Updike v. People

J. T. UPDIKE was found guilty of obtaining money from Theodore Zadra by false pretenses. The defendant was sentenced to the penitentiary and prosecutes error to review the judgment.

The evidence in support of the information shows, among other things, that there were two corporations by the name of the Updike Sheep Company, one of which was organized under the laws of the state of Colorado and the other under the laws of Idaho. Zadra was a large stockholder in the Colorado corporation, but owned nothing in the Idaho company if he even knew of its existence. Defendant managed, and had an interest in both companies, but his greater interests by far were in the Idaho concern, of which he was president. Defendant was an experienced sheep man, but Zadra was not, and one of defendant's methods of deceiving Zadra was to lead the latter to believe that the Colorado corporation owned large quantities of sheep and hay; but in truth, if owned at all, such property was owned by the Idaho company. Defendant also gave Zadra to understand that the latter's investments, for which he sent money or checks to defendant, were being used in the business of the Colorado company. The fact was, however, that defendant knowingly and designedly obtained and diverted most, if not all, of such funds to his own use or to the Idaho corporation. A check in the sum of $5,000 given by Zadra to defendant was so employed, and defendant admitted on cross-examination that title to the sheep and hay purchased in the fall of the year 1928 was taken in the name of the Idaho company. At last accounts, the Colorado corporation did not own any sheep or hay whatsoever.

Updike lived in Boise, Idaho. The representations were made in letters written by him in Boise and directed to and received by Zadra at Glenwood Springs, Colorado, and by telephone communication by Updike in Boise to Zadra in Denver. Relying upon the representations, Zadra mailed his check to Updike, who received it at Boise and cashed it there. The check was drawn upon the First National Bank of Glenwood Springs, and was payable to the order of Updike. The check bears Updike's endorsement, and also the endorsements of the Updike Sheep Co., the First National Bank of Idaho, the Colorado National Bank and the Denver branch of the Federal Reserve Bank of Kansas City. Zadra's check was paid by the drawee bank at Glenwood Springs.

The statutory crime of which defendant was convicted is set forth in section 6930, C. L. 1921, which reads in part as follows: "If any person or persons shall knowingly and designedly, by any false pretense or pretenses, obtain from any other person or persons any chose in action, money, goods, wares, chattels, effects or other valuable thing whatever, with intent to cheat or defraud any such person or persons of the same, every person so offending shall be deemed a cheat, and upon conviction, shall, where the property obtained is over the value of twenty dollars, be imprisoned in the penitentiary not to exceed ten years. * * *"

[1, 2] 1. The information states at considerable length the fraud perpetrated on the prosecuting witness. Solely with reference to a question raised by defendant in attempting a distinction between money and a check for like amount, we quote from that part of the information which charges the defendant with fraudulently obtaining "$5,000.00 of the value of $5,000.00 of the personal property, goods, chattels and monies of the said Theodore Zadra," etc. It does not contain any specific reference to a check, and counsel for defendant claim that there is a defect in the information, meaning, we suppose, a variance between the allegation and proof, because, they say, "the transaction relied upon was based upon a bank check, not upon cash." The objection is not well taken. We have repeatedly declared that technicalities not affecting substantial rights will not be considered. It is of no consequence whether the property fraudulently obtained was money or a check, as long as it was a thing of value, and in this instance, of exactly the same value, indeed, when it represents precisely the same thing. As we said in Arnett v. People, 91 Colo. 56,11 P.2d 806, "It is further urged that the evidence is insufficient to support the verdict because defendants received checks and not money. They received checks and Cross' money thereby authorized to be paid. In these circumstances, it would seem ridiculous to hold that such variance between allegation and proof constitutes reversible error. Compton v. People, 84 Colo. 106,268 Pac. 577."

