Com. v. Lacey

• Decision Date: 28 April 1914
• Citation: 165 S.W. 971,158 Ky. 584
• Parties: COMMONWEALTH v. LACEY.
• Court: Kentucky Court of Appeals

165 S.W. 971

158 Ky. 584

COMMONWEALTH v. LACEY.

Court of Appeals of Kentucky.

April 28, 1914

Appeal from Circuit Court, Hickman County.

W. C Lacey was indicted for obtaining property by false pretenses and from a judgment on a directed verdict for defendant, the Commonwealth appeals. Affirmed.

James Garnett, Atty. Gen., and R. L. Smith, Commonwealth's Atty., of Clinton, for the Commonwealth.

Robbins & Robbins of Mayfield, and Joe W. Bennett, of Clinton, for appellee.

CARROLL J.

Under an indictment charging the appellee, Lacey, with obtaining from C. C. McAlister a note for $1,000 by falsely and fraudulently representing that he was the agent of the Tennessee Life Insurance Company, the parties went to trial before a jury. At the conclusion of the evidence for the commonwealth the trial judge directed a verdict for the defendant, and the commonwealth appeals for the purpose of having the law applicable to this class of cases determined by this court.

A general demurrer to the indictment was overruled, but in behalf of the appellee it is now insisted that the indictment was not sufficient, and therefore the court should have sustained the demurrer. The indictment was found under section 1208 of the Kentucky statutes, providing that "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"--and charged that: "W. C. Lacey did, by falsely and feloniously pretending and representing to C. C. McAlister that the represented the Tennessee Life Insurance Company, which was a corporation engaged in the life insurance business in the state of Tennessee by the laws of said state of Tennessee, and by so representing that said W. C. Lacey was the agent of the said Tennessee Life Insurance Company, to the said C. C. McAlister, obtain from the said C. C. McAlister a note for $1,000, signed by the said C. C. McAlister and made payable to the said W. C Lacey, and when in truth and in fact the said W. C. Lacey was not the agent of the said Tennessee Life Insurance Company, neither did he represent them in any respect, nor was he authorized to sell stock for said company by said company; and, by reason of defendant's false representations to the said C. C. McAlister that the said W. C. Lacey was the agent of the said Tennessee Life Insurance Company, and that he represented them and was authorized by said company to sell said stock, he did obtain from the said C. C. McAlister the said $1,000 note; said statements, when made by defendant to said C. C. McAlister, were false, and known by the defendant to be false, and the said C. C. McAlister would not have delivered said note to the said W. C. Lacey except for the fact that he believed said representations to be true; and said false representations were made by the defendant with the intent to commit a fraud upon C. C. McAlister."

We think this indictment stated an offense under that part of the statute providing that any person shall be guilty who by false pretense, with the intention to commit a fraud, obtains the signature of another to a writing the false making thereof would be forgery. Under this statute, if the defendant, by falsely representing himself to be the agent of the insurance company, and authorized by it to sell its stock, procured, with the intention to commit a fraud, the signature of McAlister to the note described in the indictment, he committed an offense against the statute. It was not necessary that the indictment should have charged that the representations that induced McAlister to execute and deliver the note were material, or that McAlister suffered, or might thereafter suffer, any loss or damage on account of signing the note. It is the mere act of obtaining by false pretense or statement, with the intention to commit a fraud, the signature of another to a writing, the false making whereof would be a forgery, that constitutes the offense, and it is not essential to a good indictment that it should do more than state the facts constituting the statutory offense with such certainty as to enable the defendant to know the nature of the offense charged against him and to negative by special averments, the matter as to which the alleged false pretense or statement was made. Com. v. Sanders, 98 Ky. 12, 32 S.W. 129, 17 Ky. Law Rep. 544; Com. v. Caldwell, 121 S.W. 480; Com. v. Nunnelly, 124 S.W. 313. It is not a light matter for one to falsely represent himself as the agent of a corporation or an individual when on the faith of such a representation he induces another party to execute to him a note or other writing. McAlister, for example, might have been entirely willing to deal with Lacey as the agent of the Tennessee Life Insurance Company, when he would not have been willing to deal with him as an individual. He might have been willing to execute a note to Lacey believing him to be acting in the capacity of an agent for this company when he would not have been willing to and would not have executed the note if he had known that Lacey was not the agent of the company, or authorized to sell its stock.

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