{
  "id": 1900477,
  "name": "Kirtley v. The State",
  "name_abbreviation": "Kirtley v. State",
  "decision_date": "1882-05",
  "docket_number": "",
  "first_page": "543",
  "last_page": "548",
  "citations": [
    {
      "type": "official",
      "cite": "38 Ark. 543"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 503,
    "char_count": 9415,
    "ocr_confidence": 0.453,
    "pagerank": {
      "raw": 6.149245902468313e-08,
      "percentile": 0.38224043177806893
    },
    "sha256": "2e3e9d5fa3bbd477544b7a0f4faab2506fbbdcf9f7eacd198e23ba402b23feba",
    "simhash": "1:b3565a739be8756f",
    "word_count": 1603
  },
  "last_updated": "2023-07-14T15:07:01.048516+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Kirtley v. The State."
    ],
    "opinions": [
      {
        "text": "Eaton, J.\nThe indictment charges that the appellant \u201cdid represent and personate one J. P. Allnutt, and in such assumed character, unlawfully and feloniously did receive from one B. H. Montgomery, the sum of twenty dollars.\u201d There were other allegations to make a good indictment.\nThere was evidence tending to show that, when the supposed crime was committed, he was in company with one Treadway; and upon the evidence there was a question of fact, as to whether the money had been obtained by falsely representing to Montgomery that appellant was Allnutt, or that Treadway was; or whether each of them had not, \u25a0during the transaction, represented that he, himself, was Allnutt.\nKirtley alone, however, was indicted upon the specific charge, in effect, that he had, himself, personated Allnutt, and assumed his character. This was descriptive of the offense, although the turpitude of the crime would be no less, in obtaining money by co-operating with Treadway, m representing that Treadway was Allnutt, and although the punishment would be the same; yet that would be a pretense wholly different from representing that the appellant was Allnutt.\nIn the indictment for the common law cheat, it was necessary that \u201c the several elements of the offense should be alleged, and with due particularity.\u201d\nThe symbol, or token, or means of the fraud, were required to be set forth ; \u201c how it was addressed to the person operated on, and how it accomplished a fraud, and what fraud.\u201d In indictments upon Statutes like this, it has been required that the facts be given as minutely and particularly as would be required by the common law rules. The particular pretences must be stated, that the defendant may certainly be advised as to what he must answer. (See Bishop on Orim. Pro., vol. 2, sec. 158, et seq.)\nThe court erred in refusing the instructions asked by defendant, to the effect that \u201c they must believe, from the evidence, that the defendant or his accomplice represented to Montgomery that he (defendant) was J. P. Allnutt, and that in such assumed character, he received the money from Montgomery, and that Montgomery delivered to him the monejr, believing that he was delivering it to J. P. Allnutt.\u201d\nAnd also in giving, on its own motion, the correlative instructions to the effect, that if they belieyed the defendant and Treadway were acting in concert, and either of them personated Allnutt, with the consent and concurrence of the other, they might find the defendant guilty.\nWhilst it may be truly said that each and every principal does the act in which he participates, yet the act done must be truly described, in all its essential elements, and proved as charged.\nWhat the verdict might have been, under correct instructions, is not for us to consider. The defendant was entitled to them ; that the jury, discarding all parts of the evidence tending to show that Treadway personated Allnutt, should confine their attention to all which tended, directly or indirectly, to show that the appellant did.\nReversed and remanded.",
        "type": "majority",
        "author": "Eaton, J."
      }
    ],
    "attorneys": [
      "O. B. Moore, Attorney-General, for appellee."
