141 Ky. 534 | Ky. Ct. App. | 1911
Opinion of the Court by
Reversing.
The appellant Smith, under an indictment charging him with the crime of obtaining money under false pretenses, committed as follows, to-wit: “That said Smith did in the county and State aforesaid, on the 22d day of September 1909, and before the finding of this indictment, wilfully and feloniously say and represent to J. P. Thompson that he had purchased 750 sticks of tobacco from Gr. W. Blankenship, and said tobacco was then his
The indictment was found under section 1208 of the Kentucky Statutes, reading:
“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 shall be confined in the penitentiary not less than one nor more than five years.”
It is earnestly insisted that the indictment is fatally defective and the court erred in failing to sustain a g-eneral demurrer to it. Its sufficiency is assailed upon the ground that it does not in apt terms charge that Thompson relied upon and was induced to furnish the money to Smith upon the faith of his representations as to the ownership of the tobacco, or aver that but for said representations he would not have advanced the money. It has been frequently held by courts.and announced by writers on criminal law, in considering the sufficiency of. indictments under similar statutes to ours, that, the indictment should charge .in terms or substance that the person defrauded relied upon the truth of the false statement, pretense or token and was induced thereby to part with his money or property. Barton vs. People, 35 Ill., 573, 10 L. R. A., 302; State vs. Miller, 47 Ore., 562; 6 L. R. A., n. s., 365; Bishop on Criminal Law, vol. 2, secs. 415, 462; Wharton’s Criminal Law, vol. 2 sec. 1215; 19 Cyc. 429; 12 Am. & Eng. Ency. of law page 819. But although the indictment must show that the person defrauded was induced by the false representation or statement to part with his money, it
“A statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case.”
And when the statute does not prescribe the form of indictment, or the words that shall be used, it is only necessary that it conform to the general rules of law applicable to such indictments, and be so plain and explicit that the’-e cannot be any reasonable doubt as to its meaning. The indictment being considered, averred that Thompson “relying upon said statements as true and believing in the truth of same” advanced the money. This was- in substance saying that Thompson was induced by the statements, which he believed to be true, to advance the money, and in effect a charge that he would not have advanced it except for the fact that the statements were made and he believed them. The accused, assuming that he had ordinary intelligence, could not fail to understand, after reading the indictment, the nature of the charge against him. Nor could the court have any difficulty in pronouncing judgment, as the indictment contains every averment necessary to constitute the offense charged,
- But we do not think The Court intended to hold that the indictment was defective because it'did not charge that “but for said statements would not have extended credit or parted with his goods,” or to say that this averment was necessary in addition to the averment that the party defrauded relied upon the truth of the statements and was induced thereby to part with his property, Being; of the opinion that the indictment is sufficient, we wiil now consider the question of whether or not the court properly instructed the jury.
The record shows practically without dispute that in September 1909 appellee Smith represented to J. P. Thompson that he had purchased 750 sticks of tobacco from G-. W. Blankenship, which was then his property and in his possession. It is further shown that Gr. W. Blankenship raised, with the consent of Smith and upon a farm rented by Smith, about 750 sticks of tobacco, and that this tobacco as well as some other tobacco raised on the place was in Smith’s barn at the time the money was obtained. There is some evidence that Smith previous to obtaining the money from Thompson had bought this tobacco from Blankenship, and that he paid the wife of Blankenship twenty dollars on the purchase price of the tobacco, or at least advanced to her this sum on the faith of it. In short, we may safely say there is some evidence that Smith at the time he obtained the money from Thompson had bought Blankenship’s tobacco, and that it was in his possession. The tobacco of Blankenship with the other tobacco raised by Smith and others on the place remained in the barn until the spring of 1910, when all of it was levied upon by an officer under a process issued to secure the landlord’s rent. After it was levied upon, all of it, including the Blankenship to
Upon another trial the court in addition to the instructions given will submit the one indicated.
Wherefore the judgment is reversed with directions for a new trial in conformity with this opinion.