Braswell v. Com.

• Decision Date: 28 October 1960
• Citation: Braswell v. Com., 339 S.W.2d 637 (Ky. 1960)
• Parties: Frank BRASWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

Page 637

339 S.W.2d 637

Frank BRASWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 28, 1960.

W. Gordon Iler, Owensboro, for appellant.

John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.

MONTGOMERY, Judge.

Frank Braswell appeals from a judgment of conviction of obtaining money under false pretenses. KRS 434.050. He was sentenced to confinement in the penitentiary for four years. Several grounds are urged for reversal.

Appellant contends that there is a fatal variance between the indictment and the proof in the case. The indictment charged that appellant defrauded 'Mrs. Flora Alvey' of '$80.00 in lawful money of the United States.' The instructions followed the language of the indictment. The proof showed that appellant called on R. A. Alvey and secured his application for insurance.

It was charged that appellant falsely represented to Mrs. Alvey that he was an agent of the Wabash Life Insurance Company of Indianapolis, Indiana. Appellant had talked with Mr. Alvey on the porch at his home. Mrs. Alvey had overheard the conversation from inside the house. The application was made in the name of Richard Alvey and was signed by R. A. Alvey, whose first name is Richard. The application was for insurance on the lives of both Richard and Flora. Appellant, in the presence of Mrs. Alvey, received from R. A. Alvey a check in the sum of $80 in payment of the initial premium. The check was drawn on a personalized check form bearing the name and address of R. A. Alvey. A receipt was executed to 'Mr. and Mrs. Richard Alvey.' The application, check, and receipt were dated September 21, 1959, the date of the transaction. Appellant collected the money on the check at the grocery where the Alveys traded.

Generally, a variance between the indictment and the proof is not regarded as material unless it misleads the accused in making his defense or exposes him to danger of a second conviction of the same offense. Lowery v. Commonwealth, 191 Ky. 657, 231 S.W. 234; Miller v. Commonwealth, 234 Ky. 224, 27 S.W.2d 957; Harr v. Commonwealth, 245 Ky. 278, 53 S.W.2d 575, and Thomas v. Commonwealth, 259 Ky. 786, 83 S.W.2d 460. Appellant does not contend that he was misled by the indictment in making his defense; therefore, the question is whether the variance is so material as to expose him to danger of a second conviction of the same offense.

The immunity sought to be invoked is a constitutional one against putting an accused in jeopardy twice for the same offense. Kentucky Constitution, Sec. 13. The 'same offense' within the constitutional meaning does not signify the same offense by name or designation but has been defined as the same criminal act or omission. Arnett v. Commonwealth, 270 Ky. 335, 109 S.W.2d 795. This is the test on a plea of former jeopardy. Rogers v. Commonwealth, 266 Ky. 220, 98 S.W.2d 496. Cf. Miller v. Commonwealth, 242 Ky. 122, 45 S.W.2d 853. To sustain a plea of former jeopardy, the burden is upon the accused to show that the charge previously tried is the same charge, or some degree of it, now being tried, the evidence heard on the former trial was substantially the same, and the same criminal act was involved upon each trial. Wingfield v. Commonwealth, 197 Ky. 331, 246 S.W. 822; Middleton v. Commonwealth 198 Ky. 626, 249 S.W. 775. The scrutiny of the Court on a plea of former jeopardy is directed at the determination of the same question as on a plea of fatal variance. The only difference is the point from which it is viewed; one, after the second trial; the other, immediately after the first trial and before the second.

It is provided in Criminal Code of Practice, Sec. 128:

'If an offense involve the commission, of, or an attempt to commit an injury to person or property, or the taking of property, and be described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured or attempted to be injured, or as to the owner of the property taken or injured or attempted to be injured, is not material.'

The variances claimed to be material here concern the identity of the person from whom the property was obtained and the form of the property.

Under an indictment for the same offense charged here, it was held to be an immaterial variance that the money obtained belonged to a different person than alleged in the indictment. Hennessy v. Commonwealth, 88 Ky. 301, 11 S.W. 13, 10 Ky. Law Rep. 823. An erroneous allegation as to the person injured or as to the owner of the property taken has been held not to be a fatal variance. Hayes v. Commonwealth, 173 Ky. 188, 190 S.W. 700. See also Thomas v. Commonwealth, 259 Ky. 786, 83 S.W.2d 460. The misdescription of an auto was held not to be a fatal variance where the proof...