| Ky. Ct. App. | Jan 26, 1915
OpxnioN op the -Court by
Affirming.
Defendant, Lida Fnson, was found guilty of obtaining property by false pretenses, and asks a reversal of tbe judgment of conviction.
Tbe facts are these:
Prior to tbe commission of tbe offense with wbicb he is charged Fuson bad executed two notes to James Wynn, one for $400 and one for $200. Wynn became ill, and Alice Wynn, bis wife, placed tbe notes in tbe keeping of her father, William Carpenter. According to the evidence for the Commonwealth, Fuson went to Wynn’s home to inquire about tbe notes. Wynn was unconscious, and Fuson was told- tbat William Carpenter bad tbe notes. Fuson then went to William Carpenter and told him tbat Alice Wynn, bis daughter, bad sent him there to get tbe notes. This statement was false. Carpenter, be lieving tbe statement, and relying thereon, delivered tbe notes to Fuson. At tbe same time Fuson gave Carpenter a cheek for $500, stating tbat he bad tbat amount of money in tbe bank on wbicb it was drawn. Fuson claims that tbe two notes represented borrowed money and tbat tbe $200 note should have been for $100. He also claims tbat be bad paid Wynn about $325 on tbe two notes, and owed only a balance of about $170. He denies telling Carpenter that Alice Wynn bad sent him for tbe notes. He denies executing a $500 check, and claims tbat the check which be actually delivered was for $170, and tbat be bad sufficient money in bank to pay this note.
Defendant insists tbat the trial court -erred in refusing a continuance. His affidavit shows tbat be gave to jibe clerk a few days before tbe trial a written memoran
It is next insisted that the court also erred in refusing to grant a new trial. The affidavit being very long, we deem it unnecessary to copy it in full. It is sufficient to say that very little, if any, newly discovered evidence relied on was competent, and the facts alleged are not sufficient to show that the evidence could not have been discovered prior to the trial by the exercise of reasonable diligence.
As the court did not err in refusing either a continuance or a new trial, and the indictment and instructions are not subject to criticism, and the evidence is sufficient to sustain a conviction, we see no reason for disturbing the judgment.
Before closing this opinion we deem is necessary to discuss a question affecting the transcript of evidence. It appears that the stenographer’s certificate appended to the transcript, wherein she certifies that “the foregoing is a complete transcript of the evidence heard on the trial of the case of Commonwealth of Kentucky v. Lida P. Fuson, as appear from my stenographic notes taken on the 7th day of the September term, 1914, of the Whitley Circuit Court, and all the objections, exceptions and avowals made during the trial of said case,” is on a separate page from the transcript, and was signed by the stenographer on October 24,1914. Following the certificate is the certificate of the circuit judge, signed on said date, wherein he certifies that “the foregoing transcript of evidence has been examined, approved and signed by me as the judge before whom the trial was had at the September term, 1914, of the Whitley Circuit Court.” It is admitted by counsel, and the facts show, that these two certificates were signed prior
Judgment, affirmed!..