Wright v. People

• Citation: 116 Colo. 306,181 P.2d 447
• Decision Date: 12 May 1947
• Docket Number: 15842.
• Parties: WRIGHT v. PEOPLE.
• Court: Supreme Court of Colorado

181 P.2d 447

116 Colo. 306

WRIGHT v. PEOPLE.

No. 15842.

Supreme Court of Colorado, en Banc.

May 12, 1947

Error to District Court, City and County of Denver; John R. Clark Judge.

George Wright, alias Edward Henry Pierson, alias Earnest Allbright alias Edward J. Cole, alias J. C. Stone, alias Walter Jackson, alias E. C. Black, alias Edward Pearson, alias George Pierson, alias Earnest E. Cunningham, was convicted of forgery and of the confidence game and was sentenced as an habitual criminal, and he brings error.

Affirmed.

Albert T. Frantz, of Denver, for plaintiff in error.

H Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

HAYS, Justice.

In January, 1946, the defendant was employed as a trash hauler and while so engaged, had occasion to gather and remove some rubbish and old paper from the premises of Speer Furniture Company, 3600 West 32d Avenue, Denver, the property of the Company having recently changed hands. The new owners had discarded many old books and papers, including a book of printed bank checks on the United States National Bank of Denver, used by the former owners. The new owners carried their current account in the Central Savings Bank, and accordingly, secured new printed checks of that bank. Defendant retrieved a book of the discarded United States National Bank checks from the trash and took them to his room. Thereafter he filled some of them out, naming fictitious persons as payees, signed them with a fictitious name, and passed them as genuine checks of the Speer Furniture Company to various persons for cash and in payment for merchandise, endorsing same with the name of the fictitious payee. One of such checks in the sum of $40.50 was presented to, and cashed by, the U.S. Drug and Sales Co., and it is upon this check that the information herein is based.

The information contains nine counts. The first two of which are for forgery and the third count for confidence game. The jury returned verdicts of guilty on the first three counts. All the other counts relate to former convictions of the defendant for forgery, larceny, and receiving stolen goods in other states, except count seven which was in Colorado. With respect to the said former convictions the defendant admitted 'his identity,' and proper proceedings were had to establish such 'former convictions and judgments' as provided by chapter 114, Session Laws 1945, relating to punishment for habitual criminals. The defendant was thereupon sentenced as an habitual criminal to life imprisonment in the penitentiary in accordance with the statute.

It is first contended, for reasons presently to be stated, that counts one and two of the information are fatally defective. Count one charged that defendant, 'feloniously did falsely make, alter, counterfeit, and forge a certain instrument,' and count two, that he 'did unlawfully and feloniously utter, publish and pass the same * * * as true and genuine.' Upon this contention, counsel for defendant says in his brief:

'Count one of the information charged the defendant with falsely making, altering, counterfeiting and forging a check. In speaking of the same instrument, the defendant is charged with having falsely made it and with having altered it.'

'A falsely made instrument refers to the instrument itself as being false. An altered instrument presupposes the existence of a genuine instrument.

'Thus, we have contained within the same count two repugnant allegations which negative each other and render the count meaningless.

'The same thing may be said of the second count which charges the defendant with having uttered, published and passed this false, forged, altered, and counterfeited check. A person cannot in relation to the same instrument pass a falsely made and altered instrument. Either it is a false instrument, or it is a genuine instrument which is altered.

'Hence, the second count, is vulnerable to the same attack as was asserted against the first count.'

Both counts one and two are predicated upon section 130, chapter 48, '35 C.S.A. which reads in part: 'Every person who shall falsely make, alter, forge, or counterfeit any * * * check or draft * * * with intent to damage or defraud any person or persons, * * * or shall utter, publish, pass, or attempt to pass as true and genuine, or cause to be uttered, published, passed, or attempted to be passed, as true and genuine, any of the above named false, altered, forged or counterfeited matters as above specified and described, knowing the same to be false, altered, forged or counterfeited, with intent to prejudice, damage or defraud any person or persons * * * shall be deemed guilty of forgery * * *.'

