Updike v. People, 12989.

Citation18 P.2d 472, 92 Colo. 125
Case DateJanuary 07, 1933
CourtSupreme Court of Colorado

18 P.2d 472

92 Colo. 125


No. 12989.

Supreme Court of Colorado, En Banc.

January 7, 1933

Rehearing Denied Jan. 19, 1933.

Error to District Court, Garfield County; John T. Shumate, Judge.

J. T. Updike was convicted of obtaining money by false pretenses, and he prosecutes error.


BUTLER, CAMPBELL, and HILLIARD, JJ., dissenting. [18 P.2d 473]

[92 Colo. 127] Dean Driscoll, of Boise, Idaho, and John L. Noonan and W. F. Noonan, both of Glenwood Springs, for plaintiff in error.

Clarence L. Ireland, Atty. Gen., and Wallace S. Porth, Asst. Atty. Gen., for the People.


J. T. Updike was found guilty of obtaining money from Theodore Zadra by false pretenses. The defendant was sentenced to the penitentiary and prosecutes error to review the judgment.

The evidence in support of the information shows, among other things, that there were two corporations by the name of the Updike Sheep Company, one of which was organized under the laws of the state of Colorado and the other under the laws of Idaho. Zadra was a large stockholder in the Colorado corporation, but owned nothing in the Idaho company if he even knew of its existence. Defendant managed and had an interest in both companies, but his greater interests by far were in the Idaho concern, of which he was president. Defendant was an experienced sheep man, but Zadra was not, and one of defendant's methods of deceiving Zadra was to lead the latter to believe that the Colorado corporation owned large quantities of sheep and hay; but in truth, if owned at all, such property was owned by the Idaho company. Defendant also gave Zadra to understand that the latter's investments, for which he sent money or checks to defendant, were being used in the business of the Colorado company. The fact was, however, that defendant knowingly and designedly obtained and diverted most if not all of such funds to his own use or to the [92 Colo. 128] Idaho corporation. A check in the sum of $5,000 given by Zadra to defendant was so employed, and defendant admitted on cross-examination that title to the sheep and hay purchased in the fall of the year 1928 was taken in the name of the Idaho company. At last accounts, the Colorado corporation did not own any sheep or hay whatsoever.

Updike lived in Boise, Idaho. The representations were made in letters written by him in Boise and directed to and received by Zadra at Glenwood Springs, Colo., and by telephone communication by Updike in Boise to Zadra in Denver. Relying upon the representations, Zadra mailed his check to Updike, who received it at Boise and cashed it there. The check was drawn upon the First National Bank of Glenwood Springs, and was payable to the order of Updike. The check bears Updike's indorsement, and also the indorsements of the Updike Sheep Company, the First National Bank of Idaho, the Colorado National Bank, and the Denver branch of the Federal Reserve Bank of Kansas City. Zadra's check was paid by the drawee bank at Glenwood Springs.

The statutory crime of which defendant was convicted is set forth in section 6930, C. L. 1921, which reads in part as follows: 'If any person or persons shall knowingly and [18 P.2d 474] designedly, by any false pretense or pretenses, obtain from any other person or persons any chose in action, money, goods, wares, chattels, effects or other valuable thing whatever, with intent to cheat or defraud any such person or persons of the same, every person so offending shall be deemed a cheat, and upon conviction, shall, where the property obtained is over the value of twenty dollars, be imprisoned in the penitentiary not to exceed ten years. * * *'

1. The information states at considerable length the fraud perpetrated on the prosecuting witness. Solely with reference to a question raised by defendant in attempting a distinction between money and a check for like amount, we quote from that part of the information [92 Colo. 129] which charges the defendant with fraudulently obtaining '$5,000.00 of the value of $5,000.00 of the personal property, goods, chattels and monies of the said Theodore Zadra,' etc. It does not contain any specific reference to a check, and counsel for defendant claim that there is a defect in the information, meaning, we suppose, a variance between the allegation and proof, because, they say, 'the transaction relied upon was based upon a bank check, not upon cash.' The objection is not well taken. We have repeatedly declared that technicalities not affecting substantial rights will not be considered. It is of no consequence whether the property fraudulently obtained was money or a check, as long as it was a thing of value, and in this instance, of exactly the same value, indeed, when it represents precisely the same thing. As we said in Arnett v. People, 91 Colo. 56, 11 P.2d 806: 'It is further urged that the evidence is insufficient to support the verdict because defendants received checks and not money. They received checks and Cross' money thereby authorized to be paid. In these circumstances, it would seem ridiculous to hold that such variance between allegation and proof constitutes reversible error. Compton v. People, 84 Colo. 106, 268 P. 577.'

