Wheeler v. People

Decision Date03 January 1911
Citation113 P. 312,49 Colo. 402
CourtColorado Supreme Court

Rehearing Denied Feb. 6, 1911.

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Mrs. W W. Wheeler, alias Anna M. Wheeler, was convicted of obtaining money by means of confidence game, and she appeals. Reversed.

Frank McLaughlin and Leslie E. Hubbard, for plaintiff in error.

John T Barnett, Atty. Gen., and James M. Brinson, Deputy Atty. Gen., (Elmer L. Brock, of counsel), for the State.


The defendant in three cases was charged with, tried for, and convicted of, obtaining from different persons their respective moneys by means of confidence games. The cases were consolidated for trial, and separate verdicts rendered in each, finding the defendant guilty as charged. After motions for new trial and in arrest of judgment were interposed and overruled, sentence of the defendant to the penitentiary was imposed in each case, the judgments running concurrently. To reverse these judgments, this suit is prosecuted.

The first case was filed August 10, 1909, and the prosecuting witness therein was Augusta C. McCotter, from whose testimony it appears that she and defendant were slightly acquainted; that the former had done laundry work for the latter; that Mrs. McCotter's husband had died, leaving in her favor some life insurance policies which she had collected; that she was, however, having trouble in the collection of one such policy, and called upon the defendant at her place of residence for advice relative thereto; that defendant had previously, and at that time, told the prosecuting witness of her mining investments, and that the latter would be very lucky in the mining business if she would invest therein. And, quoting from such testimony: 'She [the defendant] asked me to loan her $100 to invest in mining stock, that she could get me big returns. I at first kind of thought differently, but she kept telling me of the returns she could make. * * * I went to the bank the next day (March 18, 1908), and drew out $100 and gave it to her, but before I went out she began talking about different things, and she finally said: 'Don't you think you could put up another hundred?' And I said: 'No, sir! I am saving this money to educate my children.' * * * Q. At this time did she make any claim about being able to read your future? A. She told me, she said: 'I see over your head, there is lots of money, and, if you would invest a little money, you will get good results, you will be lucky.' And she at the same time told me not to tell anybody, because, if I told anybody, I would not be lucky.' Mrs. McCotter further testified that she did not know whether defendant invested the money in mines, that defendant never delivered to her any mining stock or deeds. In cross-examination the following appears: 'Q. And in the conversation that occurred she asked you to invest the money in mines? A. She asked me to lend her the money to put in mining stock. Q. When was she to pay the money back to you? A. Inside of a year. Q. When was the year up? A. The 18th of March, 1909. Q. This money that you had obtained, you went to Mrs. Wheeler and offered her a loan? You wanted to loan her that money, didn't you? A. It was just this way: I wanted to loan her the money if she could make good returns for me, and she said that she could.'

The second case was filed September 1, 1909, and the prosecuting witness therein was Amy E. Lanyon, from whose testimony it appears: That she and defendant became acquainted November 12, 1906, through a friend, Miss Hattenhauer, who had advanced some money to the defendant to invest in mines. That evening the complaining witness, her mother, and Miss Hattenhauer called on the defendant at the latter's request. That the defendant expressed herself as being sorry to see the complaining witness working so hard. That defendant had just returned from Goldfield, and said she had an interest in a mine and wanted to invest the latter's money therein. That she needed $1,000, and prosecuting witness agreed to, and did, give her that amount in payments, the first on November 14, 1906, and the last on September 13, 1907. That the money belonged jointly to prosecuting witness and Mrs. M. A. Lanyon. And quoting from such testimony: 'Q. Did she at that time claim to exercise any powers of vision? A. She said she could see wealth over my head and also great wealth at my feet. Q. Did she say anything else? A. You mean at that time? Q. Yes. A. Nothing at that time in regard to that. Q. What were you relying on? A. She told me she had an interest in this mine; that she required this amount of money to develop it. She said that she had an interest in the mine. Otherwise I wouldn't have given her the money. Q. How much of an interest were you getting in the mining investment? A. I believe it was one-third. It is stated on the paper.' The paper referred to was an agreement or receipt written and brought to Mrs. Wheeler by Miss Lanyon, and signed by the defendant, relative to the transaction in question, and is as follows, to wit: 'November 14, 1906. Received of Mrs. M. A. Lanyon and Miss Amy E. Lanyon one thousand dollars ($1,000), placed in the hands of Mrs. W. W. Wheeler to invest in mines to the best of her ability. After sale of said mines, and three interested parties are satisfied, the remaining profits from said sale are one-half to Mrs. W. W. Wheeler and the other half to aforesaid parties named in this document. [Signed] Mrs. W. W. Wheeler.'

The third case was also filed September 1, 1909, and the prosecuting witness therein was Lelia A. McNutt, from whose testimony it appears: That she met defendant in the millinery store of Mrs. Duffy, who had previously advanced money to the defendant to invest in mines. That the mining proposition was brought up, and defendant told the complaining witness that the latter would be very lucky in mining ventures, and quoting: 'She saw money all over my head and all around me and a lot of money for me, and wanted me to go into it. Q. Did she read your hand? A. She certainly did. Q. What did she say when she read your hand? A. Everything was bright, lots of money around me, and naturally I went into it. Q. Did you have any views on that subject yourself (spiritualism and palmistry)? A. No, sir; I was not raised in that way as I have said. My mother had a horror of it. Q. You are not a believer? A. No, sir; not in spiritualism. Q. State what it was that Mrs....

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