Frazier v. Commonwealth
| Decision Date | 06 October 1942 |
| Parties | FRAZIER v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Leslie County; Roy Helm, Judge.
Virgil Frazier was convicted of obtaining money under false pretenses, and he appeals.
Affirmed.
J. H Asher, of Hyden, for appellant.
Hubert Meredith, Atty. Gen., and Wm. F. Neill, Asst. Atty. Gen., for appellee.
STANLEY Commissioner.
For selling seven cases of sawdust for $280, upon the representation that the boxes contained cigarettes, the appellant, Virgil Frazier, has been sentenced to the penitentiary for two years upon conviction of the crime of obtaining money under false pretenses. Kentucky Revised Statutes, 434.050. He is dissatisfied with the judgment.
The appellant, who formerly lived in Clay County and was well known to Roy Ponder, manager of a store in Hyden, came to him in the afternoon of January 29, 1941, stated that he was closing out his store in Covington and had seven cases of cigarettes to sell at a bargain. The next day Frazier delivered the cases and collected the cash in a side room of the store where the boxes were placed. They bore brands or markings of cigarettes. A taxi driver and another man had come with Frazier, but they remained on the sidewalk and took no part in the transaction. Ponder's wife and daughter corroborated him in important particulars, but they did not see the cases delivered or the money passed. J. M. Elam and his son, who also have a store in Hyden, testified that on the same afternoon Frazier had offered to sell them seven cases of cigarettes for about half price, but they declined to buy them. Another witness went with Frazier and Tom Cannon to Charlie McQueen's house in Clay County to get the cases. When they were opened Ponder found only two cartons of cigarettes, worth about $2.50, in the seven boxes of sawdust. There is also evidence of incriminating admissions by the defendant.
The appellant testified that he had gone to Clay County from Cincinnati, where he operated a poolroom, in response to a telegram from home and had brought with him a friend, Herbert Odear, and a comparative stranger, Tom Cannon. Cannon had asked him to stop in Newport where they picked up the seven cases which he said contained his clothes. Cannon had left the boxes at McQueen's house and the defendant as a guest had ridden with him and Odear in a taxicab to Hyden, where Cannon sold the cases to Ponder. Ponder called attention to the jail across the street, and said he didn't want them unloaded at his store, so they all drove to the country where Cannon delivered the boxes to Ponder on the roadside and collected the money. The defendant testified he had nothing to do with the transaction and did not know the cases contained sawdust. He denied having tried to sell cigarettes to the other merchants, but is silent as to his visit to Ponder and offer to sell them to him on the afternoon of the 29th. Lucian Allen, the taxicab driver, corroborated the defendant as to the place of delivery being on a roadside. He testified that Frazier, who had ridden out there with Ponder did nothing while the other men, including himself, were transferring the boxes to Ponder's automobile. Although the record shows there was no motion for a continuance of the trial by the defendant or any authority for doing so, the defendant's affidavit as to what Tom Cannon and Walter Dezarn would testify, if present, was read to the jury. By this Cannon admitted full responsibility and cleared Frazier of guilt. Dezarn corroborated the defendant as to Cannon having obtained the cases in Newport and of his ignorance of their contents.
The appellant says that this evidence is not sufficient to sustain his conviction....
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