Mitchell v. Commonwealth
| Decision Date | 13 March 1931 |
| Citation | 237 Ky. 849 |
| Parties | Mitchell v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
The indictment charged that the false statements were made in an affidavit in a fire investigation conducted by a named party, who was a representative of the department of fire prevention and rates. There was formally a department of fire prevention and rates under Ky. Stats. 1915, sec. 762b-1 et seq., but such statute was repealed by Acts 1916, c. 19, which act was later repealed by Acts 1920, c. 16. Ky. Stats., sec. 762b-1 vests in the auditor of public accounts all the authority, powers, duties, and privileges conferred by law upon the fire marshal and the superintendent of fire insurance rates, including investigation of fires. There was no allegation in the indictment that the person making the investigation was representing the auditor, or that he had been appointed or designated by the auditor to make the particular investigation, or any investigation.
2. Perjury. — Indictment charging false swearing in fire investigation must state facts sufficient to define, with accuracy, what was done in investigation and by whose authority.
3. Perjury. — False swearing is not punishable unless false oath was taken on subject on which accused could be legally sworn.
4. Perjury. — Indictment charging false swearing in fire investigation about matter not relevant to investigation does not charge public offense.
Appeal from Christian Circuit Court.
JOHN H. GILLIAM and C.H. BUSH for appellant.
J.W. CAMMACK, Attorney General, and SAMUEL B. KIRBY, JR., Assistant Attorney General, for appellee.
Reversing.
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...
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