Mack v. State
63 Ala. 138
Ala.
1879
Check Treatment
STONE, J.

Thе present indictment was found under section 4370 of the Code of 1876, which declares, that “any рerson who, by any false pretense or token, and with the intent to injure ‍‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​​​​​‌‌‌​​​​‌‌​​‌​​​‌‌​​‍or defraud, obtains from another any money, or other personal property, must, on conviction, be рunished as if he had stolen it.” The form of indictment in such case is *140found on page 996 of the Codе, form 48. The pretense charged in the present case is, that the accused falsеly pretended to Ebenezer Smith that he had been sent by_ Ella Mack for certain persоnal chattels, then in the possession of the former, but held by him for the said Ella. Under this pretensе, he obtained possession of the chattels. To constitute this statutory crime, there must bе a pretense, by declaration or. otherwise, that some fact or facts exist, tending to induce another to part with something valuable, and upon the strength of which pretense or representation the possession of the valuable thing is parted with. The aсcomplished fraud must - have reasonable connection with the pretense (Bish. Stat. ‍‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​​​​​‌‌‌​​​​‌‌​​‌​​​‌‌​​‍Crimes, § 452); and the pretense must be shown to be false, and made with intent to injure or defraud. Defraud whоm? The statute does not in terms inform us. Usually, the intent is to defraud the owner of the thing obtained ; but it is sufficient if the intent be to defraud any one, connected with the ownership, possession, or сustody of the chattel. Possession gives a special property, which the law regаrds, and will protect against any claimant, except the rightful owner. So, in this case, if Smith held the chattels for Ella Mack, or for the estate of her husband, and if he surrendered the possession to one not authorized to receive it, this would render him liable to accоunt for its value, as for a conversion. — Nelson v. Beck, 54 Ala. 329. The testimony in this case tends to show that Smith’s possession was that of Ella Mack, and that he held simply for her, and not in his own right. Under our statutes, the widow has a valuable and clearly defined interest in her husband’s estate, and in its preservation. The alleged falsе pretense charged proceeds on the theory, that the instruments belonged to Ellа Mack, or were subject to her control; for the testimony ‍‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​​​​​‌‌‌​​​​‌‌​​‌​​​‌‌​​‍tends to show that the accused, when he obtained them from Smith, stated that Ella Mack had sent him for them. The intent to injure or defraud either Smith or Ella Mack, may iiave^existed in the mind of the accused; and either one,'if shown to exist, would make out that feature of the case. Either one owned sufficient property or interest in the chattels, if the testimony be believed, to be the subject of such intent.— Crum v. Williams, 29 Ala. 446; Williams v. Crum, 27 Ala. 468; Brown v. Beason, 24 Ala. 466. But, the intent to injure or defraud ‍‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​​​​​‌‌‌​​​​‌‌​​‌​​​‌‌​​‍must be shown, or the offense is not complete. — O’Connor v. The State, 30 Ala. 9. This, however, need not neсessarily be shown by independent testimony. It may be inferred from the character of the rеpresentation ‍‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​​‌​​‌‌​​​​​‌‌‌​​​​‌‌​​‌​​​‌‌​​‍or pretense, its known falsity, and the attendant circumstances, if sufficiеnt to convince the jury, beyond a reasona-' *141ble doubt, that there was an intent to injure or defraud. People v. Herrick, 13 Wend. 87; 2 Bish. Cr. Proc. § 174.

The charge asked by defendant was rightly refused. It was not indispensably necessary, as we have shown, that there should have been an administration on the estate of the deceased Mack. The intent to defraud may have existed without that. To hold otherwise, would be to leave estates of decedents, before administration granted, at the mercy of the vicious.

On the other question, the bill of еxceptions is obscure ; namely, whether the transaction deposed.to by Skinner oсcurred before or after the musical instruments were obtained by the accused from Smith. We have carefully considered its recitals, and cannot answer this question to our satisfaction. If it occurred before, then it was irrelevant to the issue presented by the indictmеnt, and should not have been received. It was calculated to prejudice the jury, by the consideration of an act of impropriety, having no connection whatever with the offense charged. On the other hand, if it occurred after he had obtained the instruments from Smith, then the testimony was legal. It tended to show an assertion of ownership by the acсused, and to repel all idea that he obtained them for the use and benefit of Fila Mаck. In other words, its tendency was to show an intent to injure or defraud the rightful owner, by converting the chattels to his own use. Under a well-defined rule, we are bound to indulge every reasonable intendment in favor of the correct ruling of the Circuit Court. We cannot presume error. It must be affirmatively shown. — 1 Brick. Dig. .781.

The judgment is affirmed.