Lee v. Com.
| Decision Date | 19 June 1951 |
| Citation | 242 S.W.2d 984 |
| Parties | LEE v. COMMONWEALTH. |
| Court | United States State Supreme Court — District of Kentucky |
Redwine & Redwine, Winchester, for appellant.
A. E. Funk, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
WADDILL, Commissioner.
Appellant, Ernest Lee, was jointly indicted with Elbert Tharp and Hettie Chapman for the crime of obtaining money from another by false pretenses with intent to defraud. KRS 434.050. Upon separate trial he was found guilty of aiding and abetting Hettie Chapman to commit the offense, receiving a sentence of four years in the penitentiary.
Appellant seeks a reversal of his conviction, relying, chiefly, upon four grounds. They are: (1) the verdict is flagrantly against the evidence; (2) error in admitting incompetent and prejudicial evidence; (3) erroneous instruction given by the court; and (4) improper and prejudicial argument of the Commonwealth's Attorney.
A recitation of the pertinent facts is necessary to evaluate reasons assigned for reversal of the conviction.
On the night of May 23, 1950, Elbert Tharp, appellant and his nephew, Raymond Chapman, drove from Lexington to Nelson Hamilton's farm in Jessamine County, where Tharp had been previously employed, and stole four hams.
The next morning appellant suggested selling the stolen meat in Winchester. Tharp, appellant and his sister, Hettie Chapman, drove to Winchester, where appellant contacted Pleas Richardson in an effort to sell the meat.
Richardson testified that two boys and a lady came to his beer parlor; that appellant asked him if he wanted to buy a ham. Richardson stated that it was represented to him that the ham came from their farm; that after some discussion, he did not purchase the ham, but was later told by appellant that Tracy Wood had bought it.
Tracy Wood testified that Hettie Chapman and appellant came to his store with some hams, Hettie offering them for sale; that at Hettie's suggestion, appellant left to convey a message about the hams to Richardson. Wood stated that after Hettie represented that the meat was hers, he bought the hams; that appellant returned and said in their presence, 'The man across the street said, hell, no, if he couldn't get both of them he didn't was none.'
R. W. Patsell testified that he was in Tate's grocery when Hettie Chapman came and inquired as to whether Tate wanted to buy a country ham. He said that Tate declined, but that he bought a ham from Hettie and that they went to an automobile to get it; that appellant and another man were sitting in the car and offered to stick a knife in the ham to see if it was all right. Tate stated that it was represented to him by Hettie that the ham came from her farm.
This, in substance, is the principal part of the Commonwealth's testimony. Appellant did not testify, nor did he offer any evidence in his behalf.
In support of his first contention, appellant argues that there is no evidence showing that he intended to defraud Wood; no evidence that appellant made any false representation to Wood; no evidence that he received any money from the sale; and no evidence that appellant rendered material assistance to Hettie Chapman in perpetrating the fraud, or that the encouraged her in the commission of the crime.
The evidence does not support such deductions. It is evident that appellant knew that the hams were stolen; that he suggested to Tharp selling them in Winchester; that he accompanied his sister, Hettie, to Winchester for the purpose of selling the hams; that he contacted Richardson, telling him that the hams were raised on their farm; and that he helped Hettie take the hams to Wood's store, later returning to relate to Hettie a message about the hams from the grocer across the street. The conduct of appellant discloses to us that he was the instigator of the crime for which he was convicted.
Under such circumstances, where one of the defendants with the knowledge and concurrence of the others, makes the false representations charged, conviction of all is warranted. Finney v. Commonwealth, 190 Ky. 536, 227 S.W. 999.
Under the statute, (cited above) the gist of the offense is the fraud and deception of the perpetrator, his motives and the results--the fact that a person was deceived and defrauded. Frazier v. Commonwealth, 291 Ky. 467, 165 S.W.2d 33.
Where one intentionally creates a belief as to an existing fact which is false, and with the intent to defraud another of his property, and does so, it cannot matter whether the erroneous belief was induced by words or acts, or both. The mischief may be done as effectually by one method as by another. The mere fact that...
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