Beasley v. State

59 Ala. 20 | Ala. | 1877

STONE, J.

— "We find no error in this record. There are not two false pretences proved. The testimony is that the same pretence was twice repeated on different days, and that on such pretence the defendant obtained merchandise on each of the days. This is but one transaction, and not a case for election. — 2 Bish. Cr. law § 356.

Neither is there any material variance between the charge in the indictment and in the proof. The charge is that he falsely pretended that he had two bales of cotton. The proof was that he said he had'“two bales of cotton out, and in a house at home, and one in the field.” It might be true that he had the one bale in the field, and did not have the two bales “out and in a house.” In such case, the pretence as to the two bales would be alone false. It is not material to aver all the pretences made, or to prove all that is averred, if those charged and proved are intended and calculated to deceive and defraud, and on the strength of them, or any one of them, the valuable commodity or thing is obtained. — 2 Bish. Cr. law § 347.

This case is unlike that of O’Connor v. The State, (30 Ala. 9). In that case a single pretence was charged, to-wit: “that he had in Macon, Georgia, the sum of seven thousand dollars.” A witness swore that the representation made by the prisoner was “that he had seven dollars less than seven thousand in the hands of a friend at Macon, Georgia.” There was a single representation, made of a single, inseparable fact, and there was proof of a single representation, and they were variant, according to the testimony of this witness. In this case a single pretence is charged and averred to be false, namely, that he had two bales of cotton. The proof was that he made a double and separable representation, namely, that he had two bales of cotton out and in a house, and one in the field. The falsity and fraudulent purpose, if proved, of either of these pretences would make that feature of the charge. The proof showed a representation of two separable facts, either one of which might constitute that element of the offence. One might be false and one true. The falsity of every pretence made is not always necessary to a conviction. If it were, every malefactor could escape conviction by blending some truth with his false pretences. It is enough if a material part of the pretence be false, that it be made with intent to defraud, and that it induces the person sought to be wronged to part with his money, or other valuable thing, on the strength of such representation. In this case the testimony tends to show there was a large part of a bale in the field, and that may be the reason why that part of the pretence was not charged to be false. Whether a material representation was falsely made, as of a fact; whether it was made with intent to defraud; whether in consequence of such representation, and relying on it, the owner was induced to part with the alleged thing of value, are all inquiries for the jury, under proper instructions, on the solution of which the conviction or acquittal of the accused depends. These being affirmatively proved, a conviction should follow, irrespective of other representations made, whether true or false, unless those other representations were the moving inducement to part with the valuable thing; in which case they should be charged and proved.

If the goods obtained be of value less than twenty-five dollars, this would only reduce the offence to a misdemeanor, and would not justify an acquittal. — Code of 1876, §§ 4370, 4356-7. Besides, there does not appear to have been any testimony tending to show the goods obtained were less in value than $33, and the verdict of the jury ascertained the same value. This charge, as asked, appears to have been abstract.

Affirmed.