Woolsey v. People

• Citation: 98 Colo. 62,53 P.2d 596
• Decision Date: 25 November 1935
• Docket Number: 13659.
• Parties: WOOLSEY v. PEOPLE.
• Court: Supreme Court of Colorado

53 P.2d 596

98 Colo. 62

WOOLSEY v. PEOPLE.

No. 13659.

Supreme Court of Colorado, En Banc.

November 25, 1935

Rehearing Denied Jan. 13, 1936.

Error to District Court, Yuma County; Arlington Taylor, Judge.

H. E Woolsey was convicted of assenting, as an officer and director of a bank, to reception of a deposit while the bank was insolvent, and he brings error.

Affirmed.

HOLLAND HILLIARD, and BOUCK, JJ., dissenting.

Thomas H. Gibson, of Denver, for plaintiff in error.

Paul P Prosser, Atty. Gen., and Walter F. Scherer, Asst. Atty. Gen., for the People.

YOUNG Justice.

Plaintiff in error, Woolsey, defendant in the trial court, an officer and director of the Union State Bank of Yuma, Colo., was prosecuted under a charge of assenting to the reception of a deposit in said bank while it was insolvent, with full knowledge of such insolvency.

The information, so far as here material, and omitting the formal parts, charges as follows: 'That Fred H. Cole, Sr., Alfred Itten, H. E. Woolsey, M. I. Stebbins and M. M. Dickson and each of them, late of the County of Yuma and State of Colorado, on or about the 20th day of October in the year of our Lord one thousand nine hundred and thirty-one at and within the County and State aforesaid, being then and there officers and directors of The Union State Bank of Yuma, Colorado, a bank duly incorporated, organized and existing under and by virtue of the laws of the State of Colorado and carrying on a general banking business in the Town of Yuma in the County of Yuma and State of Colorado, did then and there fraudulently, knowingly and feloniously receive and assent to the reception of a certain deposit of money, to-wit, the sum of $21.79 in money, of the value of $21.79 and a certain deposit in bank checks, to-wit: [here follows a detailed list of bank checks and amounts totalling $37.85] of the personal property and moneys of the Equity Cooperative Oil Company, a corporation, duly incorporated, organized and existing under the laws of the State of Colorado, by the said bank; the said The Union State Bank of Yuma, Colorado, a banking corporation, being then and there insolvent and that they, the said Fred H. Cole, Sr., Alfred Itten, H. E. Woolsey, M. I. Stebbins, M. M. Dickson, and each of them, at the time and Before the reception of the deposit had full knowledge of the fact that the said The Union State Bank of Yuma, Colorado, a banking corporation, was insolvent; and so the said Fred H. Cole, Sr., Alfred Itten, H. E. Woolsey, M. I. Stebbins and M. M. Dickson and each of them in the manner and form aforesaid then and there did wilfully, unlawfully and feloniously steal, take and carry away the money and other valuable things of the said The Equity Cooperative Oil Company, a corporation, of the total value of $59.64 as aforesaid, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the same People of the State of Colorado.'

The statutes under which this prosecution was brought are: Section 2676, C.L.1921, being section 40, chapter 44, Session Laws 1913 (page 127), which is as follows: 'No bank shall receive any deposit when it is insolvent, nor shall any officer, director or employee of any bank knowingly permit the same. An action may be had to recover any deposits received in violation hereof, and the bank and all officers, directors and employees thereof knowingly permitting the same, and their personal representatives, may be joined as defendants, and joint and several judgment be recovered against them. No officer, director or employee of any bank shall receive or assent to the reception of any deposit of money or other valuable thing by such bank or create or assent to the creation of any debt or liability by such bank after he shall have had knowledge of the fact that such bank is insolvent. Upon the trial of any person charged with an offense under this section, evidence of the failure of such bank at any time within thirty days after the reception of such deposit or the creation of such indebtedness, shall be received as prima facie evidence of knowledge on the part of the person charged, that such bank was insolvent at the time of the reception of such deposit or the creation of such indebtedness.' And section 2740, C.L.1921, being section 85, chapter 44, Session Laws of 1913 (page 137), reading: 'Any person who shall wilfully or knowingly fail to perform any act required, and as required by sections 22, 23, 40, 42, 58 and 63 hereof, or who shall commit any act in violation of said sections, shall be guilty of a felony, and upon conviction shall be punished by a fine of not to exceed two thousand dollars, or by imprisonment in the penitentiary for a term not to exceed twenty years, or by both such fine and imprisonment.'

