Zarate v. People

• Decision Date: 03 July 1967
• Docket Number: No. 22188,22188
• Parties: Joseph O. ZARATE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 309

429 P.2d 309

163 Colo. 205

Joseph O. ZARATE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 22188.

Supreme Court of Colorado, En Banc.

July 3, 1967.

Victor F. Crepeau, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.

HODGES, Justice.

Zarate, defendant below, was convicted by a jury of obtaining money in the sum of $332 from Mrs. Annie Elizondo, the complaining witness, by the false pretense that he was an attorney at law.

Mrs. Elizondo, the victim, testified that she gave various sums of money to the defendant over at least a six-month period for two purposes: (1) As defendant's fee for services in the handling of some of victim's affairs, including the securing of a loan on real estate, and (2) to pay, for complaining witness and her husband, federal income taxes which were past due. The jury found the amount to be $332, based upon receipts entered as exhibits. Defendant obtained the loan on the real estate but failed to pay the money he received to Internal Revenue Service. She further testified that prior to the initial payment to the defendant and on other numerous occasions, he specifically represented to her that he was an attorney at law, which the evidence shows he was not. Defendant denied that he represented himself to be an attorney at law. Other witnesses were introduced to show common scheme and design and testified to payments of money to the defendant for various services to be rendered, also upon representations by the defendant to them that he was an attorney at law. Further testimony shows that Mrs. Elizondo relied upon this representation in paying money to the defendant for the services to be performed.

Defendant's arguments for reversal center around the refusal of the trial court to give defendant's tendered Instructions--No. 1 through 5 to the jury. Error also is claimed in the giving of Instruction No. 11, and further, the defendant seeks reversal on the grounds that the jury's verdict is contrary to the evidence and the law.

This record on error reflects a fact situation as shown from the evidence which is somewhat difficult to analyze because of the two purposes for which the complaining witness handed over money to the defendant. The money which the victim turned over to the defendant for the specific purpose of paying it to the Internal Revenue Service for past due income taxes of the victim and her husband raises the basic question of whether the victim intended to give over to the defendant both the possession to and the title of the money or to give over to him merely the possession of the money for the purpose of paying it to the Internal Revenue Service. This is the important issue raised on this writ of error because it is generally held that if only the possession of the thing of value is obtained and it is then converted by the accused, then the crime is larceny and not false pretense. To complete the offense of false pretense, it must be established that the victim intended to turn over both title to and possession of the property to the accused. In Welch v. State, 78 Okl.Cr. 180, 146 P.2d 141, a lengthy analysis of the distinction between false pretense and larceny is made and numerous cases are cited supporting the following rule of law as enunciated by the court.

'The distinction between obtaining property by false pretense and larceny by fraud is very narrow. The distinction is: If the owner in parting with the property by false pretense, intends to vest accused with the title as well as the possession, the latter has committed the crime of obtaining the property by false pretense, but if the intention of the owner is to vest accused with the mere possession of the property, and the latter, with the requisite intent, receives it and converts it to his own use, the crime is larceny by fraud.'

This distinction comes from the common law and is therefore adhered to in those jurisdictions having a statute on false pretense similar to C.R.S. 1963, 40--14--2 under which defendant was charged.

In Courtney v. State, 174 Miss. 147, 164 So. 227, it is stated:

'At common law, where one obtains the possession of, but not the title to, property from another by means of a false pretense, and with the requisite intent converts it to his own use, the crime committed is larceny. But if the owner in parting with the property invests the recipient with the title thereto, as well as the possession thereof, no larceny is committed. 9 Halsbury's Law of England (2d Ed.) § 953; 2 Bishop's New Crim. Law (8th Ed.) §§ 477 and 808; 25 C.J. p. 657; 36 C.J. p. 778; Foster v. State, 123 Miss. 721, 86 So. 513. It will thus be seen that the passing of title constitutes the line of demarcation between larceny and false pretense.'

See also Aldrich v. People, 224 Ill. 622, 79 N.E. 964, 7 L.R.A.,N.S., 1149 which describes this distinction in relation to the crime of larceny which is the subject...