Opinion
No. 13,190.
Decided November 27, 1933. Rehearing denied January 22, 1934. Motion to stay remittitur and correct mandate overruled February 26, 1934.
Plaintiff in error was convicted of obtaining money for corporate stock by a swindling or cheating transaction.
Affirmed.
1. CRIMINAL LAW — Information — Sufficiency. An information which conforms to the specifications laid down by the statute concerning the offense charged, is sufficient.
2. Statutory Crimes — Intent. In statutory crimes intent is not a necessary element.
3. Statutory Crimes — Intent — Information. If intent is a necessary element of the statutory crime of obtaining money for corporate stock by swindling or cheating, it is covered by the words, "swindling or cheating."
4. Statutes — Jury Powers — Constitutional Law. In so far as a criminal statute attempts to confer upon juries the power to determine the law in criminal cases in violation of constitutional provisions, it is void.
5. Constitutional Law — Statutes Void in Part. Where a section of a criminal statute is in no respect essential to the remainder of the act, and there is no reason to imagine that the legislature would not have passed it with the section eliminated, such section may be declared void and the balance of the act valid.
6. Appeal and Error. Defendant in a criminal case may not successfully assign error on alleged irregular court proceedings to which he neither objects nor offers a substitute.
7. Statutes — Corporate Stock Swindles — Validity. The contention that chapter 197, S. L. '19, concerning corporate stock swindling operations, is so ambiguous, unintelligible and uncertain as to render it void, overruled.
8. Statute of Limitations — Pleading — Evidence. In Colorado, defendant in a criminal case may plead the statute of limitations specially or meet the question by evidence under the general issue. If he pleads the statute, the prosecutor should reply with the exception; if he files no plea but offers evidence, the prosecutor may meet the evidence with rebuttal testimony.
9. Pleading — Court Discretion. Where an issue in a criminal case is one that need not be raised by special plea, if so raised, it is within the court's discretion to permit the filing of an answer thereto after the jury is sworn, particularly where the plea is withheld until the beginning of the trial.
10. Directed Verdict. Motion by defendant for a directed verdict in as prosecution for swindling in corporate stock operations, held properly overruled.
11. Statute of Limitations — Practice. Special verdict on a plea in bar, based upon the running of the statute of limitations, is not necessary where the issue is presented to the jury under the general issue without objection.
12. Trial — Misconduct of Juror — Private Interrogation by Court. Private conference of the trial judge and a juror charged with misconduct held, under the attending facts and circumstances, to be without prejudice to defendant's rights and not reversible error.
13. Trial — Proceedings Out of Presence of Defendant. Repeated warning to trial courts concerning conferences with jury or jurors in criminal cases out of the presence of defendant and his counsel.
On Motion to Stay Remittitur and Correct Mandate.
14. SUPREME COURT — Criminal Law — Divided Court — Statutes. Section 7116 of the Compiled Laws of 1921, to the effect that a majority of the justices of the Supreme Court shall concur in the affirmance of a judgment of conviction in a criminal case, has been repealed.
15. Criminal Law — Divided Court. On motion to stay remittitur and correct mandate in a criminal case, the Supreme Court adheres to its previous ruling denying a petition for rehearing, and the motion is overruled, three justices concurring, two dissenting and two not participating.
Error to the District Court of the City and County of Denver, Hon. Frank McDonough, Sr., Judge.
Mr. JOHN R. ADAMS, Mr. CHARLES GINSBERG, for plaintiff in error.
Mr. PAUL P. PROSSER, Attorney General, Mr. CHARLES H. QUEARY, Assistant, for the people.
PLAINTIFF in error, who is the Dill mentioned in the second paragraph of our opinion in Crane and Flynn v. People, 91 Colo. 21, 11 P.2d 567, is hereinafter referred to by name. He was convicted of a violation of section 6946, C. L. 1921, by obtaining money for corporate stock by a swindling or cheating transaction, and sentenced to a term of from four to ten years in the penitentiary. To review that judgment he prosecutes this writ. The cause was at issue here August 20, last.
