123 Ala. 50 | Ala. | 1898
There was no error in allowing the witness Brand to testify to the receipt of the postal card from Moore saying he had no money belonging to defendant. Standing alone the card would have been only the hearsay statement of Moore and as such inadmissible. But in connection with the other evidence tending to show that the defendant upon reading it virtually admitted its contents by saying that he had lied about having money in Moore’s hands, the card was clearly admissible as giving point and meaning to the admission. Admission of criminating facts by a defendant and likewise statements made to a defendant respecting his guilt and not denied by him, when the circumstances are such as to naturally call for a denial in response, are admissible in evidence, though such evidence should be received with caution. — Lawson & Swinney v. State, 20 Ala. 65.
The complaint did not charge as a fact that Moore was the county superintendent of education. The material misrepresentation charged to the defendant and upon which Brand could Avell have relied was that he had money in the hands of Moore. The designation of Moore as the county superintendent of education, whether treated as a statement of the pleading or of the defendant, was made merely as descriptive of the person. It was not necessary to show Moore’s continuance in office in order to make out the commission of the offense.
Charge 2 refused to the defendant should have been given. One precisely similar was held good in Bryant v. State, 116 Ala.446, and that charge was based upon and its correctness is sustained by the opinion in Newsom v. State, 107 Ala. 133.
Charge 4 is a literal copy of instructions held correct in Burton v. State, 107 Ala. 108, and in Brown v. State, 108 Ala. 18, but which was in the later case of Rogers v. State, 117 Ala. 9, condemned as being argumentative. We adhere to the opinion rendered in the last mentioned case and the contrary opinion expressed in
For tbe error in refusing charge 2 tbe judgment of tbe county court will be reversed and tbe cause remanded.
Reversed and remanded.
