Shepherd v. People

Mr. Justice Bock

delivered the opinion of the court.

Plaintiff in error, to whom we hereinafter refer as defendant, was charged in an indictment as follows: “That F. E. Shepherd, on or about the 23rd day of November, 1937, in Prowers county, did then and there unlawfully and feloniously obtain from Prowers county, Colorado, its money, to-wit, the sum of three hundred twenty-two dollars and fifty cents ($322.50) in lawful money of the United States of America, of the value of three hundred twenty-two dollars and fifty cents ($322.50), by means and use of the confidence game.” Of this charge the jury returned a verdict of guilty, and judgment was entered accordingly, which judgment we are asked to review on writ of error.

The grounds for reversal may be summarized in a single proposition that the evidence did not sustain the charge. It is elementary that a defendant can be convicted only of the crime with which he is charged, and no other. Evidence of the commission of a crime different than that charged will not sustain a verdict of guilty thereon.

The pertinent portion of section 222, chapter 48, ’35 C.S.A., upon which the indictment herein is based, reads as follows: “Every person who shall obtain * * * from any other person or persons, any money * * * by means of * * * any false or bogus checks, * * * shall be liable to indictment, and on conviction shall be punished by imprisonment in the penitentiary for any term not less than one year, nor more than twenty years.” On review we assume that the jury adopted that evidence, or any reasonable inference therefrom, which supports its verdict of guilty. Hershorn v. People, 108 Colo. 43, 46, 113 P. (2d) 680.

A brief summary of the evidence, as disclosed by the record before us, is as follows:

For a number of years defendant was the employed auditor of Prowers county, making audits of all its offices. During that time Clark, the county treasurer, who was a very good friend of defendant, cashed a number of personal checks, not here involved. In the fall of 1937 defendant discovered an approximate shortage of $6,000 in the accounts of Clark as county treasurer, but did not report the same to the county commissioners, because he thought that Clark was very well*off financially, and promised to repay the shortage. In the meantime he suggested to Clark that he place an I.O.U. in the amount of that shortage in the cash drawer of the treasurer. At about the same time defendant obtained from Clark, as county treasurer, the sum of $322.50 on what is known as people’s exhibit A, to which we hereinafter refer in more detail. The record is not entirely clear whether this sum was paid by Clark to defendant after discovery of the shortage in Clark’s account, but, under the circumstances, for our purpose, we assume that it was. For this cash there was substituted and placed in the cash drawer of the treasurer, people’s exhibit A, which is an undated check in the sum' of $322.50, signed by defendant, and in which the space for the name of the payee is left blank. This check was not endorsed by anyone, never was presented for payment, and Clark knew that it would not be cashed until defendant informed him to “run it thru.” This is the alleged false or bogus check upon which the charge here involved is predicated. Defendant knew that the money he received on this check belonged to Prowers county; however, the county commissioners had no knowledge of the use of the check, nor of the transaction related thereto, until confession was made by Clark in November, 1939. In the meantime another auditor was retained in 1938, whose audit did not show the presencé of this check as ¿ cash item in Clark’s accounts, and who failed to find any shortage. Not until November, 1939, did the second auditor ascertain that there was a shortage in Clark’s account in the sum of approximately $47,000, and the latter thereafter pleaded guilty to the charge of embezzlement.

There were other similar checks negotiated with Clark in the same manner, in at least two of which the facts are substantially different, in that they were explained by defendant on a bona fide basis, which explanation was not controverted. That defendant had an account in the bank upon which the checks, including exhibit A, were drawn is not questioned, but there is evidence that the balance in the bank was not sufficient to meet their payment. Most of the facts here recited are emphatically denied by defendant, but, as already stated, after verdict we assume them to be true.

One of the contentions of counsel for defendant is that no person can be convicted under section 222 unless he is a confidence man as defined in section 226, chapter 48. In our opinion, this contention is without merit. In support thereof counsel cite the case of Chilton v. People, 95 Colo. 268, 35 P. (2d) 870. In that case it was held that the facts did not bring it within the class defined in said section 222, while here the charge is within said section; moreover, only one justice concurred in the Chilton opinion, and it therefore cannot be considered as a precedent binding upon us.

The question whether the check in the instant case is a false or bogus writing is of serious import. Section 222 specifies the use of some false or bogus instrument or device — in this instance an alleged check— as distinguished from mere words, however false or fraudulent. Wheeler v. People, 49 Colo. 402, 407, 113 Pac. 312; Powers v. People, 53 Colo. 43, 46, 123 Pac. 642; Elliott v. People, 56 Colo. 236, 238, 138 Pac. 39; Davis v. People, 96 Colo. 212, 215, 40 P. (2d) 968. See, also, 22 Am. Jur., p. 482, §74. Not every fraud is a confidence game within the meaning of the statute. Davis v. People, supra.

A careful study of the record impels us to say that exhibit A was not a false or bogus instrument within the purview of section 222, supra. This also applies to the checks admitted in evidence to show other offenses. 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.” Counsel for the people admit that Clark was not in any manner misled or deceived by defendant. The use of the county funds, and as such obtained by defendant through Clark, was entirely unlawful, but we here are concerned only with the crime charged, and if another crime was committed by defendant, which is a matter not now before us, action therein rests with the district attorney, whose responsibility it is. The county treasurer, in the light of the record before us, had no authority to pay out the funds of the county in the manner in which he did in this case, but there are no facts from which we are able to say that defendant obtained the amount of $322.50 from Prowers county by means of false or bogus checks, and the attorney general impliedly concedes that he has found no authority to support such a position. Defendant disclosed to Clark, when he gave him exhibit A, that he did not have sufficient funds in the bank to meet the check, and, the disclosure being made at the time of the transaction, no crime of confidence game by means of a false or bogus check was committed. Wheeler v. People, supra; Pierce v. People, 81 Ill. 98; Huckaby v. State, 22 Okla. Crim. 376, 211 Pac. 525, 526. In the case of Williams v. Territory, 13 Ariz. 27, 108 Pac. 243, 27 L.R.A. (N.S.) 1032, the offense of confidence game was not involved. What is more important, in that case the defendant obtained money on his check, drawn on a bank in which he never had funds.

We recognize that the unlawful transactions disclosed by the evidence in which Clark and defendant participated, and through which money of Prowers county was misappropriated, cannot be condoned; but our consideration is limited to the charge upon which defendant was indicted and tried, and the facts appearing in the record do not support that charge.

In view of our conclusions, it is unnecessary that we consider other contentions presented by the parties. The judgment is reversed and the case remanded, with directions to dismiss the indictment.

Mr. Justice Knous, Mr. Justice Burke and Mr. Justice Jacks on dissent.