was the firm's possession. There would be | State v. Palmer, supra. Those two cases are much force to that contention if the checks therefore clearly distinguishable from the in question had been made payable to Boyd, case at bar and from the other cases cited De Vine & Eccles, or to their order, instead by the state. All the other cases cited inof the creditors of Rosenthal, or if the debt volve the embezzlement of public funds and or claim had in law and fact belonged to are based upon statutes which denounce that that firm. Under the undisputed facts, how-offense. It is quite true that in several of ever, the firm of Boyd, De Vine & Eccles was not the owner of the money as alleged in the information, and hence the court erred in refusing to charge as requested.

In view that we have reached the conclusion that, as matter of law, the firm of Boyd, De Vine & Eccles was not the owner of the money in question, it becomes wholly immaterial what the real relation was between said firm and the defendant in so far as the collections were concerned. We therefore express no opinion upon the first proposition urged by the defendant.

those cases it is directly held that if A. obtains a check or other evidence of debt, such as a warrant, a certificate of indebtedness, or bill of exchange, from B. which is payable to the order of C. and is the latter's property, and B. nevertheless, indorses the same and receives payment from the bank or has the proceeds transferred to his credit and appropriates them to his own use, B. may be found guilty of having embezzled money. What is said in those cases is, however, said in connection with the facts there shown and with regard to the statute upon which the charges were based.

[3] The defendant, however, insists upon another assignment which, in view that we If, in the case at bar, the checks in quesare required to reverse the judgment and re- tion had been made payable to the firm of mand the case, is material. Defendant's Boyd, De Vine & Eccles, and the money repcounsel contends that, under the undisputed resented by them was that firm's money, facts, the defendant was not guilty of em- there would be more force to the state's arbezzlement of money, as charged in the infor- gument. It is, however, quite apparent that mation, but that if he was guilty of any of the charge in this case was for the embezzlefense it was for the embezzlement of the ment of money and was made because the checks introduced in evidence. Whether, un- state could not have proved that the checks der the undisputed facts in this case, the were the property of the firm of Boyd, De transaction disclosed by the evidence consti- Vine & Eccles. The mere production of the tuted the embezzlement of money or the em- checks would clearly have shown that they bezzlement of negotiable instruments or mere did not belong to that firm. The state thereevidences of debt the authorities, are some- fore charged that the defendant had emwhat in conflict. The defendant has cited bezzled the money, instead of the checks. Carr v. State, 104 Ala. 43, 16 South. 155; But even that charge, for the reasons stated, State v. Mispagel, 207 Mo. 557, 106 S. W. was not proved. It is true that the prosecut513, State v. Castleton, 255 Mo. 201, 164 S. ing officers may sometimes be in doubt W. 492, and People v. Meseros, 16 Cal. App. whether, under a certain state of facts, a 277, 116 Pac. 679, in all of which it was particular transaction constitutes the emsquarely held that transactions like those in bezzlement of money or checks or other evithis case do not support a charge of the em- dences of indebtedness, or what facts ultibezzlement of money, but constitute the em- mately may be disclosed by the evidence. In bezzlement of checks or evidence of debt all such cases, however, the state can sufmerely. In all of the foregoing cases, judg- fer no injustice, since it may always charge ments of conviction were reversed for the the transaction in different counts and canreason that the proof did not support the not be required to elect upon which count it charge made in the language of the infor- will ask a conviction until the evidence is bemation in this case, namely, the embezzle- fore the court and jury, from which the nament of money. Upon the other hand, the ture or character of the transaction may be state cites Bartley v. State, 53 Neb. 310, 73 determined. There may also be circumstances N. W. 744; Territory v. Hale, 13 N. M. 181, under which the ultimate facts are in doubt 81 Pac. 583, 13 Ann. Cas. 551; State v. so that the whole question regarding the Palmer, 40 Kan. 474, 20 Pac. 270; State v. character of the transaction, under proper Krug, 12 Wash. 288, 41 Pac. 126; People v. instructions, may be submitted to the jury, McKinney, 10 Mich. 54; and People v. Leav- and they may find the facts, and, upon the ens, 12 Cal. App. 178, 106 Pac. 1103. The facts when found, base their verdict in aclast case, like People v. Meseros, supra, cordance with the instructions from the which is cited by the defendant, emanates court. Cases falling within the latter class, from the same court, namely, the California in the very nature of things, must be rare Court of Appeals. There is, however, no indeed. The state therefore may easily preconflict between the two cases, since in the vent a variance by stating the transaction in last case, the one cited by the state, the ques- different counts and electing upon which tion of obtaining money by false pretenses count it will stand in accordance with the was involved. The same is true with respect evidence produced. If that course had been

