Cook v. State

50 So. 319 | Ala. | 1909

DENSON, J.

Even were the motion to strike certain portions of the indictment meritorious, yet the action of the court in overruling the same could not be reviewed on this appeal, for the reason that it is shown only by the bill of exceptions. No mention is made of the motion in the judgment entry. — Gaston v. Marengo Improvement Company, 139 Ala. 465, 36 South. 738; Crawley’s Case, 146 Ala. 145, 41 South. 175.

Assuming that the court erred in allowing John TTa.11ford to testify that the defendant executed the mortgage, yet the court is satisfied that the ruling worked no injury to the defendant, as the witness immediately produced the mortgage, which was self-proving, and it was offered in evidence; and, considering that the indictment avers that the mortgage was executed by the defendant, it was competent, relevant, and legal testimony. — Meek’s Case, 117 Ala. 117, 23 South. 155; Wilkerson’s Case, 140 Ala. 155, 36 South 1004.

The indictment charges that the defendant “did false* ly pretend to John I-Iallford, with intent to defraud, that he owned in his own right 118 acres of land in section 33, township 1, range 25.” (Italics are the court’s.) Hallford testified as follows: “The defendant at the time of the representation did not describe the land by subdivisions, nor by section, nor by range; but he probably mentioned what township it was in.” The point was made in the court below, and is urged herein that there was a variance between the description of the pretense in the indictment and the proof thereof. It may be that the pretense was described more minutely in the indictment than was essential. However, only one pretense is alleged, and the words of particularity in respect to it are a part of the indictment, and cannot be regarded as surplusage. — 19 Cyc. 423, 438; Cowan’s Case, 41 Tex. Cr. 617, 56 S. W. 751; O’Connor’s Case, 30 Ala. 9; Beasley’s Case, 59 Ala. 20; Meek’s Case, 117 Ala. 23 South. 155. It is manifest, from these considerations and authorities, that the state failed to prove the pretense as averred; and the court erred in refusing the general affirmative charge requested by the defendant.

The defendant concedes in brief that charge 3 was properly refused. — Scott’s Case, 105 Ala. 59, 16 South. 925, 53 Am. St. Rep. 100.

The defendant might have “thought” that Wilson had agreed for him to mortgage the land, and at the same time the jury might have found that defendant falsely pretended, with intent to defraud, that the land was free from encumbrance — that there was no mortgage upon it. Consequently the court committed no error in refusing charge 5.

Charge 6, in its hypothesis, “and if he in fact honestly thought that there was no encumbrance on it” (the ■land), is abstract, and for this reason, if for no other, was properly refused.

For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.