Hayes v. Com.

• Decision Date: 12 January 1917
• Citation: 190 S.W. 700,173 Ky. 188
• Parties: HAYES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

190 S.W. 700

173 Ky. 188

HAYES v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 12, 1917

Appeal from Circuit Court, Mason County.

Fred Hayes was convicted of obtaining money by false pretenses his motion for a new trial was overruled, and he appeals. Affirmed.

Allan D. Cole and H. W. Cole, both of Maysville, for appellant.

M. M Logan, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

HURT J.

The appellant, Fred Hayes, was indicted by the grand jury of the Mason circuit court and charged with the crime of obtaining money by false pretenses. A trial resulted in his conviction and a judgment by the court that he was guilty of the crime charged. His motion for a new trial was overruled, and upon appeal from the judgment to this court he insists that the judgment ought to be reversed, because, as he contends, the court erred to the prejudice of his substantial rights by overruling his demurrer to the sufficiency of the indictment by overruling his motion to direct a verdict in his behalf; by misinstructing the jury; and by overruling his motion in arrest of the judgment.

1. The indictment substantially charges that the appellant, in Mason county, and before the finding of the indictment, unlawfully and feloniously, and with the intent to defraud Ida Francis, falsely represented to her that he was the agent of and authorized to collect moneys for the Haucke Motor Company, from which she and her minor son, Bascom Francis, had purchased a bicycle, and for which they owed a part of the purchase price; that unless she made an immediate payment upon the price of the bicycle to him, as agent aforesaid, the company would take the bicycle from her and her son, and that by means of such false statements to her he obtained from her the sum of $2.50; that appellant knew when he made the representations that they were false and untrue; that he was not, in fact, the agent for the Haucke Motor Company, and was not authorized to collect for it, and made the statements for the fraudulent purpose and intent of deceiving and defrauding Ida Francis; that she believed the false representations made by him to be true, and was deceived and defrauded thereby and induced thereby to pay appellant the sum of $2.50, which she would not have done but for the fact that she believed his representations to be true.

(a) The first objection made to the indictment is that it is defective, in that it does not describe with sufficient particularity the property alleged to have been obtained by the false pretenses. The property is thus described: "The sum of $2.50." To make an indictment for obtaining property by false pretenses sufficient upon demurrer, it is necessary to describe the property obtained with the same particularity and certainty as is necessary to describe the property alleged to be stolen in an indictment for larceny. It is likewise true that the property alleged to have been obtained in an indictment for obtaining property by false pretenses must be such as is the subject of larceny. Section 137, Criminal Code, provides as follows:

"The words used in an indictment must be construed according to their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning."

When a dollar mark precedes a number stated in figures, it means that sum of money in dollars and cents, as indicated by the figures, and it means the kind of money which is in use in the state of Kentucky. Indeed, we do not know of any other meaning which could be attributed to it or gotten out of it. Such meaning is the usual and only one for a dollar mark and figures following. Section 122, subsec. 2, Criminal Code, provides that the indictment shall contain--

"a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case."

It is impossible to see how a person of common understanding would fail to understand, if it should be indicted for obtaining "the sum of $2.50," by false pretenses, that he was accused of obtaining $2.50 in lawful money of this country. By the terms of section 135, Criminal Code, when one is indicted for larceny of money, it is sufficient to charge the larceny of it, "without specifying the coin, number, denomination or kind thereof."

(b) Another objection urged against the indictment is that it does not give the name of the person injured or defrauded. The indictment, however, specifically alleges that Ida Francis was the person upon whom the fraud alleged was perpetrated. It is, however, insisted that the indictment fails to charge that Ida Francis was the owner of the money which was obtained from her by fraudulent pretenses, and for that reason the indictment is insufficient. Truly the indictment does not specifically charge, in words, that she was the owner of the money, but charges that by false pretenses a fraud was consummated by obtaining from her the money. Section 128, Criminal Code, provides that:

"If an offense involve the commission of, or an attempt to commit an injury to person or property, or the taking of property, and be described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured or attempted to be injured, or as to the owner of the property taken or injured or attempted to be injured, is not material."

Under this section of the Code, if an act is sufficiently identified by the indictment, that a party is put upon notice of the accusation against him in such manner as enables him to meet the...