The information herein was filed February 17, 1932, charging an offense committed April 1, 1928. On April 4, 1932, defendant filed a demurrer, a motion to quash, and a plea in bar. The demurrer raised the question of sufficient facts; the motion to quash raised the question of the constitutionality of the statute; and the plea in bar, alleging that defendant had not been a fugitive from justice, raised the question of the statute of limitations. The demurrer and motion to quash were submitted instanter and overruled and the trial then opened by agreement. After the jury was impaneled and sworn, judge, counsel and defendant repaired to chambers where a motion for a directed verdict, on the ground of no answer to the plea in bar, was presented. The district attorney called attention to the fact that the plea had just been presented and no opportunity had yet been afforded to file an answer thereto. He also contended that no such answer was necessary and that without it the question was triable under the general issue. However, he asked leave to file. The motion for directed verdict was overruled and leave granted to answer the plea. Later, the same day, such an answer was filed, in which it was alleged that defendant had been a fugitive from justice from July 25, 1929, to October 6, 1931. Recess was taken to the morning of April 5, at which time defendant objected to any testimony in support of the answer to the plea in bar. Ruling on that objection was reserved and the trial proceeded. The evidence so objected to was therein admitted. At the close of all the evidence defendant again moved for a directed verdict and his motion was overruled. No objection was made to any instruction given the jury and no requested instruction was refused.
The morass out of which this information arose may be thus briefly described: Through a series of corporation organizations and transformations, here immaterial, there came into being the Crown Hill Cemetery Association (hereinafter referred to as the Cemetery Association), operating a cemetery and building a million dollar mausoleum, and Associated Industries, another corporation, which owned practically all the stock of the Cemetery Association. One Crane, who was the Crane of Crane et al. v. People, supra, became the president of Associated Industries, and one Flynn, who was the Flynn in that case, became treasurer, and Dill vice president. These men inaugurated and conducted a high powered stock selling campaign by which cemetery stock to the extent of two and one-quarter million dollars was unloaded on the public, and of that sum all but about $160,000 was paid in. Then the Cemetery Association went into receivership, Associated Industries failed, and the whole structure collapsed.
The contentions made and argued, under the assignments herein, may be thus briefly summarized: (1) The demurrer to the information should have been sustained; (2) the motion to quash should have been sustained; (3) defendant's objection to the filing of the answer to the plea in bar should have been sustained; (4) defendant's motion for a directed verdict, presented at the close of all the evidence, should have been sustained; (5) a separate verdict on the plea in bar should have been required; (6) a private conference, which the trial judge held with a juror, was prejudicial to defendant. These carry with them all the minor questions presented.
1. The only questions raised under the demurrer, not considered under the motion to quash, are: That the statute does not require an allegation of criminal intent; that the information contains no such allegation; and that the information does not charge the complainants suffered a loss. Said section 6946, reads: "Every person who shall obtain, or attempt to obtain, from any person or persons, any money, property or other thing or things of value by means of the sale, or the offer to sell, stock, shares or rights in, in or to any corporation, by any swindling or cheating transaction, shall be liable to indictment, and upon conviction, shall be punished by imprisonment in the penitentiary for any term, not less than one year nor more than ten years." The following section, 6947, Id., provides how an information under the preceding shall be drawn and what it shall contain. The information before us strictly conforms thereto.
[2, 3] In statutory crimes intent is not a necessary element. If it were, here it is covered by the words "swindling or cheating." 8 R. C. L., p. 62, § 12; McCausland v. People, 58 Colo. 303, 305, 145 Pac. 685; Harding v. People, 10 Colo. 387, 394, 15 Pac. 727.
[4-6] 2. It is said that this act, which is chapter 197, p. 678, S. L. 1919, contravenes section 1, article VI of the state Constitution because section 3 thereof (§ 6948, C. L. 1921) provides that, "In all prosecutions under this act, the jury under the direction of the court, shall determine the law and the fact"; whereas said section of the Constitution provides that the "judicial power" of the state shall be vested in certain specified courts. Said section 3 follows the language of section 10, article II of the Constitution relating to prosecutions for libel. These being the only cases in which power to determine the law is vested, by the Constitution, in the jury, it seems clear, both under the unbroken practice since our Constitution was adopted and under the rule of interpretation expressio unius exclusio alterius, that in so far as said section 3 attempts to confer upon juries power to determine the law, it is unconstitutional. Moreover, under the common law the facts were for the jury and the law for the court. 16 C. J., p. 921, § 2272. From territorial days to the present it has been declared that criminal trials shall be conducted according to the course of the common law. R. S. 1868, p. 243, § 216; C. L. 1921, p. 1819, § 7099; S. L. 1925, p. 227, c. 84, § 1. But since said section 3 is in no respect essential to the remainder of the act, and there is no reason to imagine that the legislature would not have passed it with that section eliminated, the act stands without it. Greeley T. Co. v. People, 79 Colo. 307, 312, 245 Pac. 720. Moreover, since in the instant case the court did determine the law and the jury the facts, and since Dill neither objected to that action nor sought any other, no prejudice to him appears.
