Mitchell v. Com.
| Decision Date | 13 March 1931 |
| Citation | 36 S.W.2d 649,237 Ky. 849 |
| Parties | MITCHELL v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Christian County.
C. O Mitchell was convicted of false swearing, and he appeals.
Reversed and remanded, with directions.
John H Gilliam, of Bowling Green, and C. H. Bush, of Hopkinsville for appellant.
J. W. Cammack, Atty Gen., and Samuel B. Kirby, Jr., Asst. Atty Gen., for the Commonwealth.
Appellant was convicted on an indictment charging him with the offense of false swearing. He was the owner of a farm in Christian county, and the house and some of the outbuildings burned under circumstances seemingly suspicious. He was insured. A. E. Scott, claiming to be a special agent for the department of fire prevention and rates, accompanied by E. H. Black, a private detective employed by the National Board of Fire Underwriters, went to see appellant, and they took with them Mr. Harton, the insurance agent of Hopkinsville through whom the insurance had been obtained. The appellant was interrogated by Mr. Scott and Mr. Black, and he made certain statements which it is claimed were reduced to writing in his presence by Mr. Black. Whether he signed this writing at the time and was sworn to its correctness is not clear from the testimony of Black, Scott, and Harton. They informed him that they would take the writing to the office of Harton in Hopkinsville, where it would be copied on a typewriter and a copy made for him, and that he could appear at that office and read the typewritten copy, sign it, and swear to it, and take the copy made for him. This he did not do. But within a few days Black, Scott, and Harton took the typewritten copy and proceeded to find appellant out in the country, where they claimed the affidavit was read to him, corrections made, and that he signed it and was sworn to it by Harton, who was a notary public.
In the affidavit was a statement to the effect that he purchased the farm where the fire occurred from M. D. Grubbs, and that he paid to Grubbs $800 in cash, assumed the payment of a note and mortgage against the farm for $600, and transferred to him a note for $500 executed to appellant by a man named Mudd, and a note for $1,250 executed to him by a man named Strickner.
The indictment charged that he swore falsely when he stated, in the affidavit, that he transferred the $500 note and the $1,250 executed to him by the parties mentioned to Grubbs, and he was convicted on the charge by the verdict of a jury.
His defense was that he did not know that any such statement was in the affidavit. His side of the matter as detailed by him was to the effect that Black and Scott represented themselves as adjusters who had come to settle his loss and that he went into details at their request, giving the history of his life for a few years previous to his loss, and that, in the course of his narration, he told them of having purchased a farm at Shakertown, a part of which he thereafter sold to Mudd and a part to Strickner, and explained some of the details of that transaction, but did not say that either of them had given him a note, or that he had transferred such a note to Grubbs. He also denied that he swore to the affidavit.
The record has so much that is irrelevant and immaterial that it is necessary to cull out of the mass of the whole that which is material and important. We have done so. We shall state what we find in the record requiring our consideration.
What has been said about the condition of the record is not intended as a criticism of the special judge who tried the case, because the record shows that he was careful in his efforts to protect all of the rights of the commonwealth and the defendant, and the immaterial matter in the record was forced upon him the same as it has been forced upon us. The attorney who has briefed the case in this court did not represent appellant on his trial, and the attorney who did represent him on the trial did so in a manner that protected all of his rights. Neither of them are responsible for the condition of the record. There are three questions that require consideration, if the consideration of all of them is made necessary to a proper determination of the questions involved on this appeal:
(1) A demurrer was interposed to the indictment which was overruled.
(2) The authority of Mr. Scott claiming to be a representative of the department of fire prevention and rates to inquire into the matters mentioned in the affidavit, and whether the statement in the affidavit for which appellant was indicted was something about which he was required to be sworn, or about which he could legally be sworn, under the circumstances made to appear in the record.
(3) Whether the statement in the affidavit that he turned over to Grubbs the note executed by Mudd and the note executed by Strickner, when in fact he did not turn these notes over, was false within the meaning of the law, when in fact he turned over two other notes for substantially the same amount.
These three points will be disposed of in order. The...
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State v. Crowder
... ... This is a question for the court to decide and not the jury. Partin v. Commonwealth, 154 Ky. 701, 159 S.W. 542; Mitchell v. Commonwealth, 237 Ky. 849, 36 S.W.2d 649; 70 C.J.S. Perjury § 15; Clayton v. United States, 4 Cir., 284 F. 537; Travis v. United States, ... ...
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Mitchell v. Commonwealth
... ... Facts must be stated in the descriptive part of the indictment which are sufficient to define, with accuracy, what was done and by whose authority. Com. v. Fitzpatrick, County Judge, 204 Ky. 485, 264 S.W. 1105, 1106. The mere statement that Scott was a representative of a department under a name set up by the auditor was not sufficient. There should have been the averment in the indictment that he was the representative of the auditor, and that he ... ...
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Whitaker v. Com.
... ... It is urged that as the indictment did not aver Ward's death occurred in Pulaski County, or that the whiskey was sold there, it was bad on demurrer, citing Mitchell v. Commonwealth, 237 Ky. 849, 36 S.W.2d 649; Daniels v. Commonwealth, 300 Ky. 541, 189 S.W.2d 849 ... The indictment in the Mitchell case did not aver that the fire marshal had authority to investigate the matter in which it alleged Mitchell made a false statement under oath. In ... ...
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Holland v. Com.
... ... 779, 111 S.W. 348 (1908), and KRS 69.210. In the performance of that duty he was authorized to conduct an investigation to gather evidence. The subject on which Holland was interrogated was one under investigation and concerning '* * * which he could be legally sworn * * *.' Cf. Mitchell v. Commonwealth, 237 Ky. 849, 36 S.W.2d 649 (1931); Whitaker v. Commonwealth, Ky., 367 S.W.2d 831 (1963); KRS 432.170 ... Holland argues that 'in order to sustain a conviction for false swearing, the proof must clearly show that the accused not only knowingly and wilfully testified ... ...