Slaughter v. Com.

• Decision Date: 09 December 1927
• Citation: 222 Ky. 225,300 S.W. 619
• Parties: SLAUGHTER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

300 S.W. 619

222 Ky. 225

SLAUGHTER v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 9, 1927

Appeal from Circuit Court, Jefferson County, Criminal Branch Criminal Division.

John E Slaughter was convicted of unlawfully, feloniously, and falsely obtaining the signature of another to a deed by false pretenses, etc., and with intention to commit a fraud, and he appeals. Reversed, with directions.

Henry J. Tilford and Clem W. Huggins, both of Louisville, for appellant.

Frank E. Daugherty, Atty. Gen., and Burwell K. Marshall, of Louisville, for the Commonwealth.

THOMAS J.

The grand jury of Jefferson county returned an indictment against appellant and defendant below, John E. Slaughter, accusing him of the crime of unlawfully, feloniously and falsely obtaining the signature of Jessie Stewart to a deed (the false making whereof would be forgery), by false pretenses statements, and representations, and with the intention to commit a fraud, one of the offenses denounced by section 1208 of our present Statutes. At his trial thereunder he was convicted, and was punished by confinement in the penitentiary for a period of five years. His motion for a new trial was overruled, and he appeals, and urges through his counsel as grounds for reversal: (1) Error of the court in overruling the demurrer filed to the indictment; (2) error in overruling defendant's motion to acquit him, made at the close of the testimony introduced by the commonwealth and at the close of the whole testimony heard in the case; and (3) erroneous instructions.

Grounds (1) and (2) are bottomed upon the same contentions, and they will be disposed of together. In doing so it becomes necessary to make a brief statement of the facts averred in the indictment, and to which the commonwealth directed its proof. A substantial statement of them for the purposes of this opinion is: That in January, 1925, defendant was a real estate agent in the city of Louisville, and had been for a great number of years. Miss Jessie Stewart was then 70 years of age, and had taught in the public schools of Louisville for more than 25 years; but she had quit teaching at that time. During the years of her employment as teacher she had managed to save some of her earnings, and in 1917 she purchased from defendant a lot on Liberty street (then Green street), near to the junction of it and Thirteenth street, and upon which some four or five cottages occupied by colored people were located. Defendant and Miss Stewart were well acquainted, she having known him from his birth, and he having known her from his earliest recollection, and there was a friendly intimacy between their families, and which also existed between defendant and her. After the purchase of the Liberty street lot, defendant looked after the renting of it for its owner, but did not repair (nor does it appear that he was requested to do so) any of the cottages, except an occasional patching of their roofs. They became very much dilapidated, and required the expenditure of a large sum of money to restore them to modern and perfect conditions. None of them was equipped with plumbing or running water, and the water-closets were detached, outside, cheap inclosures, with open vaults, which the health department of the city finally demanded should be abated, and which demand was communicated to the defendant and his employees assisting him in conducting his real estate agency. On the date above mentioned defendant owned a modern two-story residence in that portion of the city known as the Highlands, and on January 16, 1925, a written agreement was entered into, by the terms of which Miss Stewart agreed to exchange her Liberty street property for defendant's residence in the Highlands, and in that contract defendant represented that the Highlands property was free from incumbrances.

The false pretenses averred in the indictment, with all other essential allegations to create the offense were (a) that the defendant falsely represented to Miss Stewart that the Liberty street property owned by her was not worth on the market exceeding the sum of $6,000; (b) that the city of Louisville had condemned it; and (c) that his Highlands property was free from incumbrances, and that, acting upon such representations and pretenses, all of which she believed, she was induced and procured to sign and execute a deed on January 28 following the date of the contract, whereby she conveyed her Liberty street property to defendant. The contention embodied in the two grounds now under consideration was and is that neither of the pretenses (a), (b), nor (c), if true, was sufficient in law to constitute the offense denounced by our statute, supra, and for that reason the demurrer filed thereto should have been sustained, but, having been overruled, then the court erred in overruling defendant's motion for an instruction directing his acquittal.