We have said that the above statute 'embraces two definitions of forgery: First, the making of a false check * * *; and, second, attempting to pass it as true and genuine * * *.' People v. McDonald, 53 Colo. 265, 267, 125 P. 114, 115.

The crime denounced by the above statute is forgery. It provides that such crime may be committed in any one of several different ways, that is--falsely 'making' or 'altering' or 'forging' or 'counterfeiting' or 'uttering', etc. No matter in which way the act is violated, the crime committed is forgery. Consequently, there can be no prejudice resulting to the defendant by reciting in the information several ways the crime may be committed. If defendant violated the statute in only one way, the fact that other ways were alleged is mere surplusage and not prejudicial to his rights in any manner.

We have consistently held that an information or indictment which describes an offense, either in the language of the statute or so plainly that the nature of the crime may be readily and easily understood by the jury, is sufficient. Albert v. People, 90 Colo. 219, 7 P.2d 822; Helser v. People, 100 Colo. 371, 68 P.2d 543.

The information in the instant case describes the offense in the language of the statute, and there could be no reason for misunderstanding the meaning thereof, by either the defendant or the jury. The substantial rights of the defendant have not been prejudiced or affected in any manner, and under such circumstances we cannot interfere. ' 35 C.S.A. c. 48, § 490; Manship v. People, 99 Colo. 1, 58, P.2d 1215; Woolsey v. People, 98 Colo. 62, 53 P.2d 596; Grandbouche v. People, 104 Colo. 175, 89 P.2d 577; Cole v. People, 92 Colo. 145, 18 P.2d 470, 471.

In the case last above cited the contention was made that the information was "too uncertain, inconsistent and repugnant to inform the defendants of the nature and cause of the accusation or to support a judgment," and that it charges two separate crimes, that of receiving deposits in an insolvent bank, and larceny. In disposing of this contention we said 92 Colo. at page 150, 18 P.2d at page 472: '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.'

We accordingly hold that counts one and two of the information, and the conviction of defendant thereon, are in all respects valid.

The next contention of counsel for defendant relates to the third count of the information. He concedes that said count charges the commission of the offense of confidence game denounced by section 222 of chapter 48, of the statute in manner and form required by section 223 of the same chapter but argues that the last above mentioned section is too indefinite because of the use of the abbreviation 'etc.' in the following excerpt from that section: 'It shall be deemed and held a sufficient description of the offense to charge that the accused did, on, etc., unlawfully and feloniously obtain * * *.'

The validity of this statute was considered in the following cases wherein we expressly held that the statute is not obnoxious to the constitutional provision to which reference is made. Lace v. People, 43 Colo. 199, 95 P. 302; People v. Martin, 78 Colo. 200, 240 P. 695.

'The meaning of the phrase 'et cetera' or its abbreviation 'etc.' depends largely on the context of the instrument, the description and enumeration of matters preceding the term, and the subject matter to which it is applied. When used in a statute, the words should be given their usual and natural significance. * * *' 50 Am.Jur., p. 269, § 285.

When so construed, there can be no doubt that the abbreviation 'etc.', as used in the statute under consideration, means the time when the alleged offense was committed, and takes the place of 'on the ___ day of _____, 19__.' Counsel for defendant in his brief says that the word is meaningless, and that in the use thereof it is necessary to 'infer the intent of the legislature.' If that is true, then its use was harmless and without effect, and should be treated as mere surplusage. 1 Am.Jur. p. 119, § 11.

The present contention, like the former one, is highly technical and relates to matters of form and not to the substantial rights of the defendant. Count three of the information, in plain and unambiguous language, charged defendant with the crime of confidence game and alleged that he 'did unlawfully and feloniously obtain from Edward Lisenring * * * thirty-six dollars ($36....