136 Ky. 8 | Ky. Ct. App. | 1909
Opinion op the Court by
— Affirming.
The appellant was convicted and his punishment fixed at five years’ confinement in the penitentiary, under an indictment charging him with the crime of obtaining by false pretenses and statements the signature of one Sarah Harris to a writing, the false making of which would be forgery with the felonious intent to commit a fraud and obtain from her property of value. Following the conviction, motions in arrest of judgment and for a new trial were overruled. The grounds urged in support of the motion in arrest of judgment were that the indictment did
The statute (section 1208) under which the conviction was had is as follows: “If any person by any false pretense, statement or token, with intention to commit a fraud, obtain from another money, property or other thing which may be the subject of larceny, or if he obtain by any false pretense, statement or token, with like intention, the signature of another to a writing the false making whereof, would be forgery,' he should be confined in the penitentiary not less than one, nor more than five years.”
Such parts of the indictment as we deem it necessary to copy in the opinion read as follows: “The said P. L. McDowell, in the county and state aforesaid, on the-'day of September, 1909, and before the finding of the indictment, did unlawfully, willfully and feloniously, by falsely pretending and representing to Sarah Harris that he was doing business for [the government (meaning the government of the United Stales of America), that he was drawing $50 a month from the said government, that as such representative of. said government he needed a house for headquarters, and a housekeeper for same and that he would pay her as said housekeeper $2 a week, for the government; that he had $625, which he would pay her, and, the said Sarah Harris, relying upon the said statement as true, he obtained from her her signature to a deed of conveyance, whereby she con-'
It is contended .for appellant that the indictment does not state a public offense because the alleged false representations whereby appellant obtained of ’Sarah Harris the deed to her house and lot were not as to pretended past occurrences or existing facts, but based upon a promise having reference to an undertaking on his part for the future payment to her of money. In passing upon this contention, we must look to the indictment as a whole, in doing which we find that it clearly contains (1) false statements as to several pretended existing facts, and (2) not less than two false promises. The false pretense, statements, or representations are: (1) That appellant was doing business for the government; (2) that he was drawing $50 per month from the government; (3) that as a representative of the government be needed
While it must be conceded to be the law that a mere false promise to do something resting upon an event to happen in the future is not within the statute denouncing false pretenses, yet it is equally true that a promise of future performance, when' coupled with a false statement as to a past or existing fact or facts, which induces another to rely upon the false promise, will, in connection with the false statement' as to the existing fact or facts, constitute a “false pretense” in the meaning of the statute, and conviction thereon may be had. As said in Commonwealth v. Ferguson, 121 S. W., 967: “It is not important in what the false statement consists, so that it relates to some material past, or existing facts, and is calculated to, and does, deceive.” Bishop’s New Criminal Law, Secs. 433-436; 2 Wharton’s Crim. Law, Sec. 767; Commonwealth v. Grady, 13 Bush, 285, 26 Am. Rep. 192; Commonwealth v. Haughey, 3 Metc. 223; Commonwealth v. Beckett, 119 Ky., 817, 84 S. W.. 758, 27 Ky. Law Rep., 265, 68 L. R. A., 638,
We also find a similar statement of the law in 12 Am. & Eng. Ency. of Law (2nd. Ed.) '812: “Where a false representation of an existing or past fact, calculated to induce the confidence which led the prosecutor to part with his property, is accompanied by, or blended with, a promise to do something in the future, this is a sufficient false pretense, although the promise, as well as the false statement of fact, operated upon the mind of the prosecutor in inducing him to part with his property.” The doctrine under considera^ tion is thus stated in Roberson’s Kentucky Criminal Law & Procedure, Sec. 471, as follows: “It must be
In view of the authorities from which we have so liberally quoted, there can be no doubt as to the sufficiency of the indictment. It clearly states a public offense in the meaning of the statute under which it was found. Therefore both the demurrer and motion in arrest of judgment were properly overruled.
It is further contended by counsel for appellant that the false statements set out in the indictment, if made by appellant, as therein charged, were not calculated to mislead or deceive, and that the woman to whom they were made had at hand the means of detection. The evidence found in the record does not so strongly support this contention as to make it conclusive. While from one point of view it might be said that Sarrah Harris, the woman defrauded, could have protected herself by retaining the deed until she could make inquiry as to the representations made by appellant, the failure to do so did not per se entitle him to an acquittal. It appears from the evidence that she is an ignorant old negro woman, and appellant a negro preacher. His calling was therefore well calculated to give her greater confidence in his statements than she would have placed in what might have-been'said to her by an ordinary individual. According to the evidence, he knew she
In view of the facts alleged in the indictment, and the evidence supporting them, no reason is perceived for sustaining appellant’s contention that the false statements made by him to obtain the deed to Sarah Harris’ lot were not calculated to mislead and deceive, or that she was so situated as to have been able to prevent the perpetrated fraud. 'We are aware of the rule announced by this court in Commonwealth v. Craddy, 13 Bush, 285, and other cases, that a false representation is not within the statute, unless calculated to deceive a person of ordinary prudence and discretion but testing the indictment in this case, independently of the evidence, by that rule, we think it good. Especially is this true in the more recent and
So reasoning upon tbe line adopted by tbe opinion, supra, it would seem that, in determining whether a
Appellant’s final contention that the jury was not properly instructed cannot be sustained. The instructions, though brief, as a whole contained all the law of the case, and nothing more was needed for the guidance of the jury.
Wherefore the judgment is affirmed.