dissenting.
I cannot concur in the reversal of the judgment in this case. I am satisfied that the facts established by the people’s evidence, upon which the verdict of the jury placed the stamp of verity, clearly bring the transaction within the pale of the inhibitions of section 222, chapter 48, ’35 C.S.A., which makes it a felony for any person to obtain “from any other person or persons any money * * * by means of * * * any false or bogus checks, or by any other means, instrument or device, * * The devices by which this statute may be violated “are as various as the mind of man is suggestive.” “Obtaining of money by means or use of what is false or bogus is the offense aimed at.” Wheeler v. People, 49 Colo. 402, 113 Pac. 312, Ann. Cas. 1912 A. 755. Here defendant obtained the money of Prowers county by means of Exhibit A, an ordinary form of bank check for $322.50, drawn on the First National Bank of Fort Morgan, Colorado, signed by defendant and complete in all details, except that the blank spaces provided in the form for the insertion of the date and name of the payee were unfilled. The people contend, as the jury concluded, that in fact Exhibit A was a false and bogus check. In Williams v. Territory, 13 Ariz. 27, 108 Pac. 243, 27 L.R.A. (N.S.) 1032, a leading authority in this field, it was held under a statute very similar to ours, that a check is false or bogus when it is a wilfully untrue written order directing a bank to pay money on demand. In that opinion it is stated, “bogus is defined as meaning ‘spurious, fictitious, sham.’ ” That the written devices by means of which defendant secured the money of the people of Prowers county, come within these definitions seems to me to be established overwhelmingly by the evidence of the people.
*589For many years prior to 1937, defendant, a certified public accountant, had audited the accounts of the various county officials of Prowers county under a contract with the county commissioners. During these years, as a matter of convenience, defendant had had a number of his personal checks cashed at the county treasurer’s office. In so far as appears, all these checks were presented to and paid by the bank upon which they were drawn in ordinary business routine. Defendant introduced in evidence fourteen cancelled checks of this type, in the aggregate amount of $565.00 which had thus been cashed in the six-year period preceding 1937. In the fall of that year in the course of a regular audit of the county treasurer’s accounts, defendant discovered a shortage then conceived to be about $6,000 but later by other auditors established as amounting to some $47,000. Defendant verbally reported the shortage to the county treasurer but made no mention of his discovery to the county commissioners, and later, with the knowledge that the shortage still existed and contrary to the purpose of an audit, made a formal report to the county officials expressing that the accounts of the treasurer were in order and balance. At the conclusion of the conversation in which defendant advised the treasurer of the detection of the shortage, or very soon thereafter, defendant asked the treasurer to cash Exhibit A, with which request the latter complied, taking public money from the cash drawer of his office in defendant’s presence for that purpose. Thereafter and within the four months immediately following the discovery of the shortage, defendant obtained in the neighborhood of $2,000 of the monies of Prowers county. In the so-called cash of the treasurer’s office appeared written devices, generally similar to the one which is the basis of the charge here, in face amount equal to the actual money obtained by defendant. Until sometime in 1939, when the treasurer’s transgressions were finally bared, these devices were counted as cash items by the employees of *590the treasurer’s office. Except for one for $25.00, upon which payment was refused by the bank for shortage of funds, not one of the items was ever placed in regular commercial channels for collection or payment. It is undisputed that during the time defendant issued, thése devices and thereafter, he never had in his account in the First National Bank of Fort Morgan, sufficient funds to pay all the checks, or even one-half thereof, at any one time. The money obtained by defendant never has been repaid to Prowers county.
The sudden departure, coincident with the discovery of the shortage, from the long history of bona fide transactions to the devious course shown by the evidence, convinces me that the devices and instruments by which the county’s money was obtained, were “wilfully untrue written orders,” both spurious and sham, and that defendant intended them to be so when they were cashed for him. In this status Exhibit A was, therefore, a false and bogus check within the definition of Williams v. Territory, supra, and so within the scope of the statute.
In a conclusive sort of way, the majority, opinion expresses, “A careful study of the report impels us to say that Exhibit A was not a false or bogus instrument within the purview of section 222, supra.” So far as I can perceive, the opinion advances no reason for this pronouncement, and I think no valid one can be given. If it is the theory of the majority, as some expressions in the opinion seem to indicate, that Exhibit A was not a negotiable instrument and hence not a check within the language of section 222, supra, because blanks provided therein for the date and name of the payee were unfilled by defendant, the misconception is made apparent by the law of negotiable instruments as proclaimed by the uniform act as well as by the authorities. Thereunder, it is well settled that the omission to insert in an instrument the name of the payee is not a feature or defect which affects negotiability. 7 Am. Jur., p. 838, §94. “If an instrument is delivered with a blank space *591for the insertion of the date, the presumption is that authority is conferred on the payee to fill the blank.” 7 Am. Jur., p. 827, §§71, 72. The circumstance that defendant had an account in the bank oh which the checks were drawn, does not prevent their being bogus and false. The existence of the account, while competent for consideration with respect to defendant’s intent at the time he issued the checks, in itself does not preclude his conviction. 22 Am. Jur., p. 475, §58. Should it be the view of the majority — concerning which I am not sure— that because the treasurer who cashed the items in question, was not deceived as to defendant’s fraudulent purpose, the latter was immune from prosecution under section 222, supra, the position is untenable. It is well established that as to public bodies and governmental agencies, the crime of false pretenses may be committed, even though the official who parted with the public money knowingly participated in the fraud or might readily have discovered that such was being attempted. 22 Am. Jur., p. 450, §10. The logic and soundness of this rule are obvious, and its analogy in a confidence-game case is demonstrated by mentioning that the latter offense is considered as being so closely related to the crime of false pretense that the editors of both American Jurisprudence and Corpus Juris have found it advantageous to include both under the false-pretense title. See Am. Jur., p. 481, §73; 15 C.J.S., p. 821.
Expressing the conclusion of the majority of the court that Exhibit A was neither bogus nor false, the writer of the opinion states: “Exhibit A was exactly what defendant represented it to Clark to be, and the latter accepted it as a check in the nature of an I.O.U., to be held until defendant told him to ‘run it thru’.” For the reason I have last given, viz., that neither the participation in, nor knowledge of, defendant’s fraud, by the treasurer, could purge the original acts of the former, it is my belief that the statement quoted from the majority opinion is beside the point. In any event I am *592unable, to find anything in the record to indicate that at the time the treasurer cashed Exhibit A, defendant made any representations whatsoever. Further, although this may be subject to question because of seemingly inconsistency of statement in the testimony of the treasurer, I think it properly may be inferred that defendant’s statement that he would let the treasurer know when the checks should be “run thru,” rather than being made at the time of cashing Exhibit A, was expressed long afterward and when the treasurer was trying privately and unsuccessfully to have defendant take up his checks. I am unable to understand also, how statements by defendant, imputing fraility to the thing he presented as a check, even if made as the opinion recites, can logically afford a basis for declaring it not bogus or false.
For the reasons given I am convinced that the judgment of conviction should be affirmed.
Mr. Justice Burke and Mr. Justice Jackson join in this dissent.