Hennessy v. Com.

• Decision Date: 28 February 1889
• Citation: 88 Ky. 301,11 S.W. 13
• Parties: HENNESSY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

11 S.W. 13

88 Ky. 301

HENNESSY v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 28, 1889

Appeal from circuit court, Jefferson county; W. L. JACKSON, Judge.

John Hennessy appeals from a conviction for obtaining money under false pretenses.

A. J. Speckert, for appellant.

P. W. Hardin, for the Commonwealth.

BENNETT, J.

The appellant was indicted, tried, and convicted of the crime of obtaining $15 in money from Bettie Cook by false pretenses. The manner of obtaining said money was as follows: That Barbara Yutzi, mother of Bettie Cook, had instructed him to get $15 from said Bettie for the purpose of buying offal at the pork-house in the city of Louisville; that upon said representation said Bettie let him have the money, which representation was false, etc. It was developed on the trial that Mrs. Bettie Cook was a married woman, and had no separate estate. Therefore it was contended, as her husband was the owner of the $15 by virtue of the marital relation, the variance between the allegations in the indictment and the proof was fatal. Section 128, Crim. Code, provides: "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." Here the indictment describes specifically the property obtained by the false pretense, and that it was not the property of the accused. Therefore whether or not it belonged to Mrs. Cook or her husband, it having been obtained from her by false pretenses, is wholly immaterial. The judgment is affirmed.