227 So. 2d 134 | Ala. Crim. App. | 1969
This is an appeal from a conviction of obtaining property by false pretenses. Appellant was sentenced to ten years in the State penitentiary.
The evidence showed that Robert Young owned and operated Dixie Furniture Company in Foley, Alabama, and that appellant "purchased" a lamp and clock from Young. Young's undisputed testimony showed that appellant wrote a check on the Farmers and Merchants Bank of Foley for $85.75 made payable to Dixie Furniture Company for the above items; that appellant represented to Young that he had a bank account with the above mentioned bank with sufficient funds to cover the check; and that Young was later informed by the bank that appellant did not have an account. The check was returned stamped, "no account."
Appellant argues that there was a material variance between the averments in the indictment and the proof since the evidence showed the check was made payable to Dixie Furniture Company and the indictment alleged ownership of the property in Young. This argument is without merit. In Clonts v. State,
See Gardner v. State,
Appellant further contends there was error when he was not permitted to show that he returned the property to Young. The property was not returned until after appellant was in custody. This contention is also without merit. In Meek v. State,
"If the offense charged was committed at all, it was committed at the time the goods were obtained. If they were obtained by means of the false pretense alleged, with the intent at the time to defraud, the offense was complete, and, *138 though the defendant may have afterwards repented, and paid for the goods, [or returned the goods] even on the very day due, he was none the less guilty by reason thereof; and eo converso, if, when he obtained the goods, he had no intent to defraud, or had not made the alleged false pretense which induced the party to part with the goods, he was not guilty at all, whether he afterwards paid for them or not, and without regard to whether he afterwards formed a fraudulent intent not to pay for them. Carlisle v. State,
77 Ala. 71 ."
See also Cook v. State,
The judgment in this cause is due to be and the same is hereby
Affirmed.