DocketNumber: No. 14,814.
Citation Numbers: 121 P.2d 491, 108 Colo. 592
Judges: Young, Burke
Filed Date: 1/12/1942
Status: Precedential
Modified Date: 10/19/2024
delivered the opinion of the court.
Funcheon, Williams and plaintiff in error Shimmel were convicted and sentenced to terms in the penitentiary under an information charging in separate counts: Conspiracy to steal the records of the Civil Service Commission of the City and County of Denver; the larceny of records of the Civil Service Commission; conspiracy to unlawfully and feloniously withdraw records of the Civil Service Commission; feloniously withdrawing records of the Civil Service Commission; and, feloni
The informations in the case were based upon the following statute: “If any judge, justice of the peace, sheriff, coroner, clerk, recorder, or other public officer, or any person whatsoever, shall steal, embezzle, alter, corrupt, withdraw, falsify, or avoid, any record, process, charter, gift, grant, conveyance, bond or contract, or shall knowingly and wilfully take off, discharge or conceal any issue, forfeited recognizance or other forfeiture, or shall forge, deface or falsify any document or instrument recorded, or any registry, acknowledgement or certificate, or shall alter, deface, or falsify any minute,document, book or proceeding whatever, of or belonging to any public office within this state, the person so offending and being thereof duly convicted shall be punished by confinement in the penitentiary for a term not less than one year nor more than seven years.” ’35 C.S.A., c. 48, §151.
The salient facts of the situation out of which the prosecution arose, are substantially these: Shimmel, a bread salesman, had a customer, one Darrel Dever, to whom he regularly delivered bread. Shimmel had taken several civil service examinations for the position of police officer in the Denver department, and at a later time, before the information was filed against him, was appointed a member of the department. Dever was planning to take the next examination given, and was desirous of making the necessary preparations to pass it. One Funcheon had previously informed Shimmel that he intended to conduct a school designed to prepare applicants for the examination, and had solicited Shimmel to put him in touch with prospects who might be interested in taking his course.
To reverse the judgments against him, Shimmel prosecutes a writ of error. He assigns numerous errors, but only one, which is determinative of the case, requires our consideration. It is, as stated by counsel, in substance as follows: The trial court erred in not sustaining defendant’s motion to quash the information, because the examination questions involved are not records of, or belonging to, a public office within the intent and meaning of the statute, and not being such, no crime, under the statute, can be predicated on their stealing, withdrawal, or avoidance, or on a conspiracy to steal, withdraw, or avoid them.
The question here presented is one of first impression in this state. Citations of authorities dealing with different fact situations are of little assistance in solving the problem presented.
Webster defines the verb “record” as meaning: “To commit to writing, to printing, to inscription, or the like; to make an official note of; to write, transcribe, or enter in a book or on parchment, for the purpose of preserving authentic evidence of, or on a wax cylinder, rubber disk, etc., for reproduction, as by a phonograph; to register; enroll; as to record the proceedings of a court.” He defines the noun “record” as follows: “Act or fact of recording or being recorded; reduction to writing as evidence; also, the writing so made; a register; as, a record of the acts of the Hebrew Kings; a family record. Specif.: a. An official contemporaneous writing by which the acts of some public body, or public officer, are recorded; as, a record of city ordinances, b. An authentic official copy of a document entered in a book, or deposited in the keeping of some officer designated by law. Cf. Conveyance, c. An official contemporaneous memorandum stating the proceedings of a court of justice; a judicial record. The record is indisputable evi
It will be observed that there is carried through in these definitions the idea of “reduction to writing as evidence.” It will be further obsérved by a reading of the statute that there are no public offices specifically named therein. Clearly, the statute includes records in the office of any judge, justice of the peace, sheriff, coroner, clerk, recorder or any other public office of a similar kind or character. These offices mentioned specifically are all offices of the state or of some political subdivision thereof. The records and documents mentioned specifically are such as are peculiar to the named offices or concerning which some duty or relationship arises by reason of the functions which the officers specifically mentioned exercise by virtue of their offices. We are of the opinion that the words “record * * * of or belonging to any public office,” under the well-recognized ejusdem generis rule applicable to the construction of statutes where general words follow a specific enumeration of those of a certain class, mean records of a kind or nature similar to those enumerated. See, City and County of Denver v. Taylor, 88 Colo. 89, 292 Pac. 594, in which a large number of cases from this jurisdiction are cited and discussed.
All of the records specifically mentioned in the statute are of a kind and character such that they are or may be in and of themselves “authentic evidence” of rights and the extent thereof. Any of the inhibited actions with respect thereto has the effect of directly, definitely and certainly destroying or changing the evidentiary character of the records or of destroying the right or
It is conceded by defendant’s counsel that if the examination had been given, the papers graded and an eligibility, or registry list compiled therefrom, that such list would have constituted a record of a public office, so we assume, without determining, that for the purposes of this case, the matter not being controverted, that the office of the Civil Service Commission is such an office as falls within the meaning of the words “or any public office.” So assuming, we are clearly of the opinion that after an examination is given, the examination papers with the answers of the applicants constitute records of the Civil Service Commission, because individually they are the authentic evidence of the applicant’s proficiency in the subjects covered, and collectively the evidence of his relative standing on the eligibility list which is compiled therefrom. Any of the acts inhibited by the statute, if performed with respect to the completed examination papers or the eligibility list compiled therefrom, would directly destroy the evidentiary character of such papers and list, and, assuming as we do that the office of the Civil Service Commission of the City and County of Denver is within the statute, would constitute a violation under its provisions. The direct effect of such acts, without any intervening cause, would corrupt the list and cause it to reflect falsely the actual situation resulting from the examination and thus thwart the purpose of the civil service provisions of the Denver charter, just as certainly and definitely as though records of the offices specifically mentioned were corrupted in any of the respects mentioned in the statute.
In the case here presented, corruption of the records of the office, and the thwarting of the purpose of the civil service provisions of the charter, are not a proximate result of the acts of the defendants which were charged and proved. To work such corruption it is
What we have said thus far relates to the counts of the information charging the withdrawing and avoiding of a record, the word “record” being limited by the information specifically to the examination questions.
With respect to the counts in the information charging conspiracy to steal, withdraw, and avoid records, the word “record” also being limited to the examination questions, it is pertinent to observe that our statute defining conspiracy makes such acts criminal only when the conspiracy is to commit either a common-law crime or an act made criminal by statute. If the examination questions were not records of, or belonging to, a public office, no crime is committed under this particular statute if they are stolen, withdrawn, or avoided, and a conspiracy to steal, withdraw, or to avoid them would not constitute a crime. It is worthy of note also that there is no requirement in any state law that civil service examinations shall be given by the Civil Service Commission of the City and County of Denver, or if given, how they shall be given, or that they shall be open to all, or competitive in character. The requirement that they shall be given is found in article XV of
We hold, therefore, that in the sense in which the word “record” is used in the statute under which the information is drawn, the unused examination questions are not records of, or belonging to, a public office, and that the acts charged to be criminal upon the assumption that the examination questions are such records do not, in law, constitute crimes under the statute.
Judgments reversed.
Mr. Justice Otto Bock and Mr. Justice Burke dissent.