La Vielle v. People, 15322.
| Decision Date | 05 February 1945 |
| Docket Number | 15322. |
| Citation | 113 Colo. 277,157 P.2d 621 |
| Parties | LA VIELLE v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; Joseph J Walsh, Judge.
Ruth Gross LaVielle was convicted of conspiracy to embezzle public funds of the State, and she brings error.
Reversed.
Evidence was insufficient to support conviction of civil service clerk typist who was assigned to work for state barber board of conspiracy to embezzle public funds.
Byron G. Rogers, of Denver, for plaintiff in error.
Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and James S. Henderson, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, to whom we shall refer hereinafter as the defendant, was convicted of conspiracy to embezzle public funds of the State of Colorado, under the same information and in the same jury trial as was John F. Starr, plaintiff in error in case No. 15321, wherein the judgment was affirmed the opinion in which is reported at page 135 of 157 P.2d as Starr v. People. Both cases came here upon the same record and as has been stipulated by the parties and approved by us, the instant proceeding is considered upon the abstract of the record filed in the Starr case but with separate briefs.
Inter alia, defendant seeks reversal of the judgment of conviction against her upon the ground that the court erred in failing to sustain her motion for a directed verdict of not guilty based upon the insufficiency of the evidence to warrant a conviction of the offense charged.
Since we are convinced that defendant's contentions on this point are valid, no necessity arises for the consideration of the other assignments of error advanced.
The general facts surrounding the transaction are well stated in the opinion in Starr v. People, supra, and except for certain items of evidence peculiarly pertinent to the situation of this defendant, no further detailed recital thereof need be made herein.
The conduct which we have held in Starr v. People, supra, was cognizable as a conspiracy to embezzle the public funds of the state, unquestionably was induced by a change in the statutory law pertaining to the duties and operation of the State Board of Barber Examiners. Prior to the adoption of the legislative enactments cited in the Starr opinion, the Barber Board had functioned without a legislative appropriation and without incident controls on funds collected by it for barber licenses, examinations, etc. In this previous situation members of the Board regularly had allowed themselves per diem pay for Sundays and holidays and from such fund also had made expenditures for their traveling expenses to conventions, for charitable donations and the purchase of supplies and equipment. With the advent of the Reorganization Bill and the attendant restrictions on disbursements, the last described practices of the Board no longer could be pursued. To circumvent the new requirements, Ackers, then the secretary-treasurer of the Board, and as such charged with the performance of executive functions including the collection and custody of license fees until their lodgment in the State Treasury, commenced paying cash therefrom to himself and the other members of the Board, with their tacit consent, for per diem allowances in addition to those which legally were permissible and regularly voucherable against the appropriation therefor. In addition, from cash on hand the secretary-treasurer, with the knowledge and consent of at least some members of the Board, in cash paid expenses of trips, contributions and donations as detailed in the Starr opinion. In the beginning the practice was made feasible by the circumstance that in the interims between the making of deposits of collected fees with the State Treasurer and because of the retention by the Board of the proceeds of partial payments on license fees as described in the opinion in the Starr case, the secretary-treasurer of the Board generally had substantial sums of cash at hand. The partial payment cash was kept in a separate drawer of the safe in the Board's office and was not audited by the State, since theoretically a license and official receipt did not issue until the installments paid by a given applicant met the total fee due. In time, by the surreptitious cash withdrawals mentioned above, this drawer was emptied of cash. Thereafter, to make payments to board members and for the other purposes mentioned, the secretary-treasurer took cash from the regular license receipts which were kept, until deposit with the State Treasurer, in another drawer in the safe. The items therein were subject to audit by the State. To avoid detection of abstractions of cash therefrom it thus became necessary to devise some scheme for concealing the shortages from the auditor. The contingency was met by the extension to paid licenses of the plan which the Board traditionally had followed in the issuances of 'complimentary' licenses. In the case of paid licenses successively numbered official receipts regularly were issued from a book kept for that purpose and with licenses bearing numbers respectively corresponding with the receipts were delivered to the licensees. The stubs of this receipt book thus reflected accurately the amount of money received as well as the number of the license issued and was audited to check the receipts deposited with the State Treasurer. In the case of so-called 'complimentary licenses', which the Board members, for reasons best known to them, issued to individuals of their choice, no fees were collected, hence no receipt was issued and the license was given a fictitious number. Thus, from an examination of the official receipt book, no auditor could determine or would suspect that licenses other than as shown therein had been issued. In the exigencies arising from the abstractions of cash we have mentioned, this practice was expanded to include 'covering up' the receipt of fees for paid licenses. In operation, as occasion required, an official receipt for a fee paid was not made nor issued, but to lull the licensee a license bearing a number seized 'out of the air' was sent to him. Thus, short of a check of the applications or of licenses outstanding in the hands of licensees, an audit of the books of the Board would disclose no variance between the receipts and cash received and no shortage in the latter. Such were the procedures involved. The objective was to secure moneys, above those lawfully voucherable, for members of the Barber's Board by abstractions of cash from public moneys of the State in the hands of the Board.
It is fundamental, that to convict one of the crime of conspiracy at least three material elements must attend beyond a reasonable doubt. The first of these is that there must be a combination of two or more persons. The second essential is the existence of an unlawful purpose to be accomplished which in Colorado must amount to a crime. Olde v. People, 112 Colo. 15, 145 P.2d 100. The third element is that 'there must be a real agreement, combination, or confederation with a common design; mere...
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Feltes v. People
...to accomplish an unlawful purpose, which in this state must amount to a crime. People v. Armijo, Colo., 491 P.2d 1384; LaVielle v. People, 113 Colo. 277, 157 P.2d 621. The record here would not support a conviction for an overall conspiracy of all the individuals charged because the first o......
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...and a design to achieve the criminal purpose which is the object of the conspiracy. E.g., Watkins v. People, supra; LaVielle v. People, 113 Colo. 277, 157 P.2d 621 (1945). A charge of conspiracy, in other words, has legal significance only with respect to some other crime which is the objec......
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