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of sale, including a warranty, and the buyer relied solely upon the bill of sale, the seller was not guilty of false pretenses.

[Ed. Note.-For other cases, see False Pretenses, Cent. Dig. § 14; Dec. Dig. § 9.*] Error to District Court, Teller County; John W. Sheafor, Judge.

S. C. Stumpff was convicted of obtaining money under false pretenses, and brings er

ror. Reversed.

T. B. McDonald and T. E. McIntyre, for plaintiff in error. John T. Barnett, Atty. Gen., and Elmer L. Brock, for the People.

CAMPBELL, C. J. Defendant was convicted of obtaining money by false pretenses, and was sentenced to the penitentiary. Several false representations and pretenses are set forth in the information. The only one relied on, and concerning which alone there was evidence, is that in selling to the prosecuting witness, Johnson, a cow defendant obtained from the purchaser $30 in money by falsely representing that the animal was free from all incumbrances whatsoever; whereas there was a valid existing chattel mortgage upon it. A motion to quash was filed, based upon the contention that the information was too indefinite and uncertain to apprise defendant of the nature of the charge against him. It was overruled, and defendant says this was error. As the evidence does not prove the charge made, we shall not consider the ruling on the motion.

by defendant at the time of the sale, but seeks to bring the case as made within the false pretense statute, upon the theory that the silence of defendant with reference to the chattel mortgage is of itself a false pretense and. misrepresentation. The general rule is

that the mere nondisclosure of facts known to

defendant, even though a disclosure thereof would operate to deter the prosecuting witness from parting with his money, is not a false pretense. 19 Cyc. p. 403. And this is true, even though a false pretense may be proved by the acts or conduct of the defendant, as well as by his words. In People v. Baker, 96 N. Y. 340, Earl, J., in delivering the opinion of the court, expressly held that mere silence and mere suppression of the truth, upon which another may act, is not sufficient to constitute the crime of false pretenses.

[3] But, if it can be held that the failure of defendant to disclose to the prosecuting witness that there was an existing mortgage upon the cow at the time of the sale is sufficient to constitute the crime of false pretenses under our statute, it is enough here to say that the information should have so charged. It does not do so; but, on the contrary, expressly alleges that defendant made a false representation and false pretense that the cow was free and clear from all liens and incumbrances of every kind whatsoever. The mere silence of defendant at the time of the sale, or concealment of the existence of a

mortgage, is not proof of this charge of a positive, false verbal representation.

There is not a word of evidence that any representation or pretense was made by de[4] Moreover, the prosecuting witness tesfendant to the prosecuting witness, or to any tifies that he did not rely upon any repreone else, about a mortgage. He was neither sentation of defendant with reference to a asked by the purchaser, nor did he state, any-mortgage, and that none was made; but that thing about any incumbrance, as the prosecuting witness himself testifies. There was no reference or statement in the bill of sale, which at the time defendant gave to the purchaser, about a mortgage, and the prosecuting witness says that the instrument contains every representation made by defendant on that subject. The most that can be said of it is that therein defendant vendor may have warranted the title to be good and agreed to defend it.

[1] Under the law of this state, a mortgagor of chattel property holds the title, subject only to the lien of the mortgage, which, before default and in the absence of false representations, he may sell and convey, without violating this statute with reference to false pretenses. We have another statute which makes it a crime for the mortgagor to sell mortgaged property without the written consent of the mortgagee; but defendant is not being prosecuted thereunder, and it has no bearing upon any question involved in this case. Lafayette County Bank v. Metcalf, 29 Mo. App. 384.

[2] The Attorney General does not claim that any false verbal statement was made

he did rely upon the bill of sale, apparently meaning that he relied upon the supposed warranty which it embodied. While a promise added to a false pretense will not, of itself, acquit a defendant, yet, when the prosecutor does not rely upon the misrepresentation, but on the warranty, this particular statute is not violated. Jackson v. People, 18 Ill. App. 508. Manifestly the charge in the information was not proved by the evidence. The judgment is therefore reversed.

WHITE and BAILEY, JJ., concur.

(51 Colo. 175)

PEOPLE v. FITZGERALD.

