Meek v. State

117 Ala. 116 | Ala. | 1897

HEAD, J.

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 were 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 the pretense really operated as such material inducement is a matter of proof.

-The present indictment, we think, is, therefore, not subject to the criticisms of the demurrer.

There was no error in permitting the State to ask the witness, John Collins,'as to statements or representations defendant made to him, nor in refusing to exclude the answer.

We are of opinion the court erred in permitting the State to prove that defendant had never paid for the goods he obtained. If the offense charge was committed, at all, it was committed at the time the goods were obtained, If they were obtained by means of the false pretense alleged with the intent at the time to defraud, the offense was complete, and though the defendant may have afterwards repented and paid for the goods, even on the very day due, he was none the less guilty by reason thereof; and e converso, if when he obtained the goods he had no intent to defraud, or had not made .the alleged false pretense which induced the party to part with the goods, he was not guilty at all, whether he afterwards paid for them or not, and without regard to whether he afterwards formed a fraudulent intent not to pay for them. — Carlisle v. State, 77 Ala. 71.

The court permitted the State to prove by the witness, Collins, that he took a mortgage from defendant at the time, he sold him the goods to secure the debt. The defendant objected to the proof as being irrelevant and immaterial, and because the mortgage was not produced, and his objection was overruled and he excepted. We think the defendant is not in a position to allege error in this ruling, for the reason that the evidence was-beneficial to him and prejudicial to the State. It furnished evidence to the jury from which they might have inferred that the sellers were induced to sell their goods in reliance upon the mortgage security rather than upon the representations alleged in the indictment. Unless by som.c action or ruling, which does not appear to have occurred, this evidence was perverted to other than its legitimate bearings, we can not conceive how it is possible for the defendant to have been otherwise than benefitted by its introduction. It would clearly have been admissible evidence for him if he had offered it himself as a means of showing an inducement to part with the goods, other than that, charged. We must hold, however, technically the State had no right to introduce the mortgage, nor evidence of its contents. It did not tend to prove any allegation of the indictment. Nor was it competent for the State to prove the declaration of the defendant at the time of the transaction that he owned the articles of property, though properly viewed by the jury, it was likewise beneficial to the defendant as going to show that the ownership of the property was the inducement to the firm to sell the goods.

The testimony of the several witnesses as to the efforts to gather up the mortgage property and what defendant said and did as to what had become of the property, the next year after the goods were obtained, shed no light upon the inquiry whether he, defendant, with intent to defraud, falsely represented, perhaps a year before, that “he lived in Geneva county, Alabama, and was preparing to make a crop in Geneva county for the year 1893,” and by means of such false pretense obtained goods, etc. The declaration as to his having advantage of Malone, Collins & Co. because he lived in Florida was proper to be considered upon the materiality of the alleged representation, and probably the intent.

It was not proper for the State to prove whether or not defendant owned a bay horse in 1892.

It was proper for the State to prove by Ed Malone that defendant told him, in February, 1893, that. he lived in Geneva county.

It was clearly improper to permit the same witness-to testify that he would not have sold defendant the goods if he had told him that he lived in Florida.

There was no error in refusing to allow the witness, Holman, to testify to defendant’s declaration as shown ■ in that witness’s testimony.

There was no evidence tending to prove the allegation of the indictment that defendant pretended that he ‘ ‘was preparing to make a crop in Geneva county for the year 1893,” wherefore the general affirmative charge requested by the defendant ought to have been given.

The second charge requested by the defendant was manifestly bad, and the third- manifestly good. The second evidently used the word “unless” when “if” was intended. The court erred in refusing'the third.

Let the defendant remain in custody until discharged by due course of law.

Reversed and remanded.