McDowell v. Com.

• Decision Date: 17 December 1909
• Citation: 123 S.W. 313,136 Ky. 8
• Parties: McDOWELL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

123 S.W. 313

136 Ky. 8

McDOWELL v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 17, 1909

Appeal from Circuit Court, Mercer County.

"To be officially reported."

P. L McDowell was convicted of false pretenses, and he appeals. Affirmed.

C. E Rankin, for appellant.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

SETTLE J.

The appellant was convicted, and his punishment fixed at five years' confinement in the penitentiary, under an indictment charging him with the crime of obtaining by false pretense and statements the signature of one Sarah Harris to a writing, the false making of which would be forgery, with the felonious intent to commit a fraud and obtain from her property of value. Following the conviction, motions in arrest of judgment and for a new trial were overruled. The grounds urged in support of the motion in arrest of judgment were that the indictment did not state facts sufficient to constitute a public offense under section 1208, Ky. St. (Russell's St. § 3474), and that the court should have sustained the demurrer entered to the indictment. The grounds filed in support of the motion for a new trial were: (1) That the court erred in refusing to peremptorily instruct the jury to find the appellant not guilty; (2) in instructing the jury.

The statute (section 1208) under which the conviction was had is as follows: "If any person by any false pretense, statement or token, with intention to commit a fraud, obtain from another money, property or other thing which may be the subject of larceny, or if he obtain by any false pretense, statement or token, with like intention, the signature of another to a writing, the false making whereof would be forgery, he shall be confined in the penitentiary not less than one, nor more than five years."

Such parts of the indictment as we deem it necessary to copy in the opinion read as follows: "The said P. L. McDowell, in the county and state aforesaid, on the ___ day of September, 1909, and before the finding of the indictment, did unlawfully, willfully, and feloniously, by falsely pretending and representing to Sarah Harris that he was doing business for the government (meaning the government of the United States of America), that he was drawing $50 a month from the said government, that as such representative of the said government he needed a house for headquarters, and a housekeeper for same, and that he would pay her as said housekeeper $2 a week, for the government; that he had $625, which he would pay her, and, the said Sarah Harris relying upon the said statement as true, he obtained from her her signature to a deed of conveyance, whereby she conveyed to him a house and lot which then and there belonged to her, with intention to commit a fraud, he knowing at the time that he was not doing business for the said government, that he was not drawing $50 a month from the government, that he did not need a house as a representative of the government, for headquarters, or a housekeeper for same, that he would not pay her $2 per week for same as a representative of the government, and that he did not have $625 with which to pay her. In fact and in truth he was not then and there doing business for said government. He was not drawing $50 per month from the government. He did not need a house as a representative of the government for headquarters, or a housekeeper for same. He would not pay her $2 a week as representative of the government, and he did not have $625 with which to pay her. Against the peace and dignity of the commonwealth of Kentucky."

It is contended for appellant that the indictment does not state a public offense because the alleged false representations whereby appellant obtained of Sarah Harris the deed to her house and lot were not as to pretended past occurrences or existing facts, but based upon a promise having reference to an undertaking on his part for the future payment to her of money. In passing upon this contention, we must look to the indictment as a whole, in doing which we find that it clearly contains (1) false statements as to several pretended existing facts, and (2) not less than two false promises. The false pretense, statements, or representations are: (1) That appellant was doing business for the government; (2) that he was drawing $50 per month from the government; (3) that as a representative of the government he needed a house (i. e., her house) for headquarters, and a housekeeper for same; (4) that he then had $625. Manifestly, these were all statements of pretended existing facts charged in the indictment to have been falsely made by appellant to obtain of the woman the deed to her property; it being also charged therein that he knew the statements to be false when made, that they were relied on by the woman in parting with the deed, and further charged, in substance, that they induced its delivery to her. Coupled with these false statements and representations as to existing facts were the following false promises: (1) That appellant would pay her (Sarah Harris) as his housekeeper $2 per week, for the government; (2) that he had $625 which he would pay her.

While it must be conceded to be the law that a mere false promise to do something resting upon an event to happen in the future is not within the statute denouncing false pretenses, yet it is equally true that a promise of future performance, when coupled with a false statement as to a past or existing fact or facts, which induces another to rely upon the false promise, will, in connection with the false statement as to the existing fact or facts, constitute a "false pretense" in the meaning of the statute, and conviction thereon may be had. As said in Commonwealth v. Ferguson, 121 S.W. 967: "It is not important in what the false statement consists, so that it relates to some material past or existing facts, and is calculated to, and does, deceive." Bishop's New Criminal Law, §§ 433-436; 2 Wharton's Crim. Law, § 767; Commonwealth v. Grady, 13 Bush, 285, 26 Am.Rep. 192; Commonwealth v. Haughey, 3 Metc. 223; Commonwealth v. Beckett, 119 Ky. 817, 84 S.W. 758, 27 Ky. Law Rep. 265, 68 L.R.A. 638, 115 Am.St.Rep. 285. Further light on the question under consideration may be obtained from the following statement of the law found in 19 Cyc. 396: "Promise Combined with representation of fact--While the crime is not committed by a mere false promise without a false statement of fact, a false statement of fact may become effective only by being coupled with a false promise. When this is the case the statement of fact and the promise may be considered as together constituting the false pretense, and a conviction may follow, or if the statement of fact and the promise can be separated, and the prosecutor relied in part on the former, the promise may be disregarded and defendant be convicted on the statement of fact. The earlier cases held that if a warranty was added to a false pretense the offense was not committed; but, a warranty being in effect a promise to indemnify, its addition to the false pretense ought to have no more effect in excusing defendant than the addition of any other promise, and this view is taken by the latter cases, which hold that if the prosecutor relied on the pretense, and not on the warranty, the case is within the statute."

We also find a similar statement of the law in 12 Am. & Eng. Ency. of Law (2d Ed.) 812: "Where a false representation of an existing or past fact, calculated to induce the confidence which led the prosecutor to part with his property, is accompanied by, or blended with, a promise to do something in the future, this is a sufficient false pretense, although the promise, as well as the false statement of fact, operated upon the mind of the prosecutor in inducing him to part with his property." The doctrine under consideration is thus stated in Roberson's Kentucky Criminal Law & Procedure, § 471, as follows: "It must be kept in view, however that, when false statements relate to existing facts, they will support an indictment, though the accused promised to do certain things in the future with the money, or declared an intention as a future event." Yet further and more controlling authority is furnished by the case of Commonwealth v....