(Supreme Court of Colorado. June 5, 1911.)
INDICTMENT AND INFORMATION (§ 125*)-Du-
PLICITY — DIFFERENT OFFENSES - CONJUNC
TIVE ALLEGATIONS.
Rev. St. 1908, § 1685, provides that any
person who shall steal, take, embezzle, carry,
or ride away any bicycle; and person who
shall purchase or receive from any person, or
conceal or secrete, any bicycle, knowing the
same to be stolen, taken, embezzled, carried,
or ridden away, shall be guilty of larceny.
Held, that an information charging that de-

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

fendant did feloniously steal, etc., and did feloniously purchase and receive, and did feloniously conceal and secrete, a certain bicycle, then and there knowing the same to have been stolen, taken, embezzled, carried, and ridden away, charged accused with doing all such acts conjunctively, at the same time, and as a part of the same transaction, and was therefore not duplicitous.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*]

Error to District Court, City and County of Denver; George W. Allen, Judge.

Simon Fitzgerald was informed against for stealing, purchasing, and receiving a bicycle, knowing the same to have been stolen, taken, embezzled, carried, and ridden away, and, from an order sustaining a motion to quash the indictment, the People bring error. Re

versed.

Under section 1997, Revised Statutes 1908,

*

"writs of error
lie on behalf of
the state *
to review decisions of
the trial court in any criminal case upon
questions of law arising upon the trial, mo-
tions to quash," and in other specified cases.
No decision of the Supreme Court, however,
can operate to put a defendant in jeopardy a
second time for the same offense. It is un-
der this statute the district attorney pros-
ecutes this writ in behalf of the people, that
the rule of pleading involved may be settled.
The question for consideration is the ruling of
the trial court sustaining a motion to quash
the information. That pleading was drawn
under, and based upon section 1685, Revised
Statutes 1908, which, so far as pertinent
here, reads: "Any person who shall steal,
take, embezzle, carry or ride away, any bi-
cycle, or any person who shall purchase or
receive from any person or conceal or se
crete, knowing the same to be stolen, taken,
embezzled, carried or ridden away, any bi-
cycle, shall be deemed guilty of larceny."
The information, following closely the lan-
guage of the statute, in the charging part
states that "Simon Fitzgerald
feloniously steal, take, embezzle, carry, and
ride away, and did feloniously then and
there purchase and receive from some person
to the district attorney aforesaid unknown,
and did feloniously conceal and secrete, the
said bicycle, then and there knowing the
same to be stolen, taken, embezzled, carried,
and ridden away."

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*

* did

George W. Stidger, John H. Childs, and H. G. Benson, for the People.

CAMPBELL, C. J. (after stating the facts as above). The motion to quash was based upon the proposition that the information is "ambiguous, uncertain, and duplicitous," in that it fails to inform the defendant for what particular crime he is being prosecuted, and that three distinct and inconsistent crimes against defendant are charged in one

and the same count of the information. The
court was clearly wrong in sustaining the
motion to quash. The statute is in the dis-
junctive. The stealing of a bicycle by à
defendant, or the purchase or receiving from
any person, or the concealing or secreting, of
a bicycle, knowing that the same has been
stolen, all are, and each is, under the stat-
ute, deemed larceny. An information con-
junctively charging the same defendant with
doing all of these acts at the same time, and
as a part of the same transaction, is not
duplicitous. Such is the rule already estab-
lished in this jurisdiction, and it should
have been heeded and applied by the district
We shall not repeat the
court in this cause.
argument to support it. We refer to, and
again approve, McClure v. People, 27 Colo.
358, 61 Pac. 612. After reviewing and dis-
cussing a number of cases bearing upon the

point now under consideration, this court,

at page 367, thus summarized its conclusion: "Where two or more acts, stated in the statute disjunctively, either of which is an offense by itself, if done by different persons or at different times, when done by the same person and at the same time, and relate to the same transaction, and are followed by the same penalty, they may be united in one count of an indictment or information, as constituting but one offense."

That is exactly this case. Though the fact does not appear upon the face of the information, under the doctrine announced in Short et al. v. People, 27 Colo. 175, 60 Pac. 350, the mere statement of the district attor ney that the different acts relate to and constitute one and the same transaction is sufficient as against a motion to quash. This information, in form, is like the one before the court in McClure v. People, supra. der the bicycle statute, precisely the same penalty is imposed, whether the defendant stole the bicycle, or purchased it with the knowledge that it had been stolen, or concealed or secreted it with such knowledge. The ruling of the court is wrong. courts must be governed by the rule of pleading again approved in this opinion.

Un

Trial

It follows that judgment on motion to quash the information was wrong, and it is therefore disapproved and reversed.

MUSSER and GARRIGUES, JJ., concur.

