Com. v. Harper

• Decision Date: 06 October 1922
• Parties: COMMONWEALTH v. HARPER.
• Court: Kentucky Court of Appeals

243 S.W. 1053

195 Ky. 843

COMMONWEALTH v. HARPER.

Court of Appeals of Kentucky.

October 6, 1922

Appeal from Circuit Court, McCracken County.

Shell Harper was indicted for conspiring and confederating for the purpose of obtaining money by false pretenses. The court directed a verdict of acquittal, and the commonwealth appeals, and seeks certification of the law arising upon the facts of the case. Law certified.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

Reed &amp Burns, of Paducah, for appellee.

THOMAS J.

This indictment, duly returned in the McCracken circuit court accused the appellee, Shell Harper, and Charlie Walker of the offense of conspiring and confederating together for the purpose of obtaining money by false pretenses, statements, representations, and tokens, with the intent to defraud the firm of Stahl and Hayden, who were dealers in leaf tobacco in the city of Paducah, Ky. and that in pursuance of the conspiracy they did obtain from the firm $65.25 by representing to them that certain tobacco, which Walker delivered pursuant to a prior contract, whereby he sold his tobacco to the firm for 14 cents per pound, was a part of his crop of tobacco which the firm had previously purchased at the price stated, when in truth and in fact the tobacco so delivered and represented to be a part of Walker's crop did not belong to him, nor was it a part of his tobacco, but, on the contrary, it belonged to his codefendant, the appellee, Shell Harper, who had procured Walker to deliver it to the firm, and procured him to make the representations and to thereby obtain for his tobacco an increase of 6 or 7 cents per pound more than it was worth, and which sum in the aggregate totaled the $65.25 above stated. The court overruled the demurrer filed by appellee to the indictment, and he entered a plea of not guilty. At the conclusion of the evidence introduced by the commonwealth the court upon his motion directed the jury to acquit him, which was accordingly done, and this appeal by the commonwealth seeks a certification of the law arising upon the facts as disclosed by the witnesses for the commonwealth. The court filed no opinion, and the orders of record do not disclose the reason for the court's action. However, it evidently concluded that the indictment was sufficient, with which we agree, since the demurrer filed to it was overruled, and the court, therefore, must have concluded that the testimony was insufficient to support the allegations of the indictment, which, in substance, is the argument made in brief of counsel for appellee.

The testimony introduced showed without contradiction these facts: That some time prior to the delivery of the load of tobacco in question Walker sold his crop to Stahl & Hayden for the price of 14 cents for the good tobacco, and 2 cents for the lugs; that after the contract was made Harper, who was a neighbor of Walker, learned of it, and went to the latter's father, and offered to pay him if he would procure his son to allow appellee's tobacco to be delivered as a part of the son's crop under his contract that shortly thereafter appellee did enter into an agreement with his codefendant to that effect, and agreed to pay him 2 cents per pound for all the tobacco that he would deliver under his contract; that pursuant to the agreement Harper loaded his tobacco on his wagon, and hauled it to Paducah and delivered the wagon and the load to his codefendant at an agreed place, and the latter carried it to the warehouse of Stahl & Hayden, where he delivered it and stated at the time to the receiving agent of the firm that it was a part of his crop; that appellee's son accompanied him when the tobacco was delivered, but appellee, upon his own suggestion, declined to do so; that Walker received a check from the firm for the amount of tobacco so delivered at his contract price, which he cashed and later in the day met appellee and paid to him the amount of the check, less the agreed 2 cents per pound commission; that after the...