The general rule applied by all courts, and approved by all recognized and standard text-writers, is that the expression of a pure opinion by defendant in this character of prosecution, and especially upon a matter about which there might be differences of opinion, is not the assertion of a present or past fact, which is an essential element of the offense created by the statute. There are some modifications of that general rule, which are applied under certain peculiar facts, but which do not appear in this case, either in the charge contained in the indictment or the evidence heard on the trial. Authorities supporting the general rule as just stated are Roberson's New Kentucky Criminal Law and Procedure (2d Ed.) p. 1184, § 960; 25 C.J. 595, par. 19, and cases from 22 states contained in note 33 to the text; 11 R.C.L. 832, par. 10, and cases recited in note 13 to the text; and Bishop's New Criminal Law, vol. 2, p. 246, § 429, wherein the general principle is thus stated:

"It being the common understanding that opinions expressed by persons negotiating in trade are not mutually regarded as facts, on which the listening party is due to base his action, one's false statement as to what is his opinion is not a statutory false pretense. The pretense must be of a fact, as distinguished from the state of the speaker's mind."

That learned author, we repeat, as well as others referred to, recognizes modifications of the general rule denying the expression of an erroneous opinion the efficacy of a false pretense, for which the one expressing it would be subject to punishment under the statute; but, as stated, the modifying or qualifying facts do not appear in this case, and defendant's contention as to pretense (a) seems to be well founded, and the court erred in holding to the contrary.

Pretense (b) was wholly unsustained by the evidence, as averred in the indictment and as testified to by Miss Stewart in her testimony in chief, but which she qualified to some extent upon cross-examination. It is argued that defendant represented to her that the city of Louisville had succeeded in some sort of condemnation proceedings in appropriating the property on Liberty street; but it clearly appears that, if defendant used the word "condemnation" or the word "condemned" in his negotiations with Miss Stewart, he did so with no intention of creating the impression that such an appropriation of her property had ever been attempted, much less successfully so, by the city of Louisville or any other person. He was quite positive in his testimony that he used no such expressions in his negotiations with the prosecuting witness; but, if he did, they were equally applicable to and expressive of the fact that the health authorities of the city had condemned the insanitary water-closets on the property under consideration, and that under such condemnation a large expenditure would have to be incurred in order to remedy the complained-of conditions. If, as counsel for the prosecution insists, defendant intended to and did represent and pretend to Miss Stewart that her property had been appropriated by some sort of condemnation proceedings, then under another principle of law, applicable to this character of prosecution, it would, to say the least of it, be extremely doubtful if the pretense would be such a one as would be punishable under the statute, since the representation and pretense of a fact that was necessarily within the knowledge of the alleged victim will not support a prosecution. See the work of Mr. Bishop, supra, volume 2, § 432. Necessarily, if such condemnation proceedings were instituted, Miss Stewart under the law was compelled to be notified thereof; else the proceedings would be void. But, however that may be, we are convinced that the testimony in the case failed to establish, or tend to establish, this alleged pretense, and the court erred in holding otherwise.

In support of counsel's contention regarding pretense (c), they rely upon this court's opinion rendered in the case of Commonwealth v. Grady, 13 Bush, 285, 26 Am.Rep. 192, and which, it must be admitted, is directly in point and fully supports the contention. In that case defendant represented to his victim that the house and lot that the former sold to the latter was "free from lien or mortgage to any one," when the fact was that at that time there was a mortgage upon it to secure a debt, and which was of record. One O'Bannon was the alleged victim in that case, and in holding the facts insufficient to support the prosecution the opinion said:

"O'Bannon could have refused to execute and deliver his notes to appellee, or even to pay him the $125 in money, until he stepped to the clerk's office and ascertained from the records of the Henry county court whether the title to the house and lot was such as represented. * * * Here O'Bannon had the means of

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