been the property of the firm of Boyd, De Vine & Eccles, the state could have elected to stand upon the charge of embezzling checks instead of money.

The state has also cited section 54 of Morse on Banks & Banking. The only thing that is stated in that section is that the presentation of a check to the bank upon which it is drawn and the transfer of the proceeds to the credit of the person presenting the check constitues payment of the check. Surely no one will dispute that proposition. Neither will any one seriously contend that that proposition has any bearing upon the transaction involved in this case.

[4] The cases cited by the defendant, and to which we have referred, in which it is held that transactions like those in question constitute the embezzlement of checks, are all well considered, and it is deliberately held that under statutes like section 4380, supra,. a conviction of the embezzlement of money cannot be sustained. For the reasons stated,

we feel constrained to follow those cases.

The judgment is reversed, and the case is remanded to the district court of Weber county, with directions to grant a new triál.

STRAUP, C. J., and MCCARTY, J., concur.

(61 Colo. 566)

PEOPLE v. LAWTON et al. (No. 8584.)
(Supreme Court of Colorado. July 3, 1916.)
CRIMINAL LAW 261(1)-TRIAL-NECESSITY
OF ARRAIGNMENT AND PLEA.

Where a defendant is tried, convicted, and sentenced for a criminal offense without arraignment and plea, the verdict on motion must be set aside and a new trial granted.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 612; Dec. Dig. 261(1).] Garrigues and Scott, JJ., dissenting.

En Banc. Error to District Court, Arapahoe County; H. S. Class, Judge.

Prosecution for criminal conspiracy against Charles Lawton and F. A. Dotson. From an order setting aside a verdict of guilty, the People of the State of Colorado bring error. Affirmed.

Α

The defendants in error were indicted for criminal conspiracy. The case was tried, and the jury returned a verdict of guilty, upon which judgment was pronounced. motion to set aside the verdict was made and sustained upon the ground, it does not appear from the record, that defendants were arraigned or required to plead, nor did they ever enter any plea. The district attorney brings the ruling here for review on error.

Samuel W. Johnson, Dist. Atty., Charles E. Friend, and Luke J. Kavanaugh, all of Denver, for the People.

GABBERT, C. J. In Ray v. People, 6 Colo. 231, decided in 1882, Wright v. People, 22 Colo. 143, 43 Pac. 1021, decided in 1896,

and again in People v. Heath, 51 Colo. 183, 117 Pac. 139, decided in 1911, it was ruled that where a party is tried, convicted, and sentenced for a criminal offense without arraignment and plea, the verdict on motion must be set aside and a new trial granted. On the authority of these cases, the ruling of the district court must be approved; and it is so ordered. As stated, in substance, in People v. Heath, supra, the doctrine of the cases cited has been in force so long in this state that before a different one is announced by the courts a statute should confer the authority.

Ruling approved.

