Jones v. Commonwealth

463 S.W.2d 936, 1970 Ky. LEXIS 662
Court of Appeals of Kentucky·Decided October 23, 1970·Published·Cited by 1 cases

Opinion

STEINFELD, Judge.

Coleman Jones was found guilty of obtaining property by false pretenses, a crime denounced by KRS 434.050, and he was sentenced to serve one year in the state reformatory. He appeals, claiming that the trial court erred in not sustaining his motion for a directed verdict and in admitting, over his objection, incompetent evidence. We affirm.

Asserting that there has been a violation of RCA 1.210(a) 2 the Commonwealth urges us to disregard certain arguments advanced by appellant. That rule states that appellant’s brief shall contain:

“A ‘Statement of the Questions Presented’, which shall state in the clearest and briefest form, and separately number, each of the principal questions involved on the appeal. The Court will not consider, except for special cause, questions not so set forth.”

Appellant’s “Statement of Questions Presented” reads:

“Did the trial court commit reversible error in failing to order a directed verdict for the appellant upon motions made at the conclusion of Commonwealth’s evidence, and upon conclusion of all of the evidence, thereby prejudicing his substantial legal rights to a fair and impartial trial?
“Did the trial court commit reversible error in permitting the admission of incompetent and prejudicial evidence into the trial of this case, in clear violation of appellant’s substantial legal rights to a fair and impartial trial?”

“ * * * (W)e may not consider any error not set forth in appellant’s Statement of Questions Presented”. Cassinelli v. Begley, Ky., 433 S.W.2d 651 (1968) ; Travelers Indemnity Co. v. Patrick, Ky., 386 S.W.2d 256 (1964) and Snell v. Com., Ky., 420 S.W.2d 127 (1967). While we find the questions were not stated as clearly and [938]*938succinctly as we desire we hold there was sufficient compliance with the rule.

The indictment charged that in January 1967 Jones * * * obtained from Emit Long, Jr., * * * 5,000 shares of stock in Kentucky National Life Insurance Company * * * Jones contended that the evidence showed that he did not obtain the stock, therefore, the proof is at variance with the indictment which is fatal to the prosecution. On this basis he moved for a directed verdict.

Jones was President of Kentucky National Life Insurance Company. Sometime before the alleged crime was committed Jones sold to Long 5,000 shares of stock in that company. Long testified that in January 1967 Jones came to his home and they discussed a scheme whereby Long would exchange his Kentucky National stock for stock in Pyramid Corporation.1 He said that Jones represented that Robert Shaw, President of Pyramid, had agreed to pay $2.00 per share for the Pyramid stock and that this money would go into the treasury of a corporation being formed under the name of Professional Underwriters. In answer to another question Long said Jones stated that $2.00 per share was to be paid by Shaw for Kentucky National stock. Professional Underwriters was to operate an insurance agency. Jones and William E. Wells were to run the company and Long was to receive Professional Underwriters stock and to own no less than 25% of the outstanding stock at all times. Following that conversation Long endorsed his stock certificates in blank and delivered them to Jones. The shares were then exchanged for Pyramid stock. Long then traded that stock for shares in Professional Underwriters and received that stock. Professional Underwriters became insolvent and its stock worthless. Jones was associated in some way with Professional Underwriters until that connection was severed in January 1969.

Jones denied that he made such representations or arrangements. Shaw testified that he had not agreed to purchase the Pyramid National or Kentucky stock at $2.00 per share and of course he did not do so, however, he bought some stock at 85 ^ per share. Jones testified that he and Wells owned stock in Professional Underwriters, that the money realized from the sale of Pyramid stock “ * * * went to promoting the Professional Underwriters * * ” and that he “ * * * spent other money earned as a commission agent toward promotion of * * * ” it. He insisted that this money “ * * * was spent toward expenses for Professional Underwriters— expenses for myself and Mr. Wells, or anything involved in Professional Underwriters * * * because (they) were the owners of Professional Underwriters.”

The claim for dismissal was based on “ * * * the fact that the evidence that Jones never obtained Long’s * * * stock, as was alleged in the indictment” created a fatal variance between the indictment and the proof. We reject this contention, first because there was testimony that Long endorsed his stock in blank and delivered it to Jones, and secondly Jones obtained it for the benefit of Professional Underwriters, a corporation in which he was financially interested. To convict of obtaining property by false pretenses “ * * * the property need not be obtained by accused for himself, it being sufficient if, as a result of his false representations, it is delivered either for the benefit of the accused or for another’s benefit.” 35 C.J.S. False Pretenses § 25, p. 845. Also see Rand v. Com., 176 Ky. 343, 195 S.W. 802 (1917).

Appellant relies on Sturgill v. Com., Ky., 293 S.W.2d 730 (1956); Williams v. Com., 314 Ky. 33, 234 S.W.2d 148 (1950), and Lissenbee v. Com., 198 Ky. 639, 249 S.W. 782 (1923), to support his claim that “ * * * The allegations of the indictment did not identify the act for which appellant [939]*939was tried with sufficient certainty to make the prosecution herein a bar to another indictment against him by Long as to the Professional Underwriters transaction, or to put him upon notice of the offense for which he was tried.”

In Sturgill the defendant was charged in the indictment with theft of copper wire owned by one George Evans when in fact the wire was owned by Glo-Valley Coal Corporation of which George Evans was the principal stockholder. In Williams the indictment charged the theft of an overcoat and other articles of clothing from a corporation. The evidence showed that the overcoat did not belong to the corporation and that “ * * * the remaining evidence was insufficient to connect appellant with the theft of the one pair of shoes and two pairs of pants.” In Lissenbee the indictment charged that the property taken belonged to a Felix Turner whereas the proof showed that the owner of the property taken was Felix Napier, a different man. These three cases were reversed because a misdescription of property taken or a misdescription of the name of the injured party “ * * * does not put the defendant on notice of the offense for which he is being tried.” The indictment in the case now before us showed clearly that Jones was being charged with fraudulently obtaining from Long the 5,000 shares of the Kentucky National stock and that this occurred in January 1967. Further clarity is not required.

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Jones v. Commonwealth, 463 S.W.2d 936, 1970 Ky. LEXIS 662 (Ky. Ct. App. 1970).

463 S.W.2d 936 (Jones v. Commonwealth) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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