In Roll v. People, 78 Colo. 589, 243 P. 641, the contention was made that a check was not property, but we said at page 593 of the opinion in 78 Colo. 243 P. 641, 642: '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.'

Briggs v. People, 76 Colo. 591, 233 P. 836, is another case somewhat in point. One of the charges against the defendant there was that he feloniously misapplied a check with intent to defraud a bank, but we said on page [92 Colo. 130] 595 of the opinion in 76 Colo. 233 P. 836, 838, that whether it was check, cash, or draft is wholly immaterial, and also this: 'In other words he put the bank's money in his pocket and spent it.' This terse dismissal of a specious argument might well be applied to the present case.

2. Counsel for defendant inform us that their main contention is that the district court of Garfield county is without jurisdiction. Their theory is that if a crime was committed at all, it was committed in the state of Idaho, for the reason that defendant was charged with the crime of fraudulently obtaining money, and the money on the check was obtained in the state of Idaho. This is said regardless of where the check was obtained, and to emphasize the fact that defendant received the money in Idaho, counsel for defendant insist that the court erred in rejecting an offer of proof that the check was deposited by defendant in the Idaho bank as a cash item, that it was received and accepted as such, and not for collection from the bank at Glenwood Springs on which the check was drawn. It was a bold concept to admit that money instead of a check was obtained by defendant, even for the obvious purpose of defeating the jurisdiction of the Colorado courts; but it does not avail. The rejection of such proof was not prejudicial to defendant; its admission would have served only to aid the cause of the state in demonstrating the value of the check and that defendant converted it to his own use, if further proof had been needed. This and other elements of the crime were fully proven.

3. A crime is an injury to the state where it is committed, and the courts of that state have jurisdiction thereof; this is not disputed. In 16 C. J. at pages 190, 191, § 273, it is said: 'The general rule is that the crime of obtaining money or property by false pretenses is completed where the money or property is obtained, and that, if the pretenses are made within one jurisdiction and the money or property is obtained in another, the person making the representations must be indicted [92 Colo. 131] within the latter jurisdiction. The same rule is applicable to the obtaining of money by means of the confidence game.'

In line with the above, this court has declared that the crime of obtaining money by false pretenses is committed where the property is obtained by the defendant. Pepper v. People, 75 Colo. 348, 225 P. 846; 11 R.C.L. 854. It narrows the question to a determination of where the property or thing of value was obtained. We quote further with approval from 16 C. J. p. 191, § 273: 'Transmission by mail. Where, induced by false pretenses, one transmits by mail to defendant money, drafts, or other writings, such mailing is a delivery to the postmaster as the agent of the defendant, to be forwarded to him, and the offense is committed where [18 P.2d 475] the letter is mailed, and is indictable at such place.' A similar statement will be found in 11 R.C.L. 854, although the text in R.C.L. quotes authority to the contrary.

The time of the completion of the offense of obtaining money by fraud was determined in Stoltz v. People, 59 Colo. 342, 148 P. 865. Section 6930, C. L. 1921, above quoted, is a reprint of section 1849, R. S. 1908, and we said at page 347 of the opinion in 59 Colo. 148 P. 865, 866, in the Stoltz Case: 'We think the offense under the statute (section 1849, R. S. 1908) is complete when [our italics] 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. * * *'

4. It does not make a particle of difference whether the fraudulently obtained check was sold by defendant in Idaho, as his counsel asserts, or deposited there for collection. The question is not where he sold it, but where he obtained it; and whether he sold it or deposited it for collection,...

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