In Roll v. People, 78 Colo. 589, 243 Pac. 641, the contention was made that a check was not property, but we said at page 593 of the opinion: "Our own statute and decision settle the question in this jurisdiction. Much musty learning is thus made superfluous, and we need not delve into it. Fortunately so, for in this commercial age a solemn judicial decision that a check for $7,000, backed by a bank account to cover it, and actually cashed by the payee, is not property, would require neither argument nor precedent to make it ridiculous."

Briggs v. People, 76 Colo. 591, 233 Pac. 836, is another case somewhat in point. One of the charges against the defendant there was that he feloniously misapplied a check with intent to defraud a bank, but we said on page 595 of the opinion that whether it was check, cash or draft is wholly immaterial, and also this: "In other words he put the bank's money in his pocket and spent it." This terse dismissal of a specious argument might well be applied to the present case.

[3] 2. Counsel for defendant inform us that their main contention is that the district court of Garfield county is without jurisdiction. Their theory is that if a crime was committed at all, it was committed in the state of Idaho, for the reason that defendant was charged with the crime of fraudulently obtaining money, and the money on the check was obtained in the state of Idaho. This is said regardless of where the check was obtained, and to emphasize the fact that defendant received the money in Idaho, counsel for defendant insist that the court erred in rejecting an offer of proof that the check was deposited by defendant in the Idaho bank as a cash item, that it was received and accepted as such, and not for collection from the bank at Glenwood Springs on which the check was drawn. It was a bold concept to admit that money instead of a check was obtained by defendant, even for the obvious purpose of defeating the jurisdiction of the Colorado courts, but it does not avail. The rejection of such proof was not prejudicial to defendant; its admission would have served only to aid the cause of the state, in demonstrating the value of the check and that defendant converted it to his own use, if further proof had been needed. This and other elements of the crime were fully proven.

[4-6] 3. A crime is an injury to the state where it is committed, and the courts of that state have jurisdiction thereof; this is not disputed. In 16 C. J., at pages 190, 191, section 273, it is said: "The general rule is that the crime of obtaining money or property by false pretenses is completed where the money or property is obtained, and that, if the pretenses are made within one jurisdiction and the money or property is obtained in another, the person making the representations must be indicted within the latter jurisdiction. The same rule is applicable to the obtaining of money by means of the confidence game."

In line with the above, this court has declared that the crime of obtaining money by false pretenses is committed where the property is obtained by the defendant. Pepperv. People, 75 Colo. 348, 225 Pac. 846; 11 R. C. L. 854. It narrows the question to a determination of where the property or thing of value was obtained. We quote further with approval from 16 C. J. page 191, section 273: "Transmission by mail. Where, induced by false pretenses, one transmits by mail to defendant money, drafts, or other writings, such mailing is a delivery to the postmaster as the agent of the defendant, to be forwarded to him, and the offense is committed where the letter is mailed, and is indictable at such place." A similar statement will be found in 11 R. C. L. 854, although the text in R. C. L. quotes authority to the contrary.

[7] The time of the completion of the offense of obtaining money by fraud was determined in Stoltz v. People,59 Colo. 342, 148 Pac. 865. Section 6930, C. L. 1921, above quoted is a reprint of section 1849, R. S. 1908, and we said at page 347 of the opinion in the Stoltz case, "We think the offense under the statute, sec. 1849, R. S. 1908, is complete when (our italics) a thing of value has been obtained, knowingly and designedly from another, by false representations or pretenses, with an intent to cheat or defraud such person of such property, * * *."

4. It does not make a particle of difference whether the fraudulently obtained check was sold by defendant in Idaho, as his counsel assert, or deposited there for collection. The question is not where he sold it, but where he obtained it; and whether he sold it or deposited it for collection, or where or in whatever manner he may have disposed of his booty theretofore obtained, is beside the question. The subsequent history of the travels of the check are only incidental; after the crime was committed, it is immaterial who eventually got the check or its proceeds. Whitfield v. People, 79 Colo. 108, 113,244 Pac. 470.

