Com. v. Ferguson

• Decision Date: 15 October 1909
• Citation: 135 Ky. 32,121 S.W. 967
• Parties: COMMONWEALTH v. FERGUSON.
• Court: Kentucky Court of Appeals

121 S.W. 967

135 Ky. 32

COMMONWEALTH v. FERGUSON.

Court of Appeals of Kentucky.

October 15, 1909

Appeal from Circuit Court, Morgan County.

"To be officially reported."

Ambrose Ferguson was indicted for obtaining money by false pretenses. From a judgment sustaining a demurrer to the indictment, the Commonwealth appeals. Reversed.

Jas Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen., and John W. Waugh, for the Commonwealth.

S. M Nickell and A. N. Cisco, for appellee.

CARROLL J.

The only question in this case is whether or not the lower court ruled correctly in sustaining a demurrer to the following indictment: "The grand jury of Morgan county, in the name and by the authority of the commonwealth of Kentucky accuse Ambrose Ferguson of the crime of obtaining money by false pretense, committed as follows: The said defendant, Ambrose Ferguson, on the 23d day of March, 1908, in the county and circuit aforesaid, did unlawfully, willfully, and feloniously, and by falsely representing and pretending to K. S. Lykins and S. M. Freese that he, the said Ferguson, was 21 years of age on the 26th day of March, 1904, and able to contract for himself, and did thereby induce and procure the said Lykins to purchase and take conveyance from him (Ferguson) of a certain tract of land in Morgan county, Ky. and to pay him therefor the sum of $2,400, when in truth and in fact he was under 21 years of age at that time, and he well knew same, and said statements and representations when so made by him were false and fraudulent, and known to him to be false at the time, and were made by him with the intention of defrauding the said Lykins and Freese, and that they did not get said land under the said conveyance, but were induced and did pay to the said Ferguson the sum of $2,400 believing and, by reason of said statements, not knowing the same to be false, against the peace and dignity of the commonwealth of Kentucky." We are not accurately advised as to the grounds upon which the demurrer was sustained. It may have been because the indictment failed to charge that Lykins and Freese suffered any loss by reason of the fraudulent representations made to them by Ferguson, or upon the ground that a false statement made by an infant as to his age does not come within the statute. But, whatever the reason that influenced the lower court, his ruling was erroneous, as in our opinion the indictment was sufficient.

It will be observed that the indictment charges that Lykins and Freese did not get the land under the conveyance made to them by Ferguson at the time they paid the $2,400, but impliedly admits that they afterwards obtained a good title to the land, and so we will assume that they did not suffer any loss. It is not necessary that an indictment for false pretense shall charge that the person to whom the false pretense was made sustained any loss. Section 1208 of the Kentucky Statutes (Russell's St. § 3474), describing the crime of obtaining money or property by false pretenses, reads 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 shall be confined in the penitentiary not less than one nor more than five years." Under this statute it is the obtention by fraudulent pretenses of money or property that may be the subject of larceny that constitutes the offense. When the owner is induced to, and does, part with his property by reason of the false and fraudulent statement or pretense, the offense in this particular is completed. It is wholly immaterial whether he actually or ultimately suffers a loss or not. If he should regain his property, or the person obtaining it or another should fully compensate him, it would not lessen the offense, or prevent the commonwealth from prosecuting and convicting the offender.

Although this precise question has not, so far as our investigation goes, been heretofore passed upon by this court, it has often been considered by courts of last resort in other jurisdictions, and the rulings are entirely uniform. Thus, in People v. Genung, 11 Wend. (N. Y.) 18, 25 Am. Dec 594, Genung by false pretenses procured Conly to sign a note. In passing upon an objection to the indictment similar to the one made in this case the court said: "It was suggested upon the argument that the indictment was bad in not charging loss or prejudice to have been sustained by Conly. *** The offense is complete when the signature is obtained by false pretenses with the intent to cheat or defraud another. It is not essential to the offense that actual loss or injury should be sustained." In Commonwealth v. Coe, 115 Mass. 481, in considering a prosecution for obtaining money and property under false pretenses under a statute substantially like ours, the court said: "The offense consists in obtaining property of another by false pretenses. The intent to defraud is the intent, by the use of false means, to induce another to part with his possession and confide it to the defendant, when he would not otherwise have done so. Neither the promise to repay, nor the intention to do so, will deprive the false and...