(51 Colo. 166)

EASTES v. WALLEY et al. (Supreme Court of Colorado. June 5, 1911.) DESCENT AND DISTRIBUTION (§ 119*)-DEBTS

HEIRS' LIABILITY-CONVERSION OF ASSETS. Where a widow, after being appointed administratrix of her deceased husband's estate, this left the state without paying claims for collected assets amounting to $75,000, and with which the estate was liable, amounting to $1,500, and without settling her administration

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep`r Ind÷xes

or being discharged, she took the property as aggregate sum of the several causes of action an heir, subject to the payment of deceased's sued upon. From this judgment, she has debts, and was personally responsible therefor. appealed. [Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 433-439; Dec. Dig. § 119.*]

A. M. Stevenson, for appellant. Clinton Reed and H. Wendell Stephens, for appellees.

Appeal from District Court, City and County of Denver; Geo. W. Allen, Judge. GABBERT, J. (after stating the facts as Action by J. J. Walley and another, part-above). Counsel for appellant contends that ners, under the name of Walley & Rollins, the complaint does not state a cause of acagainst Marie Fleming Everest Brown Eas- tion for the following reasons: The claims tes. From a judgment overruling defend- sued upon should have been established ant's demurrer to the complaint, she ap- against the estate, and until this was done peals. Affirmed. the action could not be maintained; that the Appellees, plaintiffs below, brought suit only forum in which such proceedings could against appellant upon 11 different causes be had in the way of establishing the indebtof action. The first was for the value of edness against the estate was the county a casket and other goods, labor and care in court, in which the administration proceedand about the funeral and burial of one ings were pending; that it does not appear Henry George Brown, deceased, which were defendant's resignation was accepted, or that sold and performed at the instance of those she has been discharged; that she cannot be authorized to bind his estate for such ex- held upon her promise pleaded, because it penses. The remaining causes of action was within the statute of frauds; and that were upon accounts growing out of transac- the promise pleaded was made in her repretions of Brown during his lifetime, with sentative capacity, and hence she cannot be sundry parties, which accounts had been duly | held individually responsible for such promassigned to the plaintiffs. The liability of the defendant for these several accounts was based upon averments in the complaint to the effect that the defendant was the widow of deceased; that she had been appointed administratrix of his estate; that he died intestate; that the defendant duly qualified as administratrix, and filed an inventory of the property of the estate; that thereafter there was transferred to her, by certain parties in whom the title to the real and personal property belonging to the deceased was vested, all the property of the estate, consisting of real estate, cash, and other items of personal property, of the value of $75,000; and that the entire amount of the indebtedness against the estate contracted by Brown did not exceed the sum of $1,500.

It is further alleged that within the proper time all the claims sued upon were duly filed in the county court in which the administration proceedings were pending; that the defendant promised to pay them, but that after she obtained title to the real estate and possession of the nersonal property above mentioned she resigned as administratrix, and took and carried away from the state of Colorado all of the personal property of the estate, and wrongfully converted the same to her use; that the claims so filed have not been passed upon nor paid; and that the property so taken by her is beyond the jurisdiction of the court, except the real property, which has been attached and levied upon in this case.

To this complaint the defendant filed a general demurrer, which was overruled. Defendant thereupon elected to stand upon her demurrer, and judgment was rendered against her in favor of the plaintiffs for the

ise; that the real property could not be attached without permission of the county court in which the administration proceedings were pending; that plaintiffs are not judgment creditors, and therefore cannot maintain an action to subject the property of the estate to the payment of their claims.

None of these questions need be considered. Eliminating all averments of the complaint bearing on them, it appears the action is against the defendant in her individual capacity, the basis of which is that she has secured possession and control of all the property of the estate of her deceased husband, without discharging the indebtedness against it. So the only question necessary to determine is, Does the complaint, upon this theory, state facts from which it appears that she is personally responsible for the several items of indebtedness sued upon? According to the averments of the complaint, this indebtedness consists of valid and existing claims against the estate, to discharge which the property of the estate should have been applied. The defendant was appointed administratrix of the estate. Thereafter all the property of the estate, real and personal, which appears to have been held in trust by others was transferred to her; that soon thereafter she resigned, and took and carried away from the state all of the personal property of the estate; that the administration proceedings have not been closed, nor have the claims sued upon been paid or passed upon, though duly filed in the county court, where the administration proceedings were pending; that the value of the estate far exceeded the amount of the indebtedness against it; that deceased left no will; and that defendant is an heir of his estate.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

We think these facts render her personally responsible for the indebtedness set out in the several causes of action. She took the property of the estate as an heir of deceased, subject to the payment of the indebtedness against the estate. An heir into whose possession all the property of an estate has come, in the circumstances narrated in the complaint, can only be excused from the payment of its debts by showing that such property is insufficient for that purpose. Dowling v. Dowling, 2 Colo. App. 28, 30 Pac. 50; Green v. Taney, 16 Colo. 398, 27 Pac. 249. This showing she not only failed to make, but, from the averments of the complaint, which, for the purpose of the demurrer, she conceded to be true, she received all the property of the estate, of the value of $75,000, and that the indebtedness against the estate contracted by her husband did not exceed $1,500.