As we have said, Zadra's check was mailed at Glenwood Springs, Garfield county, Colorado, to defendant. There it was delivered to the postmaster as agent of defendant; then and there defendant so obtained it; it completed the offense, and the venue was properly laid in Garfield county.

If we take defendant at his word that it was money as such, instead of a check, which he is charged with obtaining by fraud, it nevertheless means the money which Zadra had on deposit at Glenwood Springs, obtained there and used to replace that which defendant got on the check from the bank at Boise. He is neither charged nor convicted here with obtaining any money at all in Idaho.

[8, 9] 5. Another ingenious argument is advanced to fix the situs of the crime outside of the state of Colorado. It is suggested that it was committed in Idaho, because Zadra's check did not become a thing of value until it was endorsed, which endorsement was made in the first instance in the latter state. We are compelled to disagree with this viewpoint as to the effect of such endorsement; it is contrary to the principle announced in Miller v. People,72 Colo. 375, 211 Pac. 380. In that case we quoted from State v. Thatcher, 35 N. J. Law, 445, on the subject of a chose in action as follows: "`Was it a thing of any value? While it remained locked up in his [the maker's] secretary, it was of no value to the maker, but eo instanti it passed out of his hands by the fraud, it became impressed with the qualities of commercial paper, and possessed to him the value which it might cost to redeem it from a bona fide holder.'"

In Knepper v. People, 63 Colo. 396, 403, 167 Pac. 781, we said: "The statute does not specifically require that any of these enumerated classes of personal property shall have value in the hands of the person swindled. If the instant they are reduced to possession by the swindler they have value, that meets the requirements of the statute." The Knepper case is followed in Miller v. People,supra.

6. The value of Zadra's check was demonstrated, but not created, by its endorsement and payment; if it had possessed no inherent value beyond its mere endorsements, certainly the drawee bank at Glenwood Springs would have repudiated it and returned it marked "No funds," regardless of any endorsement. If the check was as destitute of value when originally issued as defendant would have us believe, it seems remarkable that defendant was so keen to get it away from the maker. The argument would seem to have as little merit as if it were contended that negotiable securities are not valuable until reduced to United States currency, or even that gold coin is not valuable until it is spent.

7. The fact that the several receiving banks through whose hands the check passed, stamped it, "Prior endorsements guaranteed," is argued by defendant's counsel in its bearing on the question of when and where title passed. The banks of course were all innocent, but as to defendant, no honestly obtained title to the check ever did pass from the prosecuting witness. Such as it was, however, it passed at Glenwood Springs when the check was mailed from there. The check was cleared without any dispute or delay, but even if the maker had stopped payment, the rights of such maker and the endorsers or banking institutions inter sese is wholly outside the issues. Numerous civil cases involving the law of bank checks are cited, but they are without present bearing. Our splendid negotiable instruments act is an outgrowth of the law merchant, and is based upon the experiences of traders and merchants from time immemorial. Such legislation was not designed as an instrument of fraud, and we believe the rule here adopted is consistent with reason and justice.

8. The question of a supposed conflict of jurisdiction as applied to different states in a case of this kind is one of first impression with us, and merits a further brief discussion. We are not dismayed at the conflict of authorities on the question of where a crime was committed; there is a manifest inconsistency in some of their reasoning and a departure from the rules of logic in differentiations of various kinds of crimes.

