Frazer v. State

49 So. 245 | Ala. | 1909

DOWDELL, C. J.

Tbe appellant was tried and convicted in tbe Pike county law court on an affidavit sworn out by Ben Parks, tbe prosecutor, charging bim with a violation of section 6845 of tbe Criminal Code of 1907. Parks, tbe prosecutor, was examined as a witness on behalf of tbe state.' He testified on bis cross-examination “that about tbe 16th day of September, 1907, be went to Pronto, in Pike county, after tbe defendant, and carried bim back to bis (witness) place; that tbe reason be did this was that be was on defendant’s bond for his appearance at tbe circuit court in Pike county on a charge of assault with intent to murder; that be went on defendant’s bond about February 1, 1907.” Defendant’s counsel then sought to show by tbe witness, and also by tbe records of tbe circuit court, that at tbe spring-term of 1907 of said circuit court tbe grand jury of said county bad acted on tbe charge against tbe defendant of assault with intent to murder, and failed to indict tbe defendant, and returned “no bill” as to said .charge. Tbe trial court, on tbe objection of tbe solicitor, refused to allow this- evidence, to which action of tbe court tbe defendant duly excepted.

In this ruling tbe trial court committed reversible error. The contract under which tbe defendant was prosecuted was executed on the 24th day of September, 1907. This was shortly after the prosecutor went to Pronto, and got tbe defendant, and carried bim back to his (prosecutor’s) place, by reason, as he claims, -of being surety on tbe defendant’s appearance bond. Tbe gist of the present prosecution is tbe defendant’s entering into tbe contract of hire with fraudulent intent and purpose, and thereby obtaining money which, with like fraudulent intent, be failed and refused to return, after refusal to carry out said contract. If the defendant entered into said contract under any sort of compulsion on tbe part of the prosecutor, ■ then this would be a circumstance to go to tbe jury, and be considered by them in determining whether tbe defendant entered into tbe contract with fraudulent intent. On this theory tbe evidence offered was competent to go to tbe jury. Moreover, it was competent to contradict tbe testimony of tbe prosecutor as to bis reasons for going to Pronto after the defendant, since be, as surety on defendant’s appearance bond to answer for the charge of assault with intent to murder, was no longer bound as such surety after tbe grand jury bad acted on tbe case and returned no bill.

There was no error committed in admitting in evidence tbe written contract entered into by defendant. Nor was there any error in tbe court’s reading to tbe jury the section of tbe Criminal Code under which the defendant was prosecuted, nor in explaining to tbe jury that tbe word “writing” in tbe code included printing.

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

Reversed and remanded.

Simpson, Denson, and Mayfield, JJ., concur.