Anderson v. Commonwealth

• Decision Date: 10 June 1924
• Citation: 262 S.W. 1105,203 Ky. 681
• Parties: ANDERSON ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

262 S.W. 1105

203 Ky. 681

ANDERSON ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 10, 1924

Appeal from Circuit Court, McCracken County.

Ira Anderson and Levi Chapman were convicted of conspiracy to commit a felony, and appeal. Affirmed as to the former and reversed as to the latter.

L. B Alexander, of Paducah, for appellants.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

The appellants, Ira Anderson and Levi Chapman, and one E. C Copeland, alias E. M. Woody, were jointly indicted by the grand jury of McCracken county charged with the offense of "conspiring, confederating and banding themselves together for the purpose of committing a felony, by obtaining money by false pretenses, statements and tokens with intent to commit a fraud." As the great length of the indictment forbids its insertion in the opinion, it is enough to say that it in due form charges that the fraud and felony committed by the defendants in pursuance of the alleged conspiracy was accomplished by their execution of and obtention of money upon the following false check:

"Paducah, Ky. 12/13--1922. No. ______.

First National Bank, 73--34, pay to the order of Ira Anderson, $7.00, seven dollars, for cash.

E. M. Woody."

To this check E. C. Copeland signed the fictitious name E. M. Woody, and following its indorsement by Ira Anderson, the check was carried by Levi Chapman at the solicitation of one, or both of them, to the store of E. Ham & Son, merchants of the city of Paducah, and after its indorsement by Chapman, cashed by Earl Ham, a member of the firm, who, at the request of Chapman, paid him $7 in money upon and for the check; and this money Chapman at once delivered to Anderson and Copeland or to Anderson alone. When in due course the check was presented for payment by Ham to the bank upon which it was drawn, its payment was refused because neither the drawer, payee, or indorsers of the check had any funds therein with which to pay it. Ham & Son were never repaid the $7, or any part thereof, obtained of them by Chapman on the check. The transaction thus resulting in the alleged fraudulent procurement of the $7, on the worthless check by Copeland, Anderson, and Chapman, together with the alleged conspiracy preceding it and alleged fraudulent acts and false representations made by them to obtain the money, constituted the felony charged in the indictment.

The appellants, Anderson and Chapman, were jointly tried in the court below for the offense charged in the indictment, each found guilty, and his punishment fixed by verdict of the jury at confinement of one year in the penitentiary; and each of them has appealed from the judgment manifesting his conviction.

It is insisted for the appellants that the judgment should be reversed because of error committed by the trial court: (1) In refusing a peremptory instruction directing a verdict of acquittal; (2) in admitting incompetent evidence; (3) in failing to properly instruct the jury; (4) in refusing him a new trial on the ground that the verdict was unsupported by and flagrantly against the evidence. It is not disclosed by the record before us what disposition has been made of the indictment as to E. C. Copeland. It does show, however, that he was introduced and testified as a witness for the commonwealth; and, although in advance advised by the court that he need not testify if unwilling to do so and that he could not be required to make any statement that would incriminate himself, he voluntarily and fully confessed his participation in the commission of the offense charged in the indictment. His testimony was substantially to the effect: That the night before the check in question was written, he and the appellant Anderson, whom he had known several years, were together in an intoxicated condition, and at a late hour went to the home of Anderson, where he, upon the latter's invitation, spent the remainder of the night. On the following morning they were in bad condition from the dissipation of the previous night and without whisky or money. In their deliberations over this situation, Anderson said,

"We have got to have some whisky," and immediately produced a check book containing blank checks intended to be drawn on the First National Bank of Paducah, which he laid on a table, and from which Copeland, by his direction, obtained, filled out, and signed with the fictitious name, E. M. Woody, the check of $7 copied in the opinion. This check Anderson took in his possession and carried from the house with the statement that he would get a negro to obtain the money on it, with which he (Anderson) would buy some whisky for his and Copeland's use. Copeland remained at Anderson's home in conversation with the latter's father until Anderson returned with whisky he claimed had been purchased with the $7 obtained on the check. Copeland also testified that he did not see the check given to Chapman by Anderson, did not himself give it to him, and did not then know Chapman; and further that when he wrote and signed the check he was in a dazed state of mind from the previous night's debauch, and then expressed to Anderson his unwillingness to fill out the check or sign it with the name E. M. Woody, and told him that he had no money in the bank; but that Anderson insisted that he make out the check and sign the name E. M. Woody to it as directed, and assured him that it would be all right, to which he (Copeland) finally yielded.

Earl Ham, of the firm of Ham & Son, by whom the $7 check was cashed, testified that he cashed it at the request of Chapman, who brought it to his store and at the time stated that Anderson had given him the check to get it cashed. Ham informed Chapman that he knew Anderson, the payee in the check and whose name appeared on the back thereof, but did not know E. M. Woody, whose name appeared at the bottom of the check; in reply to which Chapman, without saying that he knew Woody, assured Ham that the check was all right and, if not all right, he would make it so; and thereupon wrote his name on the back of it below that of Anderson; after which, Ham accepted the check and let Chapman have $7, the amount for which it was drawn. Ham further testified that he knew the handwriting of Anderson, but that after cashing the check he did not see Anderson until the latter's trial under the indictment, though after the bank's rejection of the check he made one or more visits to his residence to see if he could not get him to make good the loss he (Ham) sustained by reason of the fraudulent character of the check and the bank's refusal to pay it.

The appellant Anderson, in testifying in his own behalf, specifically denied that he, as testified by Copeland, suggested to the latter or directed that he execute the check in question; that he furnished him for that purpose a book of checks for use at the bank upon which this check was drawn; or that he directed Copeland to sign the fictitious name "E. M. Woody" to the check, or told him to remain at his (Anderson's) residence while he went out to see a negro who would get the check cashed and buy them some whisky. Anderson also denied that he gave the check to Chapman, got him to have it cashed, or that he received the money obtained on the check by Chapman. As to these transactions his testimony was that the check was written by Copeland, with the name "E. M. Woody" as drawer, and indorsed by him (Anderson) at the shop of a negro undertaker near his residence, and was there given Chapman by Copeland, with the request that he obtain for him the money on it; and that shortly thereafter Chapman returned with the $7 obtained on the check, which he paid to Copeland.

We do not find in the testimony of the appellant Anderson any denial of that of Copeland as to the latter's spending the previous night at his home, or of Copeland's testimony in regard to the drinking bout in which they indulged before their arrival there. Anderson's testimony does, however, contain the admissions that he had known Copeland two or three years; that they had worked together; that he saw Copeland fill out the check and sign the fictitious name E. M. Woody thereto; and that immediately thereafter, without questioning this act of Copeland, he indorsed the check with his own signature, but stated that he indorsed the check because Levi Chapman, when asked by Copeland to get the check cashed, said he did not know Copeland but did know Anderson, and that if he would sign the check he (Chapman) would get it cashed, whereupon he (Anderson) signed his name on the back of it, and it was then delivered to Chapman with direction to get it cashed. He also admitted that he knew no person bearing the name E. M. Woody; and it was abundantly shown by the testimony of other witnesses that there was no...