[10] The principle that the courts of the state where the crime is committed have jurisdiction is further explained in Minor on Conflict of Laws, page 498, section 203, where it is said: "This is based upon the idea that the crime is an offense against the sovereignty and good order of the state within whose jurisdiction it occurs, and that each state must attend to the vindication of its own sovereignty." When defendant feloniously by fraudulent pretenses extracted $5,000 of Zadra's money out of the bank at Glenwood Springs, we are persuaded that the crime was committed in Colorado fully as much as if defendant had robbed Zadra or the bank with far reaching tools while he stood in an adjoining state. One may perpetrate an offense against a state or county upon whose soil he never touched foot. Bishop's New Criminal Procedure (2d Ed.), vol. 1, page 28, section 53. We see no difference in principle from the case at bar if one should stand in one state and shoot at another in a neighboring state. "The assailant is presumed to follow up his bullet, and constructively makes the attempt to kill in the state where the bullet strikes." Minor on Conflict of Laws, page 501, section 204. Here, defendant's bullets of fraudulent misrepresentations were shot from Idaho, some of them, in fact, from Colorado, but they all struck the mortal blow to Zadra's bank account in Colorado, where the missiles took effect. We are unable to see any valid distinction on the subject of venue in the absence of statute, between such offenses against the person and against property, when both constitute crimes against the state. If counsel for defendant are correct in their argument, it logically follows that it is no crime in this state to abstract a billfold of traveler's checks from a bank in this jurisdiction by fraud or theft, as long as the miscreant takes the precaution to cash them in any other part of the world. It cannot be so.

9. Burton v. United States, 196 U.S. 283,25 Sup. Ct. 243, 49 L. Ed. 482 is cited. That case involved a crime against the United States, but Updike's crime was against this state, cognizable under its laws. In the Burton case, the decision that the senator could not be tried in Missouri for violating section 1782, U.S. Revised Statutes, did not preclude his being tried therefor in the District of Columbia, both of such territories being under the jurisdiction of the federal government. But if the defendant Updike cannot be tried in Colorado for violating section 6930, C. L. 1921, he cannot be tried anywhere for it. We may safely assume that our sister state of Idaho has a statute making it a crime to obtain money by false pretense, but it is idle to speculate whether a statute of that state would cover a case of this kind, or whether the courts there would hold that they have jurisdiction. The courts of that commonwealth may decide otherwise, as they have a perfect right to do, and the defendant would thereby wholly escape punishment for his fraudulent conduct. There is no rivalry between the states of Idaho and Colorado as to which shall enforce its own laws; each is supreme in its own jurisdiction, and no constitutional question is presented either in the motion for new trial or by assignment of error. All that we can say is that a crime was or was not committed in this state. It is not as if the venue had been improperly laid in one county, but the case could be tried in another. In effect, the plea to the jurisdiction here amounts to a complete plea in bar, as far as the courts of this state are concerned.

[11] 10. We do not yield to anyone in our respect for our highest tribunal, but that court itself does not exact of us a slavish adherence to its construction of a federal statute nor as to where a case shall be tried, when the question presented is under a state statute, not in contravention of the laws of the United States. Other state courts have not hesitated to exercise independence of thought, as we also have done. Indeed, our highest tribunal has encouraged it; it has been pleased to say that it reads a state statute in the light of the construction placed upon it by the state court. Bandini PetroleumCo. v. Superior Court, Los Angeles County, 284 U.S. 8,52 Sup. Ct. 103, 76 L. Ed. 136, 78 A.L.R. 826; Lindsleyv. Natural Carbonic Co., 220 U.S. 61, 73, 31 Sup. Ct. 337,55 L. Ed. 369, 375, Ann. Cas. 1912C, 160.

[12-14] 11. The above disposes of defendant's main contention. The record contains 3,451 folios and there are 89 assignments of error, covering the subjects of the information, evidence and instructions, all of which we have fully considered. The information stated the offense "with great particularity, and in terms so plain that the nature of the offense may be easily understood, not only by the defendant, but also by the jury. That is sufficient. C. L. § 7062; Sarno v. People, 74 Colo. 528,223 Pac. 41." Cliff v. People, 84 Colo. 254, 258,269 Pac. 907. The proof was ample to sustain the verdict; there was no error in the admission or rejection of evidence, nor in the giving or refusal of instructions. Some of the instructions refused contain inaccurate statements of the law; others that were refused are sufficiently covered by those that were given, and others relate to matters hereinabove discussed at length. We find no reversible error in the record.

Judgment affirmed.

MR. JUSTICE BUTLER, MR. JUSTICE CAMPBELL and MR. JUSTICE HILLIARD dissent.