It is also contended that this statute is so ambiguous, unintelligible and uncertain as to render it void. We cannot find these defects.
3. The statute of limitations in question is section 7061, p. 1811, C. L. 1921. Dill's failure to file his plea in bar until the day of the trial, his failure to ask time after the answer thereto was filed, the overwhelming evidence in support of that answer, the submission, without objection, of the question thereby raised, to the jury and its verdict against him thereon, would seem to dispose of this contention, or at least bring it within the provision of section 7068, p. 1813, C. L. 1921, that no "writ of error shall be sustained for any matter not affecting the real merits of the offense charged."
That the charge fell within the statute appeared of record. In such cases the general rule is that no special plea is necessary. People v. Harding, 53 Mich. 481, 484, 19 N.W. 155. The rule applies to the defense of the statute of limitations. State v. Rook, 61 Kan. 382, 59 Pac. 653. In this state a defendant may plead the statute specially or meet the question by evidence under the general issue. If he plead the statute the prosecutor should reply with the exception. If he files no plea, but offers evidence, the prosecutor may meet that with evidence in rebuttal showing the exception. Packer v. People, 26 Colo. 306, 57 Pac. 1087.
It thus appearing that the issue was one which need not be raised by special plea it was within the court's discretion to permit the filing of the answer thereto after the jury was sworn, particularly where the plea was withheld until the beginning of the trial. Collins v. People, 69 Colo. 353, 195 Pac. 525.
4. It is contended that the only evidence which tends to support the charge of cheating or swindling is that of an unfulfilled promise by Associated Industries to make a loan to the Cemetery Association. There was such a promise and such failure. The people, however, expressly disclaim anything by reason thereof. They say that the evidence shows defendant directly responsible for false representations made to purchasers that the proceeds of sales of cemetery stock were being, and would be, devoted wholly, or practically so, to the erection of a mausoleum, whereas the commissions for such sales had been boosted from a contract rate of 16 per cent to an actual rate of 30 per cent; that while the expenses alone of such stock sales ran over $700,000, (which was more than 30 per cent of the receipts) only a little over $300,000 went to the Cemetery Association in the form of a loan, and the balance of said proceeds were absorbed by Associated Industries in its other activities. No other conclusion can be reached from this record. Associated Industries simply robbed its child. The motion for a directed verdict was properly overruled.
5. No separate verdict on the plea in bar was requested, no objection was made to the court's instructions submitting to the jury, under the general issue, the question presented by the plea and answer, and from what has heretofore been said it is apparent that the procedure followed was correct.
6. Being informed that juror E had talked with one Mc, a friend of Dill, the trial judge conferred with counsel in chambers and as a result thereof, and without objection, interviewed the juror alone. Dill's attorneys first raised the question by their motion for a new trial. They say they "were under the coercion of their personal desire to have the matter cleared up and did not resist the proposal of the court" to hold such conference. The motion was supported by affidavits and opposed by an unverified answer filed by the district attorney. A hearing was had on the motion at which E and three of his fellows were sworn and examined and at the conclusion of which the judge stated his recollection and found that the verdict was not influenced by the conference and that Dill had suffered no prejudice. The following conclusions seem inevitable from the record: The conference with the juror was suggested by Dill's counsel; the whole matter was unknown to Dill until after the verdict; the judge asked E if he had talked with Mc and the juror answered that he had not and that he did not even know the man; he was directed by the judge to return to the jury room and say nothing about the conference to the other jurors; this direction he followed; the conference was held after all the evidence was in and lasted less than five minutes; E was not advised of the source of any information the judge had nor that a complaint had been made; the judge promptly reported the substance of the conversation to Dill's counsel who made no objection and took no action; some of the jurors had, by mere accident, seen newspaper headlines, reading, "Charge of Jury Fixing is made at Dill Trial," and, "District Attorney charges Jury Tampering in Dill case," and there was some discussion of these by some of them. In view of the foregoing we concur in the court's conclusion of want of prejudice. The question here presented has been settled by this court. Holland v. People, 30 Colo. 94, 105, 69 Pac. 515.
However, we again call the attention of the trial judges to our warning to be found in our opinion in the Holland case, page 106, and in that in Moffitt v. People, 59 Colo. 406, 414, 149 Pac. 104.
Finding no reversible error in this record the judgment is affirmed.
MR. CHIEF JUSTICE ADAMS and MR. JUSTICE BOUCK not participating.
