Gardner v. State

58 So. 1001 | Ala. Ct. App. | 1912

PELHAM, J.

The defendant is indicted for-obtaining money by false pretenses in violation .of section 6920 of the Code of 1907. The indictment-was not subject to the demurrers interposed.. -It followed the Code form (No. 58, p. 670 of the Code), as nearly as-the facts would permit,-in the manner-of stating the act constituting the offense charged.- , - ...

The averment of intent to injure or defraud was alleged generally, without naming the particular person intended to be defrauded, as is authorized by section 7146 of the Code, and, the allegation of deception and injury being the very essence of the crime (Colly v. State, 55 Ala. 85; Chauncey v. State, 130 Ala. 71, 30 South. 403, 89 Am. St. Rep. 17), and the particular person upon whom the deception was practiced being named in the indictment, and the intent being averred generally, it could hardly be said that the allegation naming the person or persons from whom the money was obtained constitutes a main ingredient of the offense; but, even if such be the case, the indictment named the two persons from whom the money was obtained, and it makes no difference in an indictment charging this offense whether the individuals named from whom the money was obtained were associated as partners in business or what relationship existed between them.

•The allegation is that the money was obtained from these two named persons, and it Avould be sufficient to allege the ownership of the property, even did it constitute an ingredient of the offense, in any one or more of the partners or owners, whenever it belongs to more than one. — Code 1907, § 7147.

In this connection, counsel for appellant contend that the allegation in the indictment that the money ($1,000) was obtained from N. B. Crawford and W. H. Crawford is an averment of joint ownership that is not supported . by the proof, and that the defendant therefore is entitled to the gen eral charge because of a variance. The state’s witness N. B. Crawford testified that the defendant obtained $1,000 from him and his brother, W. H. Crawford, and executed a mortgage payable to W. H. Crawford and N. B. Crawford jointly, purporting to secure the amount of money obtained. This witness stated, also, that he paid the money to the defendant, and that half of the money belonged to him, and half belonged to W. EL Crawford. This testimony is amply sufficient to sustain the. allegation in the indictment that the money was “obtained from N. B. Crawford and W. EL Crawford.”

The action of the court in refusing to allow the defendant to show by the witness N. B. Crawford on cross-examination that the defendant owned other lands was free from error. The fact of the defendant’s ownership of other land Avas not relevant to the issues.

The range and extent of cross-examination is a matter resting largely in the discretion of the trial court (Noblin v. State, 100 Ala. 13, 14 South. 767; Ry. Co. v. Brantley, 132 Ala. 655, 32 South. 300), and this discretion is not shoAvn to have been abused by the court in sustaining any of the state’s objections made to questions propounded to this witness on cross-examination.

The admisión of the defendant, testified to by the witness Farmer, to the effect that the defendant had stated to him at Panama City that no patent had issued on the land which he had mortgaged to the Crawfords, was prima facie voluntary, made under circumstances showing it to be a voluntary statement of the defendant, and no preliminary proof is necessary where it appears circumstantially that the admission is made voluntarily.—Braham v. State, 143 Ala. 28, 38 South. 919; Stevens v. State, 138 Ala. 71, 35 South. 122; Whatley v. State, 144 Ala. 68, 39 South. 1014.

The admission was relevant, and tended to support the allegations of false pretenses made in the indictment, and was not inadmissible, as contended by counsel, because the corpus delicti had not been proven, for the witness N. B. Crawford had previously testified to the facts making complete proof of the corpus delicti. This witness, had testified, without objection,' before the admission: was allowed, to the false pretense made by .the-defendant, to have consisted in representing to-the witness, that a patent had issued from the government on the land, and- that by such representation the-defendant had obtained the thousand dollars from N. B. a-nd.W. H. Crawford, and that subsequent to the representation made by the defendant and the payment of ■the money to the defendant the witness Crawford had .found out from -the Land Office that no patent had issued from the government Land Office on the land in question. ■ • ■ - . - • •

What the defendant did after the commission of the offense was not relevant, and testimony of his subsequent actions :or conduct- was not admissible, even in mitigation of the offense, and the- court properly refused - to. allow the defendant to mate proof of what efforts he afterwards made to perfect title to the land, or whether "he- was prevented from doing so by an injunction.—Hurst v. State, 1 Ala. App. 235, 56 South. 18; Mangrall v. State, 1 Ala. App. 189, 55 South. 446; Carlisle v. State, 77 Ala. 71; Meek v. State, 117 Ala. 116, 23 South. 155.

■ It is not necessary to a conviction under an indictment charging-false pretenses that all of the pretenses .averred must be proven. If those proven are intended and calculated to deceive and defraud, and on the strength of any one of them the property or money is obtained, this is sufficient.—Beasley v. State, 59 Ala. 20; Woods v. State, 133 Ala. 166, 31 South. 984; Leath v. State, 132 Ala. 26, 31 South. 108.

--•Charge A,- refused by the- court; gives undue prominence to -parts' of the evidence and predicates an ac■quittal upon the "defendant’s having a reasonable expectation of repaying the money obtained, when the offense máy be complete without regard to such an expectation upon the part of the defendant.

Charge B is argumentative. The correct propositions contained in this charge are covered by the numerous given charges.

Charge C is involved'and calculated to mislead.' No obligation or necessity rests upon the person defrauded to make an investigation of the statement made to him by the defendant.

Charge D is more than covered by given charge No. 11.

Charges E and F are patently bad. Proof of a partnership between the Crawfords was not necessary to sustain a conviction.

Prom what we have said in a discussion of the evidence and the .principles involved as constituting the offense it wall be seen that there was no error in refusing the general charge requested by the defendant, and the case will be affirmed.

Affirmed.