Small v. People, No. 23345

Docket NºNo. 23345
Citation173 Colo. 304, 479 P.2d 386
Case DateDecember 21, 1970
CourtSupreme Court of Colorado

Page 386

479 P.2d 386
173 Colo. 304
Arthur Everett SMALL, Jr. a/k/a A. E. Small, Jr. a/k/a A. E.
Small, Plaintiff in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 23345.
Supreme Court of Colorado, In Department.
Dec. 21, 1970.
Rehearing Denied Feb. 1, 1971.

[173 Colo. 306]

Page 387

Clayton W. Bell, Boulder, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Paul D. Rubner, Asst. Atty. Gen., Denver, for defendant in error.

GROVES, Justice.

The writ of error in this criminal case issued at the [173 Colo. 307] instance of the defendant. He was charged with four counts, namely, confidence game, conspiracy to commit confidence game, obtaining property by false pretenses, and conspiracy to commit the false pretenses offense. He was convicted of the charges contained in the first two counts and acquitted as to the remaining two. We affirm.

The first count in the information charged that the defendant obtained $9,000 from Margaret Spurgeon by means of the confidence game. The second count alleged conspiracy with respect to the transaction described in the first count. Mrs. Spurgeon, who was a widow 86 years of age, had moneys on deposit at several banks and savings and loan associations. The testimony on behalf of the people was to the effect that, in addition to the sum of $9,000 alleged in the information, by similar means the defendant had obtained an additional $29,000 from Mrs. Spurgeon, which was substantially all of her invested money. At the time the defendant was an attorney and, according to some of the People's testimony, with the cooperation of other persons was able to obtain this money by holding himself out to Mrs. Spurgeon and others as her attorney.

I

Substantially the same series of facts were the basis of counts 1 and 3 (the confidence game and false pretenses counts). Under the first assignment of error the defendant contends that the false pretenses counts could not be joined with the confidence game counts and that the People should have been required to elect between the first and second counts on the one hand and the third and fourth on the other.

The confidence game statute and the false pretenses statute upon which the information was grounded were repealed in 1967 (Colo.Sess. Laws 1967, p. 578, § 19) and replaced by the theft statute. 1967 Perm.Supp., C.R.S.1963, 40--5--2. It would seem that the problems of joinder and election involved here cannot arise under the theft statute.

[173 Colo. 308] We have concluded that the offense of confidence game as defined by the court's instructions and that of obtaining money by false pretenses were two separate and distinct offenses under our former statutes. While the distinctions may be fine, we believe that it is possible for one to commit the offense of confidence game and not that of false pretenses, and Vice versa. As limited by the instructions, confidence game consisted of obtaining money from another by a device deceitfully used to gain the confidence of the other. Obtaining money under false pretenses involves knowingly and by design and false pretenses obtaining another's money with intent to cheat or defraud. We conclude, therefore, that the confidence game and false pretenses counts properly could be joined.

Page 388

This does not mean necessarily that a conviction on all counts, predicated upon the same transaction, could stand. The question was solved in this case, however, by the court's instruction to the jury that, if it found the defendant guilty of confidence game it could not find him guilty of false pretenses; that if it found him guilty of false pretenses it could not find him guilty of confidence game; and if it found him guilty of conspiracy to commit one of the foregoing felonies, it could not find him guilty of conspiracy to commit the other.

Generally, the matter of election by the People between counts is within the sound discretion of the trial court. Crim. P. 14. Ruark v. People, 158 Colo. 287, 406 P.2d 91 (1965); and Sanders v. People, 109 Colo. 243, 125 P.2d 154 (1942). Under the People's testimony it might be arguable as to whether the same acts could constitute the felony of confidence game and the felony of obtaining property by false pretenses. Under the circumstances of this case we rule that any abuse of discretion that the court might have committed in failing to require the People to elect was cured by the instruction to elect and the verdicts thereunder.

[173 Colo. 309] II

A few months prior to the trial of this action there was considerable publicity given to the refusal of the county commissioners of Boulder County to pay attorney's fees awarded to appointed counsel in a murder case. The defendant here maintains that this publicity and publicity concerning his own case should have caused the court to grant his motion for change of venue. There was no showing that this publicity had any effect on any members of the jury. There is not before us any record of Voir dire examination. We find nothing in the record indicating prejudice in the jury selection process. The defendant, in addition to some generalized statements, simply alleges violation of 'due process,' and cites Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). The briefs were filed prior to the announcement by this court of Walker v. People, Colo., 458 P.2d 238 (1969). Neither side has filed any supplemental briefs discussing Walker and we do not recall it being mentioned in oral argument.

In Sheppard the United States Supreme Court held that the publicity was so massive, pervasive...

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9 practice notes
  • People v. McCrary, No. 26258
    • United States
    • Colorado Supreme Court of Colorado
    • May 17, 1976
    ...adverse effect upon the jury panel or portion thereof. See, e.g., Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); Small v. People, 173 Colo. 304, 479 P.2d 386 (1970). In rare cases, a denial of a change of venue will also be reversed upon a showing of 'massive, pervasive and prejudic......
  • Sergent v. People, No. 23542
    • United States
    • Colorado Supreme Court of Colorado
    • February 28, 1972
    ...media to the end that the case could be determined on the law and on the evidence. [177 Colo. 362] In the light of Small v. People, Colo., 479 P.2d 386 (1970), the defendant's contention that the trial judge erred in refusing to grant a change of venue is also without merit. The Small case ......
  • People v. Botham, No. 27525
    • United States
    • Colorado Supreme Court of Colorado
    • June 8, 1981
    ...supra; People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976); Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); Small v. People, 173 Colo. 304, 479 P.2d 386 (1970). ABA Standards for Criminal Justice, 8-3.3 (2d ed. In determining whether the publicity given these grisly homicides crea......
  • Kurtz v. People, No. 23904
    • United States
    • Colorado Supreme Court of Colorado
    • February 22, 1972
    ...Colo. 319] the Voir dire examination of the jury and affidavits submitted to the court. Just as was the case in Small v. People, Colo., 479 P.2d 386, there was not present here the extensive and pervasive publicity as found in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600......
  • Request a trial to view additional results
9 cases
  • People v. McCrary, No. 26258
    • United States
    • Colorado Supreme Court of Colorado
    • May 17, 1976
    ...adverse effect upon the jury panel or portion thereof. See, e.g., Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); Small v. People, 173 Colo. 304, 479 P.2d 386 (1970). In rare cases, a denial of a change of venue will also be reversed upon a showing of 'massive, pervasive and prejudic......
  • Sergent v. People, No. 23542
    • United States
    • Colorado Supreme Court of Colorado
    • February 28, 1972
    ...media to the end that the case could be determined on the law and on the evidence. [177 Colo. 362] In the light of Small v. People, Colo., 479 P.2d 386 (1970), the defendant's contention that the trial judge erred in refusing to grant a change of venue is also without merit. The Small case ......
  • People v. Botham, No. 27525
    • United States
    • Colorado Supreme Court of Colorado
    • June 8, 1981
    ...supra; People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976); Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); Small v. People, 173 Colo. 304, 479 P.2d 386 (1970). ABA Standards for Criminal Justice, 8-3.3 (2d ed. In determining whether the publicity given these grisly homicides crea......
  • Kurtz v. People, No. 23904
    • United States
    • Colorado Supreme Court of Colorado
    • February 22, 1972
    ...Colo. 319] the Voir dire examination of the jury and affidavits submitted to the court. Just as was the case in Small v. People, Colo., 479 P.2d 386, there was not present here the extensive and pervasive publicity as found in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600......
  • Request a trial to view additional results

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