MR. JUSTICE BUTLER sitting for MR. CHIEF JUSTICE ADAMS.
MR. JUSTICE HILLIARD dissents.
On Motion to Stay Remittitur and Correct Mandate.
On the day on which a rehearing was denied herein counsel for defendant moved that the remittitur be stayed, pending further hearing, and that thereupon the cause be remanded "with directions to dismiss the action or for a new trial." That motion was based upon the following facts:
There are seven justices of this court. When this cause was decided two of them, Mr. Chief Justice Adams and Mr. Justice Bouck, for reasons satisfactory to them and of which they must, in the instant case, be the sole judges, did not participate. Of the five participating, one, Mr. Justice Hilliard, dissented. On the motion for rehearing Mr. Justice Holland joined in the dissent of Mr. Justice Hilliard. Hence the rehearing was denied en banc by a court of five justices, two of whom dissented. In other words the number of justices concurring in the affirmance of the judgment would not constitute a majority of the full bench if all the members of the court sat in the case.
"No punishment shall be inflicted in any case brought before the supreme court under the provisions of this chapter, unless a majority of the justices of said court concur in respect to such punishment." C. L. 1921, p. 1823, § 7116. On that statute counsel for defendant rest their present motion and request that all the justices participate in its consideration and determination. Mr. Chief Justice Adams and Mr. Justice Bouck, however, adhere to their conclusion that they ought not sit.
The existence of said statute is the first question which confronts us, for if, as we conclude, it has been repealed, its applicability here, were it still in force, is immaterial.
It will be noted that it was limited in its operation to cases "brought before the supreme court under the provisions of this chapter." To determine whether the instant case was so brought we must first ascertain what was meant by "this chapter."
We find the chapter, as originally passed, is unnumbered. It appears at page 91 of the Territorial Session Laws of 1865 in an act of five short sections in which this is section 2. The remainder of the act provides a method of bringing before the Supreme Court for review all prosecutions "by indictment" (information). But such cases are no longer brought before the Supreme Court under the provisions of that act.
In 1868 a new criminal code was passed. It is found at page 196 of the Revised Statutes of 1868, and was never published separately. As a part thereof, on pages 246 and 247, are to be found sections 226 and 227 of the act which provide a new way of prosecuting writs of error in criminal cases; dividing them into capital cases covered by section 226, and cases not capital covered by section 227; and although it will be observed by reference to section 246 of the same act, page 254 R. S. 1868, that there was no specific repeal of the said act of 1865, yet there must be a repeal by implication because the same subject is covered in a different way.
It therefore follows that since the passage of the criminal code of 1868 no cases have ever been brought before the Supreme Court under the act of 1865, in which this section appears and to which alone it refers. This is unquestionably the reason why the act of 1865 was not published in the General Laws of 1877.
It would further appear that the compiler of the Revised Statutes of 1868 overlooked the situation above mentioned and inserted therein the act of 1865, including the section in question. It is to be found as sections 66 and 67 on page 520 of the Revised Statutes of 1868 where it appears as the two last sections of chapter LXX relating to "practice," and beginning on page 498 of that volume. Upon examination it will be observed that the first 65 sections of that chapter relate solely to civil cases. In other words these two sections on criminal practice, already clearly repealed, were inserted by the compiler as the closing sections of a chapter on civil practice. The new act of 1868, governing writs of error in criminal cases, appears as sections 831 and 832, beginning on page 326, of the General Laws of 1877.
Notwithstanding the republication of the section here in question in all recent compilations the fact that for more than sixty years it seems never to have been invoked by the bar and has been consistently ignored by this court reenforces our present conclusion. Covington v. People, 36 Colo. 183, 85 Pac. 832; Walt v. People, 46 Colo. 136, 104 Pac. 89; DeRinzie v. People, 56 Colo. 249, 138 Pac. 1009; Webber v. People, 66 Colo. 213, 169 Pac. 649; Robinson v. People, 76 Colo. 416, 232 Pac. 672; Ball v. People, 86 Colo. 387, 281 Pac. 745; Andreen v. People, 91 Colo. 341, 14 P.2d 695.
For the reasons given the motion is overruled and the remittitur will issue.
MR. JUSTICE BUTLER, sitting for MR. CHIEF JUSTICE ADAMS, and MR. JUSTICE CAMPBELL concur.
MR. JUSTICE HILLIARD and MR. JUSTICE HOLLAND dissent.
MR. CHIEF JUSTICE ADAMS and MR. JUSTICE BOUCK not participating.