Com. v. Watson

• Decision Date: 05 January 1912
• Parties: COMMONWEALTH v. WATSON.
• Court: Kentucky Court of Appeals

142 S.W. 200

146 Ky. 83

COMMONWEALTH v. WATSON.

Court of Appeals of Kentucky.

January 5, 1912

Appeal from Circuit Court, Graves County.

Daize Watson was indicted for obtaining property by false statements, and the Commonwealth appeals from a judgment dismissing the prosecution. Reversed and remanded.

R. L Smith and James Breathitt, Atty. Gen., for the Commonwealth.

HOBSON C.J.

Section 1208, Kentucky Statutes (section 3474, Russell's St.) is 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, *** he shall be confined in the penitentiary not less than one nor more than five years." Daize Watson was indicted under the statute in the Graves circuit court; the charge being set out in the indictment in these words: "The said Daize Watson, in the said county of Graves, on the 20th day of March, 1911, and before the finding of this indictment, did feloniously, by false pretense and statements, obtain from Cecil Cobb, one horse of value, by falsely and fraudulently representing and stating to said Cecil Cobb that a horse which he owned and which he was trading to the said Cecil Cobb was sound in every respect and the said Cecil Cobb, believing and relying on said pretenses and statements as true, was thereby induced to trade to said Daize Watson his said horse, whereas, in truth and in fact, said pretense and statement that the horse of said Watson was sound in every respect was false and untrue, and said horse was afflicted with the bobbies, and was a bull-heaver, and said statements and pretenses were known by said Watson to be false and untrue when he made them, and he well knew when he stated and represented that said horse was sound in every respect that he was unsound and afflicted with the bobbies, and was a bull-heaver, and said false statements and pretenses were made with the felonious intent to defraud the said Cecil Cobb out of his horse, against the peace and dignity of the commonwealth of Kentucky." The circuit court sustained a general demurrer to the indictment and dismissed the prosecution. The commonwealth appeals.

In 2 Bishop's Criminal Law, § 429, subsec. 5, the learned author says: "A representation that a horse is sound, by one who knows it not to be, is, within the statute, indictable. It is a pretense of a fact, not mere opinion; and, though the vendor adds his warranty, the case is not otherwise."

In People v. Crissie, 4 Denio (N. Y.) 525, the defendant was indicted on the charge that he had falsely pretended that a drove of sheep offered for sale were free from disease, by means of which he obtained a certain sum of money in the sale of the sheep. It was held that this was a false pretense within the meaning of the statute which was similar to ours. In Watson v. People, 87 N.Y. 561, 41 Am.Rep. 397, the defendant was charged with falsely pretending that a horse was sound, kind, and true, when he knew this to be untrue, with intent to defraud. A conviction was affirmed.

The same conclusion was reached by the Supreme Court of Maine in State v. Stanley, 64 Me. 157. The court said: "The assertion of the soundness of his horse by the defendant is the assertion of a material fact. It is false. It was made to deceive and defraud. It accomplished its purpose. This much the demurrer admits. It is not readily perceived why this falsehood is not within the spirit, as well as the letter, of the statute."

The same conclusion was reached by the Supreme Court of North Carolina in State v. Sherrill, 95 N.C. 663. To the same effect are State v. Mangum, 116 N.C. 998, 21 S.E. 189: State v. Patty, 97 Iowa 373, 66 N.W. 727; Commonwealth v. Jackson, 132 Mass. 16; Parks v. State, 94 Ga. 601, 20 S.E. 430; Regina v. Kenrick, 5 Q. B. R. 49.

In Commonwealth v. Beckett, 119 Ky. 817, 84 S.W. 758, 27...