Stoltz v. People

• Decision Date: 03 May 1915
• Docket Number: 7506.
• Citation: 148 P. 865,59 Colo. 342
• Parties: STOLTZ v. PEOPLE.
• Court: Colorado Supreme Court

148 P. 865

59 Colo. 342

STOLTZ v. PEOPLE.

No. 7506.

Supreme Court of Colorado

May 3, 1915

Error to District Court, Delta County; Sprigg Shackleford, Judge.

C. W Stoltz was convicted of obtaining a bank check by false pretenses, and he brings error. Reversed and remanded.

Milton R. Welch, of Delta, Bell, Catlin & Blake and Bell, Stivers & Jordan, all of Montrose, and L. F Twitchell, of Denver, for plaintiff in error.

Fred Farrar, Atty. Gen., Clement F. Crowley, Asst. Atty. Gen., R M. Logan, Dist. Atty., and John R. Charlesworth, Asst. Dist Atty., both of Delta, for the People.

WHITE J.

Stoltz was convicted of obtaining a bank check of the value of $200 from one Bates by false and fraudulent pretenses, and prosecutes this writ of error to the judgment entered upon the verdict.

Plaintiff in error insists that the judgment should be reversed for the following reasons: That the facts as set forth in the information constitute no offense under the law; that the court refused to give to the jury proper instructions requested, and gave improper instructions to defendant's prejudice; and that the evidence was wholly insufficient to sustain the verdict of conviction.

1. The information charges, substantially, that C. W. Stoltz and E. B. Morris knowingly, falsely, fraudulently, and feloniously designated and exhibited to Bates certain reservoirs and reservoir sites, a ditch, ranch, and spring, and the water and water rights of the said reservoir and ditch, 'as then and there being the lands, reservoirs, reservoir sites, ditches, canals, waters, and water rights of, belonging to, and owned by the said the Robideau-Redlands Ditch & Reservoir Coumpany,' a corporation, and designedly, knowingly, fraudulently, and feloniously pretended and represented to Bates that 2,000 shares of the capital stock of such corporation constituted a valuable interest in and to such property in proportion that such shares of the capital stock of the corporation sustained to the total number of shares thereof, with intent to obtain from Bates the aforesaid check, and to cheat and defraud him out of the same; that Bates 'then and there, relying upon and trusting to the false, fraudulent, and felonious pretenses aforesaid, and being induced thereby, did then and there purchase of' Stoltz and Morris the 2,000 shares of the capital stock of the aforesaid corporation for $2,000, and as part payment therefor made and delivered to Stoltz his check upon a designated bank for $200, which was thereafter by Stoltz and Morris converted into cash and to their own use; 'whereas, in truth and in fact, the said lands, reservoirs, reservoir sites, ditches, canals, waters, and water rights' pointed out, designated, and exhibited to Bates were not owned by the Robideau-Redlands Ditch & Reservoir Company, and the 2,000 shares of the capital stock of said corporation so purchased by Bates of Stoltz and Morris did not represent or constitute any interest in the reservoirs, reservoir sites, ditches, waters, and water rights so exhibited to Bates, all of which Stoltz and Morris 'at the time of the making of the false, fraudulent, and felonious pretenses aforesaid' well knew, and Stoltz and Morris 'did, by means of the false, fraudulent, and felonious pretenses aforesaid,' made in the manner and form aforesaid, 'unlawfully, knowingly, designedly, and feloniously obtain of and from' Bates the check of the value of $200, with intent him (the said Bates) 'then and there to cheat and defraud of the same, contrary to the form of the statute,' etc.

It is claimed that the information fails to distinctly allege that defendants represented to Bates that the property shown him was the property of the Robideau-Redlands Ditch & Reservoir Company, and that the negation of the truth of the representations in that regard is only by recital. It will be observed that the averment as to the representations relating to the ownership of the properties is preceded by the words 'as then and there being,' and the negation of such representations and the allegation of the ownership of the properties are preceded by the word 'whereas.' Decisions may be found, perhaps, which hold that statements following like words are mere recital, but we think, in the light of the context, that the averments are sufficiently positive and direct to render the information invulnerable to the objection in question. If it could be properly said that this information, tested by the technical rules of criminal pleading, is defective in the statement of the crime charged, it is not so when measured by the statutory rule (section 1950, R. S. 1908) prescribing the form of pleading in criminal cases.

Every indictment or information is sufficient and good in law which charges the crime substantially in the language of the statute, subject only to those provisions of the national and state Constitutions designed for the protection of life, liberty, and property. The language of the information is that defendants pointed out, designated, and exhibited to Bates certain properties 'as then and there being' the properties 'of, belonging to, and owned by' the said the Robideau-Redlands Ditch & Reservoir Company. The use of the words 'as then and there being' is unfortunate, but, when considered in connection with the words 'pointed out, designated, and exhibited,' and the words 'of, belonging to, and onwed by,' as they appear in the information, they do not render the charge fatally defective. We think the language, when fairly considered, constitutes a positive and distinct averment that the property so designated and pointed out was represented by the defendants to the prosecuting witness to be the property of the designated corporation. This is equally true as to the positive nature of the language negativing such representations and alleging the true ownership of the properties. A positive averment is not transformed into a recital by the mere fact that the averment is preceded by the word 'as' or 'whereas.' Whether such effect follows such use of the words depends upon how the words are connected with other portions of the sentence. The word 'whereas,' as defined in Webster's New International Dictionary, may mean 'when in fact,' 'while on the contrary,' and it is clearly so used in this sense in the information in question. Therefore the language which follows the words, as used, constitutes positive averment, and not recital. 22 Cyc. 294; People v. Ennis, 137 Cal. 263, 70 P. 84.

It is further claimed that, as the information fails to specifically charge loss or damage to Bates, it is fatally defective. We think the offense under the statute (section 1849, R. S. 1908) is complete when a thing of value has been obtained knowingly and designedly from another by false representations or pretenses with an intent to cheat or defraud such person of such property, and that it is unnecessary to either charge or prove an actual pecuniary loss or damage. One may be actually defrauded without suffering pecuniary loss, and is so defrauded when he surrenders his property and receives for it, on account of false representations made to him in order to obtain such property, something substantially different than he would have received had the representations in relation thereto been true. He is then legally injured, for he is deprived of his...