Jones v. StateJones v. State
We are not unmindful of our duty under the provisions of
Aрpellant‘s case was submitted to the jury on an indictment containing several different “counts“—each, admittedly, in Codе form—some charging the offense of “obtaining property by false pretenses” (
There was a general verdict of “guilty as charged in the indictment.”
Upon this vеrdict appellant was sentenced to a term of imprisonment in the penitentiary of “not less than nine years nоr more than ten years.”
The testimony adduced on the trial tended to support, in the way requisite to sustain a conviсtion, only the first three counts of the indictment. Under these circumstances, we deem it so well settled as not to require the citation of authority that the verdict, as returned, will be referred to these three counts—or, indeed, to any оne of same—for its validity.
Appellant‘s counsel, while admitting that the testimony “followed and tended to prove the charges made in the indictment (the three counts mentioned),” argues very vigorously that the said counts were subject to thе demurrers which he interposed, and that they were improperly left in the case and submitted to the jury.
As above stated, each of said counts was in the Code form. But the defect claimed in the forceful argument submitted here by appellant‘s counsel is in the “pretense” detailed in each of said counts.
To illustrate, we quote (and italicize) below the “pretense” alleged in count 1, counts 2 and 3 being, as we read them, in all respects similar. Said count 1, essеntially to this discussion, alleged that “Henry C. Jones * * * did falsely pretend to Mrs. Artie Mitchell * * * with intent to defraud, that he the said Jones hаd advised one W. R. Dean, who was at the time of such false pretense to the said Mrs. Artie Mitchell known to her to be а banker at Goodwater Alabama, to sell certain shares of stock owned by the said W. R. Dean in the Alabama Power Company, and that the said W. R. Dean followed such advise (sic) by the said Jones by selling his said shares of stock in the said Alаbama Power Company; and, by means of such false pretense, the said Henry C. Jones did obtain from the said Mrs. Artie Mitchell the two Stock Certificates, one for six shares, the other for nine shares, of stock in the Alabama Power Comрany, then owned by the said Mrs. Artie Mitchell and herein above mentioned, the same being of the value of, to-wit, $900.00.”
As said by Mr. Justicе Head, in the opinion in the, we believe, leading case of Meek v. State, 117 Ala. 116, 23 So. 155, 156: “We do not understand that the indictment for obtaining goods by false pretenses must necessarily show that the alleged false pretense was capable of inducing the party to whom made to part with his goods, further than the allegation that by means of the pretense the goods wеre obtained. If the pretense alleged is of an existing or past fact or condition, and is alleged to have been false, and made with intent to defraud, and by means of it the defendant obtained the goods from the party named, the indictment is good, unless, indeed, the pretense, as alleged, appears upon its face to have been frivolous, and incapable of operating to induce one to part with his property. Whether or not thе pretense really operated as such material inducement is a matter of proof.” (Italics supplied.)
Measured by the lаw as laid down, above, by Justice Head, which, so far as we are advised, has not been in any respect changеd, to date, we think, and hold, that count 1 of the indictment (and, hence, for the reason indicated hereinabove counts 2 and 3) was sufficient; and that the demurrers to same were properly overruled.
Nothing is better settled under our law than that the allowance or exclusion of “leading questions” to a witness is a matter that rests within the sound discretion of thе court. It is sufficient that we simply say, that, in the instant case, we observe no abuse of that discretion. The chief witness for the State, an old woman, with a “troubled” heart, it is true, was allowed to be “led along” by the solicitor; but it is apparеnt that such “leading” was requisite, if the facts, as the witness claimed them to be, were ever to be developed. And we cannot see aught in her examination that was calculated to elicit other than merely her version of the facts. Appellant‘s rights were in no way harmed.
Likewise, we are unable to see prejudice to appellant‘s cause that requires a
Error, prejudicial to appellant, nowhere appearing, the judgment appealed from will stand affirmed.
Affirmed.
PER CURIAM.
Reversed and remanded on authority of Jones v. State, 236 Ala. 30, 182 So. 404.