106 Ala. 109 | Ala. | 1894
— The indictment is in the form prescribed by the Code, and must be deemed sufficient, whatever may have been the essential constituents, at common law, of an indictment for false pretenses. The statute is general, that “where an intent to injure or defraud is necessary to constitute the offense, it issufficient to allege an intent to injure or defraud generally, without naming the particular person, corporation, or government intended to be injured or defrauded. ” — Code, § 4380. The form of indictment prescribed corresponds to the statute. There is a general allegation of che intent to defraud, not designating who was intended to be defrauded, Under this general averment, it was competent for the State to prove the particular person or persons, who were intended to be defrauded. — Williams v. State, 61 Ala. 33; Mack v. State, 63 Ala. 138. There wrns not a hurtful variance between the allegations of the indictment and the evidence. The statute, (Code, § 4381), authorizes the ownership of property in reference to which an offense is committed to be alleged to be in any one of the several partners or owners to whom it may belong. Though it was alleged the false pretense was made to William M. Wilson, it was competent to prove that it was made to him as a member of the partnership of William M. Wilson & Brother, to obtain the moneys of the partnership, and that thereby the moneys of the partnership were obtained. There is no ground on which the general instruction of acquittal could have been requested, other than the supposed variance in the ownership of the moneys, or in the person to whom the pretense was made, and who was intended to be defrauded. The variance did not exist in a legal sense, and the instruction was properly refused.
The judgment must be affirmed.
