jury. At the conclusion of his direct examination, counsel for defendant asked for a mistrial, and also moved for a continuance, in order to enable them to confer with Schubert and prepare for his cross-examination. The motion for a continuance was granted. We are satisfied from a careful examination of this record that the defendant was in nowise prejudiced by the action of the trial court in permitting Schubert to be called as a witness. Under the circumstances disclosed by this record, the trial court did not abuse its discretion in permitting the witness Schubert to be endorsed and to testify. If authority is deemed essential, we refer to Baker v. People, 72 Colo. 207, 210 P. 323; Stone v. People, 71 Colo. 162, 204 P. 897; Kloberdanz v. People, 95 Colo. 30, 31 P.2d 1111; Grandbouche v. People, 104 Colo. 175, 89 P.2d 577, 580. The Statute governing such matters is Section 455, chapter 48, '35 C.S.A.

In the Grandbouche case, supra, we said: 'Certainly, counsel for the people could not be expected to endorse her name as a witness until she changed her plea. Even then the likelihood of her willingness to testify, under the circumstances, remained in doubt until her voluntary consent had been given. * * * Under these circumstances, the matter of permitting the endorsement was clearly within the discretion of the trial court, and we find nothing in the record from which we can say that such discretion was abused.'

It is here urged that the trial court abused its discretion in permitting Schubert to testify because of his presence for a brief time in the courtroom contrary to the exclusion rule entered by the court. He heard no substantial evidence. The record discloses that the district attorney upon learning that Schubert was in the courtroom, went over to him and asked him to leave, and Schubert immediately left the courtroom. It is manifest from the record that Schubert was not present in the courtroom with the knowledge, consent or procurement of the district attorney. The trial court expressly found that both the district attorney and Schubert were without blame in the matter of Schubert's presence in the courtroom. Where the exclusion order has been disobeyed by the consent of procurement of the party seeking to use the witness, the trial court may, in the exercise of a sound discretion, refuse to receive the testimony. Vickers v. People, 31, Colo. 491, 73 P. 845. We find nothing in this record indicating that the trial court abused its discretion in allowing Schubert to testify.

Counsel for defendant contend the evidence is not sufficient to support a conviction on the charge of conspiracy to commit confidence game, because the jury found defendant not guilty of the...