    ],
    "corrections": "",
    "head_matter": "Kirtley v. The State.\n4. Obtaining money by personating another: Personation must be proved as alleged.\nThe allegation of the false personation in an indictment for obtaining money by personating another, is descriptive of the offense, and must be proved as alleged; and proof that two were acting in concert and one of them personated the assumed party with the assent and concurrence of the other, will not sustain the charge of false personation by the latter.\nAPPEAL from Conway Circuit Court.\n.Hon. W. JD. Jacoway, Circuit Judge.\nSTATEMENT.\nThis was an indictment in the Conway Circuit Court, for obtaining money by falsely personating another, charging that \u201cThe-said James Kirtley on the seventh day of March, 1881, in the county and State aforesaid, unlawfully, \u25a0feloniously and falsely, did represent and personate J. P. Allnutt, and in such assumed character, unlawfully and feloniously did receive from one B, H. Montgomery the sum \u2022of twenty dollars,\u201d describing it, etc.\nUpon the trial W. P. Childres for the State, testified in substance, that on the evening of the seventh day of March, 1881, in Morrilton, Conway county, Arkansas, about an hour after dark, defendant and Britt Treadway came into Wells & Hawkins\u2019 store together, where witness was, and tried to boi\u2019row ten dollars from a Mr. Scott, to get Polk Davis out of the calaboose; and failing, they swore they would get him out, and started out. Witness and a young man followed to see what they would do, and found them around the corner of the house .talking. He heard one of them say: \u201cMontgomery has got plenty of money, and let\u2019s get it,\u201d and the other replied, \u201call right,\u201d and both started toward the calaboose, witness and the young man following some six or ten paces behind. When they arrived at the calaboose Treadway said, \u201cMontgomery, how are-you getting on?\u201d Montgomery replied, \u201cPolk, bad enough.\u201d Treadway said, \u201cgive ten dollars more and I\u2019ll turn you out.\u201d Montgomery, cursing, said, \u201cI gave you ten dollars awhile ago to turn me out and you went off and left me in here.\u201d Treadway then caught hold of the bare-of the door and shook them violently, and in an angry tone-said : \u201cDry up immediately, or I\u2019ll come in and chain you down, flat of your back.\u201d This seemed to frighten Montgomery, who replied: \u201cOh! no, Mr. Allnutt, don\u2019t do that; I\u2019m sober now, and want to be out of here.\u201d Tread-way then said: \u201c Give us ten dollars more and I\u2019ll turn you out. I chai\u2019ged you ten dollars for your first release, and for your second will charge you twenty dollars.\u201d' Witness then asked defendant if Treadway had any of Montgomery\u2019s money. He said, \u201cyes, he has ten dollars ; I had it in my possession not five minutes ago.\u201d Witness then told Treadway that there was no law for robbing a man, if he was a prisoner, and he was fixing himself,, perhaps, for a term in the penitentiary. At this he handed to Montgomery, through the calaboose window, what appeared to be a bill, saying: \u201cHere, Montgomery, is your money.\u201d Defendant then placed his hands on witness\u2019' shoulder, and said: \u201cHold on, Mister; that man\u2019s .got plenty of money, and we want it to release Davis.\u201d Witness-stepped back and defendant then stepped up to the window, and said : \u201c Montgomery, if you want to get out, give me-twenty dollars and I\u2019ll release you. If not, I am going to bed, and will leave you here till morning, if not for a week.\u201d Montgomery replied: \u201cOh! no, Polk; don\u2019t do-that. I\u2019ll give you twenty dollars if you will pledge yourself to turn me over my horse, so I can leave town.\u201d Defendant-replied : \u201c Hand me twenty dollars, and I\u2019ll turn you out and deliver up your horse immediately.\u201d Montgomery handed him a twenty dollar bill (witness describing it), and as defendant turned off with it, witness took hold of his arm and told him he \u2018 \u2018 could not rob that man in that way, if he was a prisoner;\u201d and held his arm until he returned the money to Montgomery. Defendant then got on his horse, which was hitched near by, and rode off. Witness reported to Allnutt what had occurred, and he went to the calaboose and turned Montgomery out. J. P. Allnutt is called \u201cPolk Allnutt.\u201d\nFillmore Cleveland, for the State: \u201cHeard Britt Treadway talking to Montgomery, at the calaboose, about some money, wanting him to give to defendant twenty dollars, to get him, Montgomery, out of prison ; and Montgomery was addressing Treadway as \u201c Mr. Allnutt;\u201d and Mr. Childress made Treadway hand back to Montgomery-ten dollars he had taken from him. Treadway then stepped off and defendant went to the window and told Montgomery to give him twenty dollars, and he would turn him out. Montgomery spoke to him as \u201c Mr. Allnut,\u201d and handed to him a twenty dollar bill, that looked green. Did not see the kind or denomination of the bill. Defendant, on receiving the bill, said, \u201c here is the officer,\u201d and handed the bill to Treadway, who refused to take it; and Childress caught hold of defendant, and he returned the bill to Montgomery, and then got on his horse and rode off.\u201d\nJ. P. Allnutt, for State: \u201cWas town marshal of Morrilton; had put Montgomery in the calaboose, the day spoken of, for being drunk and boisterous. When he got sober took him before the mayor and he was fined, and when released he got drunk and noisy, and witness put him in the calaboose again and kept him there until informed by Childress, that night, of the conduct of Treadway and the defendant.\nThe defendant introduced no evidence.\nThe instructions passed on by the court sufficiently appear in the opinion. The defendant was found guilty, and his punishment fixed at one year in the penitentiary; and after motion for new trial overruled, he filed his bill of exceptions, and obtained an appeal from one of the judges of this court.\nO. B. Moore, Attorney-General, for appellee.\nThe indictment is good. See. 1375, Gantt\u2019s Big. Treadways. State, 37 Arle., 443. The instructions fairly present the law of the case. There was no error in permitting the State to prove that Allnutt was the town marshal. The object of defendant in personating, was to induce Montgomery to believe that, as marshal, he would release him.\nThe instructions asked for appellant are, some of them, misleading.\nThe 2nd and 3rd exclude the idea of defendant\u2019s guilt as an accomplice, or aider or abettor, or that he and Treadway could, jointly, commit the offense."
  },
  "file_name": "0543-01",
  "first_page_order": 541,
  "last_page_order": 546
}