56 Kan. 54 | Kan. | 1895
The opinion of the court was delivered by
: The appellant and one John Tannyhill were jointly charged with obtaining from William C. Bowser three horses and a check for $20 by means of false pretenses. It appears that the defendant had at one time worked for Bowser, who was a farmer. On the 8th of December, 1892, Davis and Tannyhill went to the residence of Bowser. Tannyhill, being a stranger, was introduced to Bowser by Davis. The defendant testified in his own behalf, and admitted that he went to Mr. Bowser’s house at the time stated, in company with Tannyhill, and introduced him to Bowser; that Tannyhill asked Bowser if he had a team of horses to sell; that Bowser replied he had; that Tannyhill and Bowser then went out to the corral ; that he remained and talked with Mrs. Bowser; that Bowser came back to the door, showed him a note, and asked him if it was his note ; that he looked at the note and said, “Yes, I gave that note to Tannyhill in settlement ’ ’ ; that Tannyhill afterward brought out two horses; that he was not present during the negotiations for the horses ; that he understood when they went there that Tannyhill intended ■ to trade his note for horses; that afterward Bowser approached
The false pretenses charged are that Davis represented to Bowser that the note before referred to, which was for $240, was given by Davis to Tannyhill in payment for cattle which he had bought, and which he (Davis) then had in his possession, and was feeding with other cattle at or near Muscotah; that he also pretended that he had money deposited in the bank of Effingham to meet the check for $111. The means by which it is charged that the property was obtained was through a trade'of an interest of $160 in Davis’s note by Tannyhill to Bowser in exchange for two horses. The information contains two counts : The first charges obtaining the two horses as above stated ; the second count charges obtaining another horse and Bowser’s check for $20 on the next day, by means of the same false pretenses.
The issue at the tidal was narrowed down to the question whether or not the pretenses alleged were in fact made. Bowser, his wife and daughter testified that they were made. The defendant denied making, any such statements or representations. There was no controversy as to the fact that the property charged in the information to have been obtained was in fact purchased by Tannyhill from Bowser and taken away, nor that the only consideration paid for it was the Davis note for $240. Nor was there any claim by Davis that the note was in fact given for cattle he
Many errors are claimed in the instructions. Some of them appear at first blush to be serious, but when considered in the light of all of the testimony offered at the trial, we find nothing sufficient to warrant a reversal. The main, and we may say substantially the only issue, tried, was whether or not the defendant did pretend that the note was given for cattle, and that he was feeding the cattle near Muscotah, where he lived, and that he had money in the bank to pay the check he gave to Bowser. These pretenses were as to a past transaction and existing facts, affecting materially the ability of the defendant to pay. If false, and made for the purpose of defrauding the
The tenth instruction, standing by itself, would be erroneous, but taken in connection with all the other instructions and as applied to the determination of the actual controversy in this case, doe.s not appear to be misleading, and is not sufficient ground for a reversal.
It is insisted that the fifteenth instruction is misleading because it states that it is not necessary that the evidence should show that Davis shared in the proceeds of the property obtained: The evidence in the case clearly shows that Tannyhill and Davis came to Bowser’s together, and went away together. It also shows that whatever false representations were made were in fact made by Davis himself. We do not think it was incumbent on the state to show that any division was made of the property obtained by this fraudulent transaction. It was sufficient when it was proven that Davis and Tannyhill, acting together, obtained Bowser’s property by means of false pretenses, with the intent to cheat and defraud him of it. If it were a fact that Tannyhill kept all the property, Davis would still be guilty.
Other errors are claimed on the instructions and in the admission of evidence, none of which appear worthy of especial mention. Viewing the whole record, the defendant appears to have been fairly tried, and the judgment must be affirmed.