The foregoing superseded similar sections to be found in Session Laws 1885, at page 50, and Revised States 1908, § 281, which were repealed by the 1913 act. The act of 1885 was substantially the same as the act of 1913, except that it stated that one who violated its provisions 'shall be deemed guilty of larceny, and on conviction thereof be punished by imprisonment in the penitentiary,' etc., while the later act provides that the doing of the same things inhibited by the former law shall constitute a felony to be punished as in the act provided.

The form of information used in the case under consideration is substantially the same as that used in the cases of Robertson v. People, 20 Colo. 279, 38 P. 326, and McClure v. People, 27 Colo. 358, 61 P. 612. Both of these cases were prosecuted under the 1885 act.

The defendant in the present case contends that the information on which he was tried charges him with larceny, and that it was error for the court to give instruction No. 1, because that instruction failed to state that 'in the manner and form aforesaid' a larceny was committed. The instruction correctly states the crime charged in the information and sets out the essential elements, proof of which was necessary to establish defendant's guilt. The information in this case is the identical information passed upon by this court in the case of Cole v. People, 92 Colo. 145, 18 P.2d 470, 471. Cole was a codefendant, tried separately under the same information which is now Before us for consideration. The information was attacked in the Cole Case on the ground that it charged two separate and distinct crimes. In disposing of that objection the court, in construing the information, used words so pertinent to the questions here involved that we deem it unnecessary to do more than quote the former holding of our court in that case. On this point Mr. Justice Butler used the following language:

'Another contention is that the information 'is too uncertain, inconsistent and repugnant to inform the defendants of the nature and cause of the accusation or to support a judgment.' In support of such contention, it is said that the information charges two separate and distinct crimes: (1) Receiving a deposit with knowledge of the bank's insolvency, which is made a crime by the act of 1913, supra; and (2) larceny, which is not mentioned in that act.

'The information follows the one involved in Robertson v. People, 20 Colo. 279, 38 P. 326. That case was decided under Session Laws of 1885, page 50, which provided that an officer, etc., of a bank who should receive, etc., a deposit, knowing the bank to be insolvent, should be deemed guilty of larceny. In the act of 1913, supra, such conduct is made a substantive crime; there is no reference to larceny. The information charges that the defendants, being officers, etc., of the Union State Bank of Yuma, knowing the bank to be insolvent, did feloniously, etc., receive, and assent to the reception of, a certain deposit of money and bank checks, 'and so,' the said defendants, 'in the manner and form aforesaid,' did 'then and there' feloniously, etc., 'steal, take and carry away' the money and other valuable things of the depositor. The information does not charge two crimes. It correctly charges conduct that the act of 1913 declares to be a crime, and then mistakenly alleges, in substance, that by so doing the defendants committed larceny. The legal conclusion that such conduct constitutes larceny is erroneous, of course, but the allegation did not, indeed, it could not, mislead the defendants. The allegation has no proper place in the information; but its insertion did not tend to prejudice the substantial rights of the defendants on the merits, and therefore is no ground for the reversal of the judgment. C.L.§ 7103. The trial court properly rejected it as surplusage.

'The situation discussed in paragraph 3 is made the basis of objection to certain of the instructions and to the verdict of the jury. The views expressed in paragraph 3 sufficiently answer such objection. The objection is without merit.'

A rehearing in the Cole Case was denied January 30, 1933, and the trial of the case here under consideration was begun April 18, 1934, more than a year after that decision. The chief counsel in the Cole Case was the leading counsel for defendant in the trial of this case. The decision in the Cole Case was available in the construction of identically the same information under which the defendant in this case was convicted. That decision informed the defendant of the constituent elements of the crime with which he was charged, and the issues he had to meet in order to refute that charge. Neither the defendant nor his counsel could possibly have been misled in any respect as to the law here applicable in the light of the decision in the Cole Case. The information charged the crime defined by statute and not the crime of larceny.

The trial of this cause...