Seebass v. People, 15721.

• Decision Date: 23 June 1947
• Docket Number: 15721.
• Citation: 116 Colo. 555,182 P.2d 901
• Parties: SEEBASS v. PEOPLE.
• Court: Colorado Supreme Court

182 P.2d 901

116 Colo. 555

SEEBASS v. PEOPLE.

No. 15721.

Supreme Court of Colorado, in Department.

June 23, 1947

Error to District Court, City and County of Denver; George A Luxford, Judge.

A. R Seebass, Jr., was convicted of larceny as a bailee and of conspiracy to commit larceny and he brings error.

Reversed and remanded with direction.

Evidence that prosecuting witness did not know defendant until time of trial, that prosecuting witness trusted only codefendant with whom she had dealings for some time and that defendant acted as principal in selling securities to prosecuting witness through codefendant established that defendant was not a bailee of money involved in sale of the securities and hence defendant could not be convicted for larceny as bailee.

A. X Erickson and Don B. Oliver, both of Denver, for plaintiff in error.

H. Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

HILLIARD, Justice.

A criminal prosecution. One Bagnall and plaintiff in error, in that order, were jointly informed against in four counts involving a single transaction, which was originated and concluded the same day, May 14, 1943, and concerns the identical money, in each instance alleged to be in the sum of $853.58. Considering that the legal sufficiency of the allegations of the several counts of the information is not challenged on error, an adequate statement of the charges is as follows: The first count charged larceny as bailees, the second count embezzlement, the third count conspiracy to commit larceny, and the fourth count conspiracy to commit embezzlement. Both defendants were convicted on counts one and three, and suffered judgment of sentence to the state penitentiary. Only plaintiff in error seeks review, and while he assigns as error, and argues many points, only certain thereof, to be identified as we proceed, will be discussed.

We pause to state that plaintiff in error filed motions to quash as to the several counts of the information, and for bill of particulars, which were heard and denied previous to his arraignment. After arraigment and entry of plea of not guilty, he filed a petition for severance, that is to say, for a trial separate and apart from defendant Bagnall, which was denied. These motions and petition were heard and determined by a judge other than the one who presided at the trial. Otherwise expressed, when the judge who tried the case assumed that role, the legal sufficiency of the information, its adequacy and detail of statement, and the question of the right of plaintiff in error to a separate trial, already had been determined and adjudged.

The major procedural question has to do with the denial of the petition of plaintiff in error for a trial separate and apart from Bagnall, and rulings in the course of the trial on the admissibility of evidence consistent with such denial; the over-all question on the merits being, Was plaintiff in error a bailee of the money involved in the prosecution?

In the petition for severance, which was based upon section 484, chapter 48, '35 C.S.A., there was set forth in exhaustive detail the situation as it pertained to the respective parties defendant, how they differed in their legal relationship to the prosecuting witness, and how diverse were their roles in the transaction of which she complained. In particulars of controlling importance, there was pointed out items of evidence clearly competent and admissible as against petitioner's codefendant, but wholly incompetent as against himself. The record is replete with instances of the receipt of such evidence, and, although objection was interposed by plaintiff in error, it was admitted generally. The petition made plain that Bagnall, petitioner's codefendant, not the petitioner, was the representative of the complaining witness; that only to Bagnall did she entrust the possession of her securities, moneys and cash items; and only he had authority to handle and make investment of her funds. Evidently, the petition was drawn in the light of our decisions on the point. Robinson v. People, 76 Colo. 416, 232 P. 672; Cook v. People, 56 Colo. 477, 138 P. 756; Moore v. People, 31 Colo. 336, 73 P. 30; Davis v. People, 22 Colo. 1, 43 P. 122. Not only was petitioner 'the only defendant who might be prejudiced by a joint trial,' but properly he was the moving party to that end. Cook v. People, supra. The petition for severance, as we are persuaded, was sufficient in form and ample in statement.

