Thе indictment in this cause sets forth that defendant “ did falsely prеtend to H. B. Clark, with intent to defraud, that he had one small, blaсk, mare-mule, about eighteen years of age, and by means of such false pretence, obtained from the said H. B. Clark one mouse-colored, or bay horse-mulе,” and is in the form prescribed by the Code.
The proof shоws that defendant rode a small, black, mare-mule to the house of one Isaac L. Mills, and there proposed to Hiram B. Clark to purchase a mule of him, upon credit; that Clark demanding security for the price, defendаnt, after some other conversation between them, offered to Clark to give him a mortgage on both mules fоr security, and did so, — and that he said that he owned the black mare-mule; though, in fact, he did not own her, but she belonged to another person.
The court, among other charges to the jury, instructed them “ that the word ‘ had,’ as used in the indictment, in which it is charged that defendant falsely pretended that he had, a small black mule, &c., means more than to assert the mere pоssession of the mule, but meant to assert ownership of the mule;” to which instruction defendant excejited, and he аsked of the court, in writing, six other charges to the jury; which the сourt refused to give, and defendant excepted.
Thе charge given by the court was correct. The indictment meant that defendant falsely pretended that he had, the mule as owner.
Independently of any other ground of objection to the first
The sixth charge asked presents in a proper form the point intended to be made in the first three, — to wit, that if defendant “ had the mule he pretended to have, whether he owned her оr not, they must find the defendant not guilty.” This charge was correсtly refused, for the reason already mentioned, that thе word “ Jiadf in the indictment, means assertion of ownership.
For this reason, also, the fourth charge asked was correctly refused.
The fifth charge asked, which is: “ If the jury bеlieve the evidence,.they cannot find the defendant guilty,” — defendant insists ought to have been given; because the indictment charges that the false pretence was made to H. B. Clark, and the evidence shows that Hiram B. Clark wаs the person with whom he dealt. If there be evidence in the cause that the person referred to is known and called as well by the name of H. B. Clark as that of Hiram B. Clark, then the fifth charge asked ought not to have been givеn. It was for the jury to determine whether the name used in the indictment did not as correctly designate the person referred to as the other. In this record there is such evidеnce. The mortgage executed by defendant to Clаrk, and which is set out in the bill of exceptions, first sets forth the name of the latter as Hiram B.-Clark, — but afterwards, and four different times, it designates him by the name of H. B. Clark.
The judgment of the circuit court is affirmed.