195 Ky. 843 | Ky. Ct. App. | 1922
Opinion of the Court by
Certifying the law.
This indictment, duly returned in the McCracken circuit court, accused the appellee, Shell Harper, and Charlie Walker of the offense of conspiring and confederating together for the purpose of obtaining money by false pretenses, statements, representations and tokens, with the intent to defraud the firm of Stahl and Hayden, who were dealers in leaf tobacco in the city.of Paducah, Ky., and that in pursuance of the conspiracy they did obtain from the firm $65.25 by representing to them that certain tobacco, which Walker delivered pursuant to -a prior contract, whereby he sold his tobacco to the firm for 14 cents per pound, was a part of his crop of tobacco which the 'firm had previously purchased at the price stated, when in truth and in fact the tobacco so delivered and represented to be a part of Walker’s crop did not belong to him nor was it a part of his tobacco, hut on the contrary it belonged to his co-defendant, the appellee, Shell Harper, who "had procured Walker to deliver it to the firm and procured him to make the representations and to thereby obtain for his tobacco an increase of six or seven cents per pound more than it was worth and which sum in the aggregate totaled the $65.25 above stated. 'The court overruled the demurrer filed by appellee to the indictment and he entered a plea of not guilty. At the conclusion of the evidence introduced by the Commonwealth the
The testimony introduced showed without contradiction these facts: That some time prior to the delivery of the load of tobacco in question Walker sold his crop to Stahl and Hayden for the price of fourteen cents for the good tobacco, and two cents for the lugs; that after the contract was made, Harper, who was a neighbor of Walker, learned of it and went to the latter’s father and offered to pay him if he would procure his son to allow appellee’s tobacco to be delivered as a part of the son’s crop under his contract; that shortly thereafter appellee did enter into an agreement with Ms co-defendant to that effect and agreed .to pay him two cents per pound for all the tobacco .that he would deliver under his contract ; that pursuant to the agreement Harper loaded his tobacco on his wagon and hauled it to Paducah and delivered the wagon and the load to his co-defendant at an agreed place and the latter carried it to the warehouse of Stahl and Hayden where he delivered it and stated at the time to the receiving agent of the firm that it was a part of his crop; that appellee’s son accompanied him when the tobacco was delivered, but appellee, upon Ms own suggestion, declined to do so; that Walker received a check from the firm for the amount of tobacco so delivered at his contract price; which he cashed and later in the day met appellee and paid to him the amount of the check less the agreed two cents per pound commission; that after the discovery of the fraud appellee agreed with Mr. Stahl, a member of the firm, that his tobacco which had been delivered in the manner stated was worth as much as five cents per pound less than Walker’s crop and he paid to the firm that difference.
That the testimony, the substance of which we have briefly outlined, sustained the allegations of the indictment and was sufficient if believed by the jury to authorize a conviction, we entertain not the slightest doubt. The unlawful agreement to defraud the firm of Stahl and Hayden, which constituted the conspiracy, is not only admitted by appellee but it is also proven by his co-defendant and the latter’s father. The same is also true as to the result of the conspiracy which was literally carried out by Walker and by means of which he fraudulently obtained from the firm money which.it parted with under the belief of the fraudulently represented fact that the tobacco which it received was a part of Walker’s crop which it had theretofore purchased at the stipulated price.
When the object of the conspiracy is 'Consummated, if the consummated act is a felony, under the l'aw, the conspiracy is merged in it. Commonwealth v. Blackburn, 1 Duvall 4; 12 Corpus Juris, 580. The representations and pretenses by means of which money or other property is fraudulently obtained in this character of offense need not be expressed in words, since it is sufficient if they are communicated to the person defrauded by “any act, word, symbol, or token calculated and intended to deceive. It may be made either expressly, or by implication.” 25 Corpus Juris, 610; Commonwealth v. Beckett, 119 Ky. 817, 84 S. W. R. 758, 27 Ky. L. R. 265, 115 A. S. R. 285, 68 L. R. A. 638; Com. v. Murphy, 96 Ky. 28, and
The evidence, therefore, as we view it, was sufficient to establish every element of the offense for which appellee was tried and was sufficient, unless explained or in some manner overturned, to uphold a conviction, and the court erred in directing the verdict of acquittal. Wherefore, this opinion is certified as the law of the case.