It will aid in an understanding of the case, we think, to set forth a resume of the evidence of the prosecuting witness, Julia E. Caruthers, in which she gives her version of her relationship to Bagnall, and to plaintiff in error Seebass who is prosecuting this writ of error. Mrs. Caruthers, seventy-two and a widow, was the sole heir of her deceased husband, whose estate consisted of some $80,000 in United States Treasury Bonds. Mrs. Caruthers testified that in the early summer of 1942, defendant Bagnall was brought to her home and introduced by a man she recalled having seen in company with her husband in his lifetime; that Bagnall 'wanted to interest me in investing in a lead and zinc mine near Harrison, Arkansas, the Primrose mine,' and 'said that he was a graduate of the University of Colorado in mining and engineering and that he was an experienced bond man and made a success in the bond business.' As the result of her conversation with Bagnall, she made investments in the Primrose mine that same summer. In the meantime, Bagnall learned of her bonds and advised her that in the interest of greater returns she should make sale of such securities and reinvest otherwise. On the strength of such advice, she began in 1943 to 'invest in other securities.' Before doing so she discussed the matter with 'no one but Mr. Bagnall.' In response to the question, 'Who was to select the securities which you purchased?' she testified, 'Mr. Bagnall.' Quoting further from the record:

'Q. Who was to sell them, Mrs. Caruthers? A. Mr. Bagnall.

'Q. Who was to determine when certain securities should be bought and sold? A. Mr. Bagnall.

'Q. Did you know anything about the stock market or the security market? A. Not a thing.

'Q. Did Mr. Bagnall ever tell you through whom those stocks and bonds would be purchased? A. Through Mr. Seebass.

'Q. What did he ever tell you about Mr. Seebass?'

Over the objection of defendant Seebass, Mrs. Caruthers testified Bagnall 'said that he had dealt with him for a good many years and he also had inside information on this--you know, all these stocks and bonds.

'Q. As a result of these conversations with Mr. Bagnall, did you begin to invest in various stocks and bonds? A. I did.'

On cross-examination of Mrs. Caruthers, the following appeared: 'Q. How long had you known the defendant Seebass? A. Since the trial started.

'Q. Had you ever seen him? A. I never saw him Before .

'Q. Did you ever talk with Mr. Seebass? A. Never.

'Q. Did you ever have any conversation of any kind with Mr. Seebass? A. None whatever.

'Q. And did you ever say to Mr. Seebass at any time that any transaction that you had ever had with him was unsatisfactory to you in any sense or manner? A. No, I never had any conversation with Mr. Seebass.'

It was not claimed, or even suggested, by or through testimony of Mrs. Caruthers or any other witness, or by means of documents or writings otherwise, or at all, that at any time there was any communication between the prosecuting witness and Seebass. Indeed, in the course of the trial the district attorney stated that 'all her dealings with Mr. Seebass were through Mr. Bagnall, that she never saw Mr. Seebass.' It is clear that Mrs. Caruthers placed her full trust in Bagnall, and only in him. It is no less apparent that at no time, the present instance included, did she entrust Seebass with money, or checks or drafts or other writings calling for money or that were cashable, or property of any kind or nature. On the contrary, she constantly was entrusting Bagnall, the other defendant, and only him, with money, checks and other negotiable securities, including the check she gave him for the purpose of buying the shares of stock involved in the transaction out of which the present difficulty arose. In whatever dealings her trusted representative had with Seebass, including this one, as abundantly appears, the latter acted for himself, or, as stated in the record 'as principal,' and never as agent for Mrs. Caruthers or any other.

Over the objection of counsel for plaintiff in error, the district attorney was permitted to show Bagnall's acquaintance and close association with Mrs. Caruthers, how he induced her in invest in the Primrose mine in Arkansas and the Chemical Research Company, a Denver concern, and to sell one-fourth of her $80,000 of government bonds and invest the proceeds otherwise under his direction. Also, he was allowed to introduce a book (Exhibit G), to which counsel for Seebass objected, and which, as Mrs. Caruthers testified, was a 'record of her purchases and sales of these securities.' The district attorney conducted the following examination relative to that exhibit:

'Q. Under what circumstances did you make these entries? A. I got a book and took it to his office.

'Q. Whose office? A. Mr. Bagnall's office.

'Q. When did you make the entries in that book which show your purchases and sales? A. They were supposed to be copies from his book. He gave them to me.

'Q. Mr. Bagnall? A. Mr. Bagnall gave them to me.' Counsel moved to strike the testimony in so far as Seebass was concerned, which was overruled and exception reserved. The district attorney continued his examination of

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