Commonwealth v. Grady
| Decision Date | 11 September 1877 |
| Citation | 76 Ky. 285 |
| Parties | Commonwealth v. Grady. |
| Court | Kentucky Court of Appeals |
APPEAL FROM HENRY CRIMINAL COURT.
THOS E. MOSS, ATTORNEY-GENERAL, FOR APPELLANT.
" The offense consists in obtaining the money, and not in the means used to obtain it." The representation that he owned the property unencumbered was an existing fact if true but it was false, and the pretense by which the money was obtained. (Commonwealth v. Van Tuyl, 1 Met. 3, 4; Commonwealth v. Haughey, 3 Met. 223-5.)
CARROLL & BARBOUR FOR APPELLEE.
A representation, though false, is not within the statute unless calculated to deceive persons of ordinary prudence and discretion. (2 Wharton's Criminal Law, secs. 2129, 2131; Commonwealth v. Haughey, 3 Met. 224-5.)
This is an indictment charging the appellee with having obtained the money and property of Presley O'Bannon by the false pretenses of fraudulently representing to O'Bannon that he was the owner of a house and lot in Owen's addition to the town of Eminence, and that the house and lot so owned were free from lien or mortgage to any one.
By these misrepresentations it is charged that appellee obtained from O'Bannon $125 in money and some promissory notes for the house and lot; and that it turned out on investigation there was a recorded mortgage on the property, which had been executed by appellee to Lotty Kelso.
The indictment fails to state the amount of the mortgage lien of Mrs. Kelso, for if it was merely nominal the appellee may have made the representations charged with no intention to defraud O'Bannon, but with the intention of removing the encumbrance with a part of the money received from him. But we concur with the opinion of the lower court, that the indictment was insufficient for several reasons.
In the case of the Commonwealth v. Haughey (3 Met. 223) it was charged that Haughey obtained credit on a note he owed R R. Jones, upon the false and fraudulent pretense and representation that a large quantity of tobacco which Jones then purchased would average in quality with a sample which Haughey then and there exhibited to said Jones.
This court affirmed the judgment of the lower court dismissing the indictment, and say that a common caution on the part of Jones would have protected him from any injury; he could without trouble, have retained his note till the tobacco was delivered; and if, upon an offer to deliver it by...
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