It is also contended by counsel for appellant that no good reason is shown by any averments in the complaint why plaintiffs should not have pursued the remedies provided by the statutes relating to estates, or brought suit upon the bond of the defendant. In the circumstances of this case, the choice of remedies rested with plaintiffs. The judgment of the district court is affirmed.

Judgment affirmed.

decision of the trial court sustaining de-
fendant's motion in arrest of judgment. The
trial court thereafter set aside the verdict
and granted a new trial. Authority for a
review of the motion in arrest is found in
section 1997, Revised Statutes 1908. The
record does not show that defendant was
ever arraigned by the district court, or that
he ever pleaded or was required to plead to
the information. In Ray v. People, 6 Colo.
231, decided in 1882, this court held, in a
writ of error to a judgment on a verdict of
guilty, that, where defendant was not ar-
raigned and did not plead, a reversal must
be had. In Wright v. People, 22 Colo. 143,
43 Pac. 1021, decided in 1896, the Ray Case
was followed and the doctrine again an-
nounced. The district attorney says that in
neither case was section 1956, Rev. Stats.
1908, called to the attention of, or considered
by, the court, though the statute was then in
force, and that section 1986, which was not
passed until the year 1907, was, of course,
not then considered. His contention is that
each of them has the effect to cure the ab-
sence of such arraignment and plea and to
require at the hands of this court that a
While
different rule be now established.
there is no statement in the opinion in the
Ray Case that section 1956 was cited, the
court evidently was aware of it, since the
statute was taken from the state of Illinois
and was in force when the Illinois decisions,

CAMPBELL, C. J., and HILL, J., concur. which were followed in the Ray Case, were

(51 Colo. 182)

PEOPLE v. HEATH.
(Supreme Court of Colorado. June 5, 1911.)
CRIMINAL LAW (§ 1186*)-PROCEEDINGS ER-
RORS-WANT OF ARRAIGNMENT IN PLEAD-

ING.

announced. Besides, we do not think there is anything in this section which affects the question before us. It provides, among other things, that "no motion in arrest of judgment or writ of error shall be sustained for any matter not affecting the real merits of the offense charged in such indictment." The merits of the offense as charged in the indictment, and not proceedings during the

The

part of section 1986 which is supposed to be pertinent reads: "And no indictment or information shall be deemed insufficient, nor shall the trial, judgment or other proceed

Rev. St. 1908, § 1956, provides that no motion in arrest or writ of error shall be sustained for any matter not affecting the real merits of the offense charged, and section 1986 de-progress of the trial, are referred to. clares that no judgment shall be reversed for any defect which does not prejudice the substantial rights of defendant on the merits. Held, that neither of such sections apply to errors committed by the court in its rulings during the trial or cure an omission to arraign ac-ings thereon be reversed or affected by any cused or to require him to plead. defect which does not tend to prejudice [Ed. Note.-For other cases, see Criminal the substantial rights of the defendant on Law, Cent. Dig. § 3219; Dec. Dig. § 1186.*] Error to District Court, City and County of Denver; Harry C. Riddle, Judge.

Clint O. Heath was convicted of an offense, and, from an order sustaining his motion in arrest of judgment because he was never arraigned and had not been required to plead to the information, the People bring error. Affirmed.

the merits." The defect for which a reversal should not be had seems to refer to a defect in the indictment or information and not to errors committed by the court in its rulings during the trial.

In the Wright Case Chief Justice Hayt said in the opinion that, after the decision in the Ray Case, our General Assembly refused to pass a law to change the statute so as to do away with the necessity for the record to show affirmatively a formal arraignment and plea. If our General Assembly in 1907 had intended, by section 1986, to change the CAMPBELL, C. J. The district attorney rule of these two cases, it would have unprosecutes this writ of error to review a questionably expressed its intent in such a *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

George Stidger, Dist. Atty., John Horne Chiles, Asst. Dist. Atty., and Harry S. Silverstein, Deputy Dist. Atty., for the People.

