Zarate v. People, No. 22188

Docket NºNo. 22188
Citation429 P.2d 309, 163 Colo. 205
Case DateJuly 03, 1967
CourtSupreme Court of Colorado

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.

[163 Colo. 206]

Page 310

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.

[163 Colo. 207] 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

Page 311

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.

[163 Colo. 208] 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,...

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18 practice notes
  • People v. Nunez, No. 91SC576
    • United States
    • Colorado Supreme Court of Colorado
    • November 9, 1992
    ...v. Parsons, 199 Colo. 421, 422, 610 P.2d 93, 94 (1980); Nora v. People, 176 Colo. 454, 456, 491 P.2d 62, 64 (1971); Zarate v. People, 163 Colo. 205, 211, 429 P.2d 309, 312-13 Colorado's approach to the necessity to instruct on a defendant's theory of the case is the general rule. See 2 Char......
  • Connolly v. Asbestos Abatement, Inc. (In re Iley), Case No. 15-23985 EEB
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado
    • September 17, 2019
    ...least at one time, recognized a similar distinction between the common law crimes of larceny and false pretense. See Zarate v. People , 163 Colo. 205, 429 P.2d 309, 311 (1967) (noting that the distinction between obtaining property by false pretense and larceny is "very narrow."); West v. R......
  • People v. Jones, No. 81SC260
    • United States
    • Colorado Supreme Court of Colorado
    • January 9, 1984
    ...see also, e.g., People v. Moya, 182 Colo. 290, 512 P.2d 1155 (1973); Nora v. People, 176 Colo. 454, 491 P.2d 62 (1971); Zarate v. People, 163 Colo. 205, 429 P.2d 309 (1969); Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962). A new trial is accordingly Because a new trial is necessary, we......
  • Marn v. People, No. 23879
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 1971
    ...45 Colo. 1, 99 P. 1009; Payne v. People, 110 Colo. 236, 132 P.2d 441; Wertz v. People, 160 Colo. 260, 418 P.2d 169, and Zarate v. People, 163 Colo. 205, 429 P.2d 309. We have examined the instruction in question here and it does not fit within the cases concerning factual situations, involv......
  • Request a trial to view additional results
18 cases
  • People v. Nunez, No. 91SC576
    • United States
    • Colorado Supreme Court of Colorado
    • November 9, 1992
    ...v. Parsons, 199 Colo. 421, 422, 610 P.2d 93, 94 (1980); Nora v. People, 176 Colo. 454, 456, 491 P.2d 62, 64 (1971); Zarate v. People, 163 Colo. 205, 211, 429 P.2d 309, 312-13 Colorado's approach to the necessity to instruct on a defendant's theory of the case is the general rule. See 2 Char......
  • Connolly v. Asbestos Abatement, Inc. (In re Iley), Case No. 15-23985 EEB
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado
    • September 17, 2019
    ...least at one time, recognized a similar distinction between the common law crimes of larceny and false pretense. See Zarate v. People , 163 Colo. 205, 429 P.2d 309, 311 (1967) (noting that the distinction between obtaining property by false pretense and larceny is "very narrow."); West v. R......
  • People v. Jones, No. 81SC260
    • United States
    • Colorado Supreme Court of Colorado
    • January 9, 1984
    ...see also, e.g., People v. Moya, 182 Colo. 290, 512 P.2d 1155 (1973); Nora v. People, 176 Colo. 454, 491 P.2d 62 (1971); Zarate v. People, 163 Colo. 205, 429 P.2d 309 (1969); Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962). A new trial is accordingly Because a new trial is necessary, we......
  • Marn v. People, No. 23879
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 1971
    ...45 Colo. 1, 99 P. 1009; Payne v. People, 110 Colo. 236, 132 P.2d 441; Wertz v. People, 160 Colo. 260, 418 P.2d 169, and Zarate v. People, 163 Colo. 205, 429 P.2d 309. We have examined the instruction in question here and it does not fit within the cases concerning factual situations, involv......
  • Request a trial to view additional results

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