Allen v. State

On Application for Behearing.

The judgment finding the plaintiff *405 in error guilty of obtaining money under false pretenses was affirmed on February 23, 1926. Tbe money wbicb he was convicted of obtaining under false pretenses was in bis possession as agent of tbe owner. It is now urged that tbe trial court erred in charging tbe jury as follows:

“It is not a matter of concern as to whether she paid him tbe money out of her own pocket, or whether it was money wbicb be bad collected and held for her as her agent.”

As the statute provides for punishing whoever “obtains” anything of value by false and fraudulent pretenses, it is insisted that tbe conviction could not be bad for obtaining money of wbicb tbe accused already bad the possession, and, no doubt, as a general proposition, that is true; but the rule can have no application where tbe delivery of tbe money is not necessary in order to obtain dominion over it. If tbe defendant bad possession of tbe money as agent, and obtained the title to it by false and fraudulent pretenses, that would be a sufficient obtaining of tbe property within tbe meaning of the statute. Tbe principle was directly decided in Commonwealth v. Schwartz, 92 Ky., 510, 18 S. W., 775, 36 Am. St. Rep., 609. I quote tbe third proposition of tbe syllabus:

“Where one who is in possession of money belonging to another obtains tbe title by false pretenses, be is guilty of the statutory offense of obtaining money by false pretenses. In such a case it is not necessary to constitute tbe offense that tbe possession should have been obtained by false pretenses. ’ ’

In that case a banker bad the money in his pos *406 session, which he had collected for the owner, and he thereafter obtained the title to it by false and fraudulent pretenses. He was held to be rightly convicted; the court deciding that the general rule requiring that both the property and the title should be obtained by false pretenses only applies where it takes delivery of the possession to complete the transfer of the title. See, also, People v. Cooke, 6 Parker, Cr. R. (N. Y.), 31. The rule is clearly stated in 11 Ruling Case Law, 842, and also in 25 Corpus Juris, 604.

Rehearing denied.