Dunbar v. State

94 So. 224 | Miss. | 1922

Sykes, P. J.,

delivered the opinion of the court.

The appellant was convicted in the circuit court of obtaining money by false pretenses from one Albert Minor. The indictment and prosecution is based upon section 1166, Code of 1906 (Hemingway’s Code, section 893).

The gist of the indictment is that the defendant falsely and feloniously pretended to Albert Minor that he had found a pocketbook containing several hundred dollars; that, owing to the fact that the banks were closed and he was unable to get the bills changed, he requested and prevailed upon Minor to let him have seventy-five dollars until the nest morning, when he would get the bills changed and divide the money with Minor; that in truth and in fact he did not find any pocketbook with money in it; and that all of this was a sham and a fraud practiced upon Minor in order to obtain his seventy-five dollars.

It is unnecessary to set out in detail all of the averments of the indictment; neither is it necessary to notice all of the assignments of error, as the .case will be reversed and the appellant discharged because the testimony in the case* fails to show the crime charged in the indictment.

Albert Minor, the party alleged to have been defrauded, was the principal witness for the state. His testimony is absoluteley foolish and unintelligible. It is to the effect that, while he was talking to the defendant, another man across the street picked up a pocketbook, and came to where they were talking; that he claimed there were only three dollars in the book; that the three of them had some talk about it, and subsequently went to a bank, where Minor had on deposit some money. ■ Minor then drew seventy-five dollars from the bank, and these three men went to his house, when Minor for some unknown reason turned over the seventy-five dollars, not to this defendant, but to the other party. As to why he gave this man the seventy-five dollars is not shown in this testimony. He does not testify that either one of these men made any false representations to him which caused him to turn over the money to the third party.

The able assistant attorney-general who briefed the case on behalf of the state has correctly stated the effect of this testimony as follows:

“The testimony of Minor, the injured negro, as shown by the stenographer’s notes in this case, is about the most senseless testimony I have ever read. If the grand jury had evidence before it to support the 'allegations of the indictment, it was not produced on the trial of the case in the court below, to my way of thinking.”

Since the testimony does not sustain the allegations of the indictment, and in fact does not show the commission of the crime therein charged, the case must be reversed, and the appellant discharged. N

Reversed, and appellant discharged.