Day v. Com.

• Decision Date: 22 May 1908
• Citation: 110 S.W. 417
• Parties: DAY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

110 S.W. 417

DAY v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 22, 1908

Appeal from Circuit Court, Perry County.

"Not to be officially reported."

Walter R. Day was convicted of obtaining money under false pretenses, and appeals. Reversed and remanded.

Hazelrigg Chenault & Hazelrigg, E. E. Hogg, John C. Eversole, and Eversole & Eversole, for appellant.

James Breathitt, Atty. Gen., and Chas. H. Morris, for the Commonwealth.

LASSING J.

The appellant, Walter R. Day, was indicted for obtaining money under false pretense. Upon a plea of "not guilty" he was tried, convicted, and his punishment fixed at confinement in the penitentiary for one year. Conceiving that the punishment is not merited, and that there has been a miscarriage of justice in his case, he prosecutes this appeal, and, as grounds for reversal, relies upon the following: First, that there was not sufficient evidence to authorize the court to instruct on the question of the ownership of timber in Perry county; second, that the indictment not having alleged the inability of the plaintiff to produce the note, and the note itself not having been satisfactorily accounted for, it was error to admit secondary evidence of its contents, and no instruction should have been submitted on that charge in the indictment; third, the plaintiff failed to prove that the Hazard Bank was incorporated. No proof whatever was submitted on that point. The facts as developed in this case are, briefly stated, as follows: Some time in the early part of March, 1904, the Hazard Deposit Bank of Hazard, Ky. received in the regular course of mail the following letter:

"Frozen Creek, Kentucky, March 1, 1904.

"Cashier Hazard Deposit Bank, Hazard, Ky.--Dear sir: We have bought some timber in your county and want to begin operations about May 1st and we want to begin operations about May 1st and we want to borrow $3,000 from you for six months, and want to keep our a/c with you while operating. Will give you as security Floyd Day and any one else you desire and will pay you 8% on said loan. Please let us hear from you at once and oblige.

"Yours truly, N. B. Day & Co."

This letter was written upon a letter head, upon which there appeared the following:

"All agreements are contingent upon strikes, accidents, or other causes beyond our control. "Floyd Day. Walter R. Day. Carl Day.

"General Store Office of N. B. Day & Co.

"White Oak, Cross Ties, Crossing Plank,

"Switch Ties,

"Street Railroad Ties,

"Full-Dressed Staves for Ale and Beer."

Upon receipt of this letter the cashier of the bank forwarded to Day & Co. a blank note. A few days thereafter the note was returned to the bank filled out and signed as follows:

"$3120.00. Hazard, Ky. March 15, 1904."

"Six months after date we promise to pay to the order of the Hazard Bank. Hazard, Ky. three thousand one hundred and twenty dollars, value received, negotiable and payable at the office of the Hazard Bank, Hazard, Ky. And we hereby pledge first as security therefor, and second as security for any other debt or liability we may now or hereafter owe or be under to said bank. The parties hereto agree to pay 7 per cent. from maturity of this note until paid, and they hereby authorize said bank to sell and transfer for cash any securities pledged and mentioned herein without notice, should this note not be paid at maturity, and apply proceeds to its payment, with interest and all costs, and hereby severally waive notice of nonpayment, protest, and notice of protest, and sureties consent that time of payment may be extended without notice thereof. N. B. Day & Co.

"Walter R. Day.

"Carl Day.

Floyd Day."

This note was accepted by the bank, discounted, and the proceeds, amounting to $3,000, placed to the credit of N. B. Day & Co., and was drawn out of the bank on five checks, four of which were signed "N. B. Day & Co., by Walter R. Day," and the other was signed "N. B. Day & Co." Floyd Day denied that he signed the note or authorized any one to sign it for him, and denied that he was a member of the firm of N. B. Day & Co.

The officers of the bank testified that they relied upon the representation that was made to them by appellant in the letter above set out that Floyd Day would sign the note as surety, and when the note was returned to the bank with the name "Floyd Day" signed thereto they accepted it as his genuine signature. They also relied upon the statement in the letter that N. B. Day & Co. had bought timber in Perry county and were going to begin operations about May 1st. They further stated that they were led to believe by the letter head on which the letter was written that Floyd Day was a member of the firm of N. B. Day & Co.; that they had made investigation, and had failed to find that N. B. Day & Co., or Walter R. Day had bought or owned any timber in said county; that Floyd Day was known to be a man of considerable wealth for that community. For the defendant it was testified that Floyd Day had either signed the note in person, or had authorized Walter R. Day to sign for him, and, as evidence tending to support this latter proposition, they introduced the following letter:

"Frozen Creek, Ky. March 21, 1902."

"To Whom It may Concern:

"This is to certify that I have this day given to W. R. and Carl Day the right to use and sign my name in any way they may see fit in connection with any transaction connected with the business of the firm of N. B. Day & Co. Given under my hand this 21st day of March, 1902. Floyd Day."

The defense also introduced evidence tending to show that Floyd Day was a member of the firm of N. B. Day & Co.

Appellant testified: That he was a member of the firm of N. B. Day & Co. Floyd Day is his uncle. That for years the firm of N. B. Day & Co. used the name of Floyd Day as a business partner, and that Floyd Day had on several occasions indorsed for the firm. That Floyd Day lived about eight miles from him. That he was elected State Treasurer on the Republican ticket in 1899, and after the lost his office was sued in Franklin circuit court for some $30,000. That to evade the payment of this debt he placed all of his property in the hands of his uncle, Floyd Day, and left the state. That the firm of N. B. Day & Co. had originally been composed of Nathan B. Day and his two sons Walter R. and Carl Day. Nathan died in 1899, and Floyd Day qualified as his administrator. After the death of their father Walter R. and Carl Day carried on the business of N. B. Day & Co. for about two years, at which time Floyd Day, who had then practically settled up the business affairs of Nathan B. Day, permitted the use of his name in the firm of N. B. Day & Co., and executed the writing of date March 21, 1902, as above set out. Floyd Day denied signing the power of attorney bearing date of March 21, 1902, although several witnesses were introduced who testified that they were familiar with his handwriting, and that in their opinion he did sign it. A letter purporting to have been written by Floyd Day on August 31st to Walter R. Day, which is as follows:

"You will please send me a list of the staves unsold. You must get rid of them this month. Have you received any orders lately? Let me know just what you have, and I will try to get rid of them from this end of the line. Has the Clay City Lumber &amp Stave Company sent you any orders?

"P S. Inclosed...