GARRIGUES, J. (dissenting). On three former occasions where the accused was tried and convicted without being arraigned, we held that the verdict was without effect, and the judgment pronounced thereon void. Ray v. People, 6 Colo. 231; Wright v. People, 22 Colo. 143, 43 Pac. 1021; People v. Heath,

51 Colo. 182, 117 Pac. 139. I would ordinarily vote to reaffirm the doctrine announced in those cases without further inquiry. But the numerous authorities called to our attention appealed to me with such force that after an exhaustive investigation I have reached the conclusion that the former cases should be overruled. The Ray Case is based upon and follows an Illinois decision. The Wright Case follows the Ray Case. The Heath Case follows both and construes a late statute, S. L. 1907, p. 353, which it holds has no bearing upon the question. That act reads in part as follows:

ed insufficient, nor shall the trial, judgment or "No indictment or information shall be deemother proceedings thereon be reversed or affected by any defect which does not tend to prejudice the substantial rights of the defendant on the merits."

An analysis of the section shows that it relates to two distinct and separate matters, one referring to the indictment or information, and the other relating to the trial, judgment, or other proceedings. The Heath Case says the insufficiency and defects spoken of relate to the indictment or information only, and not to errors committed by the court during the progress of the case. This is too the Legislature had intended the act to apnarrow an interpretation of the statute. If could easily have said so. Why does the act ply only to the indictment or information, it refer at all to the trial, judgment, and other proceedings. If it was meant that it should relate to the indictment or information only, it seems to me the section would

have read: No indictment or information shall be deemed insufficient, nor shall any judgment based thereon be reversed for any defect appearing therein which does not affect or tend to prejudice the substantial rights of the defendant. It says the judgment shall not be reversed on account of any defect on the trial which does not tend

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"It is apparent that the accused was tried and convicted upon an information charging an trial, with full opportunity to be heard, and offense against the law; that he had a jury that he was in fact deprived of no right or privilege in the making of his defense, unless such deprivation arises from the fact that he was not arraigned and required to plead to the second information before trial."

That case holds that the want of an ar

raignment deprived the defendant of no substantial right or in any wise changed the course of the trial to his disadvantage, and follows and adopts the dissenting opinion of Mr. Justice Peckham in Crain v. U. S., 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097, which it overruled. In Illinois, whose decisions we followed in the Ray Case, we find in Spicer v. People, 11 Ill. App. 298, the following language:

"But if this were the only point in the case. we should be inclined to hold, upon the fact as shown by this record, that defendant announced himself ready for trial, he in effect entered a plea, and that the failure of the record to contain a formal statement on that point would be a mere irregularity for which, no other reasons appearing, the judgment would not be set aside."