way as to leave the matter in no doubt. | charge, and they are eliminated from conThese sections relied upon by the district sideration. The allegations of the first are, attorney do not have the legal effect claimed. substantially, that respondent, while attorThe doctrine of the two cases has so long ney for one William Westlake in the prosecubeen in force in this state that before a dif- tion of a divorce suit against the latter's ferent one is announced by the courts a stat- wife, received of his client certain sums of ute should confer the authority. A new trial money with the understanding that a cerhaving been granted to the defendant herein, tain amount thereof should be held by him notwithstanding the ruling of the trial court until the divorce was granted, and thereupon the question we are now considering, upon turned over to Mrs. Westlake as alihe may yet be arraigned and required' to mony, and the balance to be likewise held plead, and can be put upon trial. and disposed of for court costs; that respondent failed and refused to pay the court costs, and likewise failed and refused to pay a considerable portion of the alimony due Mrs. Westlake. Respondent admits the employment, and the receipt of the money for the purposes alleged; claims that he entered

The ruling here reviewed was right.

WHITE and BAILEY, JJ., concur.

(51 Colo. 60)

PEOPLE ex rel. COLORADO BAR ASS'N v. into an agreement with Mrs. Westlake to re

HUMBERT.

(Supreme Court of Colorado.

June 5, 1911.) 1. ATTORNEY AND CLIENT (§ 44*)-MISCONDUCT OF ATTORNEY-DISBARMENT.

An attorney of a husband suing for divorce received money from him, a part to be turned over to the wife as alimony and the balance to be disposed of for costs. The attorney deposited the money in a bank in his own name, and it was attached, and he was unable to secure it. After the divorce suit, the wife called on him for the money, and he explained the facts to her and promised to pay her within a few months, but he paid only a part of the amount. Held that, though he should have deposited the money in trust, and though when charged with unprofessional conduct he should have set forth in his answer the facts, he was not guilty of misconduct justifying disbarment.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 55, 56; Dec. Dig. § 44.*]

2. ATTORNEY AND CLIENT (§ 45*) - MISCONDUCT OF ATTORNEY-DISBARMENT.

A debtor indebted to an attorney, who de

manded payment to meet his own obligations, executed a note and gave the attorney jewelry, with the understanding that he could use it to raise money to meet his own obligations. The debtor promised to have the money forthcoming in a very short time with which to redeem the jewelry, but failed to do so, and the attorney pledged the jewelry, and the pledgee foreclosed. Subsequently the debtor paid his note to the attorney, who attempted to secure the jewelry, but failed for want of funds. Held, that the attorney was not guilty of professional misconduct justifying his disbarment.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 63; Dec. Dig. § 45.*]

En Banc. Action by the People, on the relation of the Colorado Bar Association, to disbar George J. Humbert, an attorney, for unprofessional conduct. Proceedings dismissed. John H. Gabriel, for petitioner. Thomas Ward, Jr., for respondent.

tain the money and pay it over to her as she should desire; that he performed the contract and paid over the full amount, except $15, which he was ready and willing to pay whenever requested so to do by Mrs. Westlake.

The undisputed evidence shows that Mrs. Westlake and her agent, subsequent to the trial of the divorce suit, called upon respondent and demanded of him the money; that the latter then stated that he had deposited the money in a bank, and it had been levied upon or attached, and he was therefore unable to get it and could not then pay, but promised to do so within a few months, which seemed to be satisfactory to Mrs. Westlake. Thereafter, from time to time, respondent paid a portion of the amount, and, at the request of Mrs. Westlake, executed and delivered to her his note for $100 thereof, which she negotiated to a furniture company. Payments were made on this note, so, at the time of the institution of this suit, there was about $60 of the indebtedness still remaining unpaid. Mrs. Westlake testified that respondent had been paying her "according to the agreement made with him," and she believed he would pay the balance in accordance therewith.

[1] An examination of the entire evidence pertaining to this matter fails to disclose any fraudulent or dishonorable intent on the part of the respondent. There was no deception, no untruthful statement concerning the matter. He frankly admitted that he had received the money. He asserted that he had deposited it in a bank where it had been attached and he was unable to secure it. If respondent deposited the money in a bank, and the money was tied up or lost by attachment proceedings, and he was unable to have the money forthcoming, we do not think such misfortune constitutes a cause for disbarment. We think respondent should

WHITE, J. The purpose of this suit is to have the name of respondent stricken from the roll of attorneys entitled to practice at the bar of this court. The information not have deposited the money other than as contains four separate charges of unprofessional conduct. No evidence was submitted in support of the second and third

a trust fund. Moreover, he should have set forth in his answer that he had deposited the money and the facts concerning its loss,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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