92 Ky. 510 | Ky. Ct. App. | 1892
delivered the opinion op the court.
On tbe trial of tbe appellee, under an indictment for obtaining money by false pretenses, tbe court instructed
Are the indictment and the evidence sufficient to have authorized the jury to pass upon the question of the guilt or innocence of the appellee ?
The indictment charges that the appellee obtained by false pretenses, and with the intention to defraud Maria Buchholtz, twenty-five hundred dollars; that he was a banker and had a safe place to invest the money; that his bank was solvent and safe and able to repay her money at any time upon thirty days’ notice; that the laws of the State did not allow him to pay her but four per cent, interest, but he would give her six per cent, interest, but would enter only four per cent, on her book, if she would leave her money with him; that she relied upon said i’epresentation and let him have the money, but his said representations were false and fraudulent, but made with a design to deceive her, and did deceive her, whereby he obtained the said twenty-five hundred dollars and appropriated the same to his own use, and she was permanently. deprived of it, etc., etc. The testimony of said Maria Buchholtz is in substance that on the 24th day of February, 1891, she took a note and mortgage which she held on some Chicago parties for twenty-five hundred dollars to the banking house of the appellee in the city of Louisville and employed him at the price of ten dollars to take charge of said papers and collect the money. He agreed to do so promptly and to notify her when the money was collected; that not hearing anything from the appellee, on the 9th of March, which was Monday, she again visited his banking house and inquired after the col
The witness being a German and not speaking or understanding our language well there is some confusion and apparent contradiction in her evidence, but the foregoing is a fair synopsis of it. It was also in evidence that at the time mentioned the appellee and his bank were hopelessly insolvent, amounting to about $420,000.00 net, and the jury would have been authorized to infer that the appellee knew it.
Article 13, section 2, chapter 29, General Statutes, provides : “ If any person by false pretense, statement or token, with intent to commit a fraud, obtain from another money, property or other thing which may be the subject of larceny * * * he shall be confined in the penitentiary,” etc.
The false pretense of an existing fact in this case, if any false pretense there was, consists in the false representation that the appellee’s bank was solvent and the loan was-safe, when he knew or had reason to believe that it was insolvent and unable to pay, and which induced her to make the loan, or if he induced her to loan the money by false pretense that he had a safe place to invest it upon which she would realize six per cent., intending at the time to appropriate the money to his own use, to-wit : that of the bank, knowing or having reason to believe that the bank was insolvent, although he intended, to repay her, such false pretenses, if made as indicated, were sufficient to authorize the ease to go to the iury. «
But it is contended that, as the appellee, at the time he obtained the loan of the money, had it in his possession, the statutory offense of receiving money by false pretenses was not made out because, under the statute, the offense is not made out unless both possession and title are obtained by the false pretense, and as the appellee did not
The counsel for the appellee refer to many cases that sustain that proposition, and we concur with the general principle therein announced; but we think that principle does not apply to this case. Eor that principle only applies where it takes the delivery of the possession to complete the transfer of the title to the property. The statute reads, “ obtain from another money or property.” So, according to all the authorities, if it takes the delivery of the property to deprive the owner of dominion over it, the defendant must have obtained the delivery as well as the title before he can be made liable under the statute supra.
Mr.Wharton in the second volume of his work on Criminal Law (sec. 1227, 9th Ed.), correctly sums up the meaning of all the cases upon the subject in the following language : “ A delivery of the property must be averred, as the result of false pretenses, in all cases in which the prosecution rests upon such delivery.” Of course, as said, if the delivery is necessary to complete the transfer of the property, th'e prosecution in that case “rests” upon such delivery. To illustrate the rule: Suppose A, by false pretenses, buys a horse from B, but B does not deliver the horse to A; in such case it can not be said that A has, in the sense of the statute, obtained B’s property by false pretense, because, as yet, B has the property; he has not parted with it, and by reason of the fraud, he is not bound to part with it; hence he has not parted with his property by the false pretenses of A. But if the property is so situated that B can make a complete transfer of the property to A without delivering the
In the case of People v. Haynes, 11 Wend., 557, it was held by the Supreme Court that, where goods were delivered to a person, but the title did not pass to him except upon condition, and, after the delivery, the purchaser obtained the title by false pretenses, he was guilty of obtaining the goods by false pretenses'. Upon appeal to the Court of Appeals that court approved of the principle announced, but reversed the case on the ground that the sale was absolute.
In the case of Commonwealth v. Hutchinson, 114 Mass., 327, it was held, under a statute that provided if any person obtained, by false pretenses, the signature of another to a writing that would be forgery at common law, he should be punished, etc., that if it was necessary that the writing should be delivered in order to
In the case of Commonwealth v. Devlin, 141 Mass., 423, it was held where there was a delivery of sheep to a purchaser, the title not to pass until the sheep were paid for, and the purchaser obtained the title by false pretenses, he was guilty, etc.
These cases establish the -doctrine that it is only in case the delivery of the property is necessary in order to completely deprive the owner of it, that the false pretense must relate to such delivery. But if the delivery is not necessary to a complete transfer, the false pretenses need not relate to the delivery in order to make out the offense against the statute. And if the possession has been delivered to the party, but not the right of property, and he, after such delivery, obtains the title by false pretenses, he is guilty under the statute of obtaining goods, etc., by false pretenses. In this case the appellee had collected the woman’s money, as her collecting agent, and had the possession of it as such agent; and when she demanded it, he, recognizing her right and the character of his possession, induced her to part with her title to him. In such case, it is clear that the prosecution does not rest upon delivery, as there was a complete transfer of property without the delivery. The case is ordered to be certified, etc.