to prejudice the substantial rights of the de- I would be in any manner changed or affected. fendant on the merits. If the statute is con- In Garland v. State, 232 U. S. 642, 34 Sup. strued so as to give all of its parts a mean- Ct. 456, 58 L. Ed. 772, Mr. Justice Day, ing, I think it should be held, not only that speaking for the court, said, among other no case shall be reversed on account of de- things: fects in the indictment or information which do not tend to prejudice the substantial rights of the defendant on the merits; but also that no cause shall be reversed by reason of any defect growing out of the trial which does not so operate. But disregarding the statute and coming to the exact question presented: Can a defendant in a criminal prosecution, who has been regularly indicted or informed against; who appears in court in person and by counsel and consents that the case may be set down for trial at a future day, at which time he appears; who informs the court that he is ready for trial, assists in the selection of a jury, cross-examines the people's witnesses, introduces evidence in his own behalf, presents instructions and argues the case to the jury; who has had the advantage of every rule to which he is entitled in all respects as though a formal arraignment had been had and a plea of not guilty entered-stand silently by with a full knowledge of the omission of this formality and then, when the issues have gone against him, claim as a matter of right and be granted a new trial for this reason only? I answer most emphatically, no, and am sustained by the overwhelming weight of modern authority. Garland v. State, 232 U. S. 642, 34 Sup. Ct. 456, 58 L. Ed. 772, overruling Crain v. U. S., 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; Hack v. State, 141 Wis. 346, 124 N. W. 492, 45 L. R. A. (N. S.) 664, overruling three former decisions; People v. Weeks, 165 Mich. 362, 130 N. W. 697, overruling Grigg v. People, 31 Mich. 471; Hayden v. State, 55 Ark. 342, 18 S. W. 239; Brewer v. State, 72 Ark. 151, 78 S. W. 773, overruling two former decisions; State v. Garland, 65 Wash. 670, 118 Pac. 907; State v. Forner, 75 Kan. 423, 89 Pac. 674, 12 Ann. Cas. 703, overruling former cases; Spicer v. People, 11 Ill. App. 298; Wood v. State, 4 Okl. Cr. 440, 112 Pac. 11, 45 L. R. A. (N. S.) 673; Hast v. Territory, 5 Okl. Cr. 167, 114 Pac. 261; State v. Klasner, 19 N. M. 484, 145 Pac. 679, overruling two former decisions; Allyn v. State, 21 Neb. 593, 33 N. W. 212; State v. Greene, 66 Iowa, 12, 23 N. W. 154; State v. Corwin, 151 Iowa, 422, 131 N. W. 659; Bryans v. State, 34 Ga. 324; Hudson v. State, 117 Ga. 704, 45 S. E. 66; Molihan v. State, 30 Ind. 267; People v. Osterhout, 34 Hun, 260; People v. Bradner, 107 N. Y. 1, 13 N. E. 87; State v. Reddington, 7 S. D. 368, 64 N. W. 170; State v. Brock, 61 S. C. 141, 39 S. E. 359. The Supreme Court of the United States and many of the state courts have overruled their former decisions in this regard, and we should not hesitate to do likewise, as no rule relating to a property right

In my opinion, while arraignment and plea are necessary and should not be omitted in criminal cases, still, where the defendant announces himself ready, voluntarily goes to trial, and participates therein without objection or calling the court's attention to the fact that he has not been arraigned, that the failure of the record to contain a formal statement that he was arraigned, or if as a fact he was not arraigned, is a mere irregularity for which the case should not be reversed or the judgment set aside, in the absence of a satisfactory showing that the substantial rights of the defendant were prejudiced thereby.

Feeling as I do, that the adoption of the modern rule as above announced would violate no right of defendants in criminal cases, and that it would often prevent an injustice to the people, I have no hesitancy, much as I respect precedent, in expressing the view that our former decisions upon this subject should be overruled.

I am authorized to state that SCOTT, J., concurs in the views herein expressed.

(62 Colo. 51)

CROUSE et al. v. WHEELER. (No. 8608.) (Supreme Court of Colorado. July 3, 1916.) 1. DIVORCE 320-RIGHT TO MARRY.

A marriage in the state of New Mexico by a person divorced in Colorado, within a month of the divorce was valid under the laws of New Mexico and lawful in the state of Colorado,

A marriage in New Mexico by a person divorced in Colorado, where such marriage would be unlawful, does not render such person guilty of contempt of the court granting the divorce in Colorado, and subject to punishment on return thereto.

(61 Colo. 534)

PETERS et al. v. BOWERS. (No. 8363.) (Supreme Court of Colorado. July 3, 1916.) 1. BANKRUPTCY 288(1)-CLAIM TO PROPERTY-PLENARY SUIT.

One claiming title to and right of possession of land also claimed by trustee in bankruptcy as part of the estate is entitled to a trial by independent suit, at law or in equity, as distinguished from a summary proceeding in bankruptcy.

[Ed. Note.--For other cases, see Bankruptcy, [Ed. Note. For other cases, see Divorce, Cent. Dig. § 447; Dec. Dig. 288(1).] Cent. Dig. §§ 818, 819, 844; Dec. Dig. 3. BANKRUPTCY 295-CLAIM TO PROPERTY 320; Marriage, Cent. Dig. § 29.]

