McIntyre v. State

May 9, 1911

Versions:55 So. 639

1 Ala. App. 200

1911 Ala. App. LEXIS 223

WALKEB, P. J.

For anything that appears in the bill of exceptions, the statement of the witness Davis as to a remark made to him by the defendant “before the mortgage was drawn” may have been called for by a question of the solicitor, which was not objected to by the defendant, asking what the defendant said “before the mortgage was drawn.” If so, there was no error in the refusal of the court to exclude the quoted statement of the witness as to the drawing of the mortgage, as a party should not speculate upon the answer to a question calling for testimony which he may regard as objectionable.—Billingsley v. State, 96 Ala. 126, 11 South. 409. A like consideration disposes of the exception to the action of the trial court touching a statement by the same witness in reference to a yoke of oxen, and also the exception to the action of the trial court in reference to defendant’s objection to the statement by the- witness Tucker in reference to an arrest of the defendant.

When examined as a witness in his own behalf, the defendant voluntarily stated that he executed the mort*204gage to Davis, and testified as to the details of that transaction. By so doing he abandoned his objection, previously made, to the introduction of that instrument in evidence. It is not intended to be intimated that there was merit in that objection, on the grounds stated, when it was made.

Following the rule made in the case of Meek v. State, 117 Ala. 116, 23 South. 155, it must be held that there was error in permitting the state, against the objection of the defendant, to prove that the defendant did not pay the debt contracted. If defendant, when he obtained money, had no intent to defraud, or had not made the alleged false pretense, he ivas not guilty, whether he afterwards paid the debt contracted or not, and without regard to whether he afterwards formed a fraudulent intent not to pay.

The defendant, in ashing the witness Davis the question, “How much money would you have let the defendant have, if the land had not been included with the horse and mule?77 called for the undisclosed purpose or intention of the witness, and there was no error in sustaining the objection interposed by the state to the question.

If by the false pretenses alleged, made with intent to defraud, the defendant obtained money from Davis, as charged in the indictment, it was not a ground for excluding the evidence tending to show the obtaining of the money by the alleged false pretenses, made with intent to defraud, that the mortgage given to secure the repayment of the money so obtained was executed after the money was paid.

Other questions presented may not arise on another trial, and they need not be considered. Because of the error above stated, the judgment must be reversed.

Reversed and remanded.