Smith v. Com.

• Decision Date: 12 January 1911
• Citation: 133 S.W. 228,141 Ky. 534
• Parties: SMITH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

133 S.W. 228

141 Ky. 534

SMITH v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 12, 1911

Appeal from Circuit Court, Christian County.

M. M Smith was convicted of false pretenses, and he appeals. Reversed, and new trial ordered.

C. H Bush, for appellant.

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

CARROLL J.

The appellant, Smith, under an indictment charging him with the crime of obtaining money under false pretenses, committed as follows, to wit: "That said Smith did in the county and state aforesaid, on the 22d day of September, 1909, and before the finding of this indictment, willfully and feloniously say and represent to J. P. Thompson that he had purchased 750 sticks of tobacco from G. W. Blankenship, and said tobacco was then his property and then in his possession, and, relying upon said statements as true and believing in the truth of same, the said Thompson advanced said Smith upon said tobacco thirty-five dollars in lawful money of the United States, which he accepted, and for which he had made said statements, when in truth and in fact he had not purchased 750 sticks of tobacco from said Blankenship, and did not have the same, or any tobacco in his possession bought of G. W. Blankenship at that time, and when said statements were false and untrue, and were known to said Smith to be false and untrue at the time he made them as aforesaid"--was convicted, and his punishment fixed at confinement in the state penitentiary for one year.

The indictment was found under section 1208 of the Kentucky Statutes (section 3474, Russell's St.), reading: "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." It is earnestly insisted that the indictment is fatally defective, and the court erred in failing to sustain a general demurrer to it. Its sufficiency is assailed upon the ground that it does not in apt terms charge that Thompson relied upon and was induced to furnish the money to Smith upon the faith of his representations as to the ownership of the tobacco, or aver that but for said representations he would not have advanced the money. It has been frequently held by courts and announced by writers on criminal law, in considering the sufficiency of indictments under similar statutes to ours, that the indictment should charge in terms or substance that the person defrauded relied upon the truth of the false statement, pretense, or token, and was induced thereby to part with his money or property. Barton v. People, 135 Ill. 405, 25 N.E. 776, 10 L. R. A. 302, 25 Am. St. Rep. 375; State v. Miller, 47 Or. 562, 85 P. 81, 6 L. R. A. (N. S.) 365; 2 Bishop on Criminal Law, §§ 415, 462; 2 Wharton's Criminal Law, § 1215; 19 Cyc. 429; 12 Am. & Eng. Ency. of Law, p. 819. But, although the indictment must show that the person defrauded was induced by the false representation or statement to part with his money, it is not essential that the indictment should in addition to this charge that except for such statements or representations the victim would not have parted with the money. If he was induced by the false statement to part with his money, it follows that he would not have done so except for the false statement, and so it seems unnecessary that both averments should be made. Each is merely stating the same proposition in different words, or in a different way; because, if a person would not have parted with his money unless he believed the statement to be true, neither would he have parted with it unless he was induced to do so by the statement. Nor is it a matter of first importance what particular words are used to show that the person defrauded relied upon the truth of the false statement or was induced thereby to part with his money. Any words that express this idea or from which it can be clearly inferred will be sufficient. In short, the purpose of an indictment is to inform the...