Hope v. State, 59 So. 326

WALKER, P. J. —

The mortgage executed by the defendant was properly admitted in evidence against him, because it embodied a statement to the effect that the property embraced in it, which included “one sorrel horse, named Joe,” Avas then in his possession and belonged to him. It had a tendency to prove the making by the defendant of the representation or pretense which Avas charged by the indictment to have been falsely made by him to the person Avho was the mortgagee, with intent to injure or defraud. The reason here assigned to show the inadmissibility of this evidence did not exist in the case of Meek v. State, 117 Ala. 116, 23 South. 155, which is relied upon in this connection by the counsel for the appellant.

The court did not err in overruling the motion of the defendant to exclude the evidence offered by the state. The ground of the motion was that the charge in the indictment that the defendant obtained $100 from the person to Avbom the false pretense was alleged to have been made could not be sustained by evidence tending to show that he so obtained only $32.50. The statement in the indictment of the amount of money obtained was not descriptive of an essential ingredient of the offense charged. The charge made could be sustained by evidence of the obtaining, in the manner alleged, of a less amount of money than that averred. — Davis v. State, 3 Ala, App. 71, 57 South. 493; Martin v. Stat, 125 Ala. 64, 28 South. 92.

The conflict in the evidence was such that the defendant could not have been entitled to the general affirmative charge which was requested in his behalf.

The refusal to give the special written charges requested in behalf of the defendant was justifiable, because each of them involved the proposition that the defendant could not be convicted in the absence of an intent on his part to defraud. The criminal intent, which is made an ingredient of the offense charged, is one either “to injure or defraud.” — Code, § 6920. The intent, which was an element of the offense with which the defendant, in the case of O’Connor v. State, 30 Ala. 9, was charged, was one “to defraud another.” — Code of 1852, § 3142. The difference in- this respect between that statute and the present one makes it apparent that it does not follow that the defendant was' entitled to the special charges requested, because it was held in the case referred to that similar charges should have been given. The evidence in the present case was such as to afford support for an inference that the defendant had the intent “to injure” the person to whom the false pretense is alleged to have been made, by getting his money without the security on the faith of which it was advanced, though at the time he entertained the purpose to pay the debt, and so was without the intent “to defraud.” To withhold from a creditor a security for which he contracts is a deprivation of a legal right and an injury to him in the eye of the law, though there is no intent to defraud him of the amount so obtained.

Affirmed.

On Application for Rehearing.

In the argument submitted in support of the appellant’s application for a rehearing, the attention of the court is called to the ruling made in the case of Carlisle v. State, 76 Ala. 75, as to the effect, or rather the lack of effect, upon the meaning of the statute of the change made in the wording of it, which was mentioned in the concluding paragraph of the foregoing opinion. In that paragraph we expressed conclusions which ' cannot be reconciled with the ruling made in the Carlisle Case. The result of that decision was to preclude the idea that the change in the-language of the statute, which was referred to, had practically any effect upon its meaning. As the statute, as so changed, has been re-enacted by the Legislature with that construction fixed upon it, it must be given the meaning which was given to it in the opinion rendered in the Carlisle Case. On the authority of that ruling and of the ruling made in the case of O’Connor v. State, 80 Ala. 9, it must be held that the trial court was in error in refusing to give written charges requested by the defendant. It follows that the judgment of affirmance must be set aside, and in its stead a judgment of reversal be entered.

Application for rehearing granted.

Reversed and remanded.

Case Details

Case Name: Hope v. State

Court Name: Alabama Court of Appeals

Date Published: Apr 8, 1912

Citations: 59 So. 326; 5 Ala. App. 123; 1912 Ala. App. LEXIS 145

Court Abbreviation: Ala. Ct. App.