Error to Elbert County Court; Frank S. Turner, Judge.

Contempt proceedings instituted by Roy C. Wheeler against Bertha Wheeler Crouse and husband. Judgment finding defendants guilty of contempt, and they bring error. Reversed and remanded, with directions to dismiss.

Hilliard, Lilyard & Finnicum, of Denver, for plaintiffs in error. J. W. Mullahey, of Kiowa, for defendant in error.

SCOTT, J. On the 8th day of October, 1914, the defendant in error, Roy C. Wheeler, in an action pending in the county court of Elbert county, was granted a decree of absolute divorce from his wife, Bertha Wheeler, one of the plaintiffs in error here. Afterward, and on the 28th day of October, 1914, the said Bertha Wheeler was married to Harry Crouse, one of the plaintiffs in error, within the state of New Mexico. Upon the application of Roy C. Wheeler, both of the plaintiffs in error were cited before the said county court for contempt of court, the charge being their marriage as aforesaid-alleged as constituting the contempt charged. Upon the 15th day of February, 1915, and upon hearing the court found both plaintiis in error guilty of contempt, and assessed a fine against each in the sum of $25 and costs, but suspended the fine in each case upon the payment of costs. This proceeding is to review such judgment.

-SUIT IN STATE COURT.

In the absence of federal statute to the

contrary, one has a right to have his claim
of title to and right of possession of land, also
claimed by trustees in bankruptcy as part of
bankrupt estate, tried in the state court.
[Ed. Note.-For other cases, see Bankruptcy,
Cent. Dig. 88 414, 417; Dec. Dig. 295.1

3. BANKRUPTCY

295-CLAIM TO PROPERTY -SUIT IN STATE COURT.

The provision of Bankruptcy Law (Act July 1, 1898, c. 541, § 23, 30 Stat. 552), as amended in 1903 (Act Feb. 5, 1903, c. 487, § 8, 32 Stat. 798 [U. S. Comp. St. 1913, § 9607]), allowing trustee in bankruptcy to bring suits for recovery of property, as distinguished from summary proceedings, in the bankruptcy court, as well as the state court, does not prevent a third person bringing suit in the state court for property claimed by him and the trustee; no suit therefor being brought by the trustee.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. 88 414, 417; Dec. Dig. 295.] 4. BANKRUPTCY 295-CLAIM TO PROPERTY-SUIT IN STATE COURT-POSSESSION BY TRUSTEE.

That trustee in bankruptcy claims to be in possession of land as an asset of bankrupt's estate does not prevent a third person bringing action therefor against the trustee in the state

court.

The action below was in ejectment under the Code to recover possession of real property, and the subject-matter was 70 acres of agricultural college land in Crowley county and a beet crop growing thereon during the

[1] It was admitted that the marriage in New Mexico was lawful under the laws of that state, and it has been held by this court that the marriage in such a case being law-season of 1913. ful in the state where it was performed is For a number of years prior to November lawful in Colorado. Griswold v. Griswold, 2, 1910, one Hans Peters leased the land 23 Colo. App. 365, 129 Pac. 560; Loth v. from the state and lived upon it with his Loth's Estate, 54 Colo. 200, 129 Pac. 827. wife Margaretha and family. On the above date he purchased the tract from the state for $2,463.65, which sum, to be entitled to a patent, he was to pay in 14 annual installments, the first to be made November 2, 1911, and the last November 2, 1924, with interest on the unpaid balance at 7 per cent. per annum, and there was issued to him the usual certificate of purchase, being No.

[2] It is not contempt of court to do that which is expressly permitted as lawful act, and not in the presence, nor disobedience, of any order of court.

The judgment is reversed, and cause remanded, with directions to dismiss the contempt proceedings.

GABBERT, C. J., and GARRIGUES, J., 2141, stating that he would be entitled to a

concur.

patent upon making the payments. In Octo

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes