4 Div. 747. | Ala. Ct. App. | Nov 21, 1923
Lead Opinion
The indictment under which appellant was convicted in the circuit court contained five counts. The first and third counts charged the defendant with the crime of obtaining $500 from one J.B. Martin, by means of false pretense. The second, fourth, and fifth counts charged that he obtained the signature of J.B. Martin to a certain written instrument, by false pretense.
The first and third counts were practically in Code form, charging the defendant with violating section 6920 of the Code 1907. The second, fourth, and fifth counts were, for practical purposes, in Code form, and charged the defendant with violating section 6921 of the Code 1907. In other words, the first and third counts charged one offense in varying forms. The second, fourth, and fifth counts charged another and different offense in varying forms. The defendant was thus put upon trial for two offenses — one for obtaining $500 from J.B. Martin by false pretense; the other for obtaining his signature to a written instrument or note.
That the offense of obtaining money by false pretense and the offense of obtaining the signature to a written instrument are different offenses no argument or citation of authorities is necessary, other than sections 6920 and 6921 of the Code. The fourth count of the indictment is eliminated by nol pros.
The verdict of the jury convicted the defendant under the first and third counts, the verdict so specifying. This, of course, was an acquittal of the defendant under the second and fifth counts, as certainly so as if the jury had so specified as to these counts. Finding the defendant guilty under one or more counts of the indictment is an acquittal as to the other counts. This is too well known and uniformly settled by all the courts and text-books on the subject to require citation of authorities.
A careful examination of the record fails to disclose any evidence of the material fact charged in the first and third counts of the indictment — that the defendant obtained from J.B. Martin $500 or any other amount of money. There is some evidence in the record that he did obtain the signature of J.B. Martin to a written instrument or promissory note, as was charged in the indictment, but as to these counts the verdict of acquittal by the jury finally disposes of the offense *158 charged of obtaining the signature of Martin to a written instrument or note.
So the result is that this record discloses that the defendant was convicted of the offense charged in the first and third counts in the indictment, without any evidence whatever to support the material allegation that he obtained from J.B. Martin the sum of $500 by means of false pretense. If it should be conceded that the defendant did by false pretense obtain the signature of Martin to a written instrument or note, and the note was subsequently paid by Martin, as to which fact there is some evidence that the note was subsequently paid by Martin to the corporation, such proof would not support a conviction for obtaining money by false pretense.
The record in this case does not disclose any question of variance as to which the defendant should have specially called the attention of the trial court as required by the rules of the Supreme Court. The record in this case presents the question of entire failure of proof as to a material allegation in counts one and three of the indictment, and not a question of variance. The mere fact that the false pretense alleged in each of the counts was practically the same in each and in all of the counts in the indictment does not prevent the offenses charged in counts 1 and 3 from being entirely different from the offenses charged in the other counts.
As conclusive proof that the offenses are different, the statute fixes different punishments. Surely it cannot be contended that a defendant could be punished on a conviction for violating section 6920 of the Code by a punishment fixed for violating section 6921, when the punishment is different. There seems to be no express decision of this court, or the Supreme Court, on the question presented by this record, though there are analogous cases as to larceny, embezzlement, forgery, etc. We find express decision, however, of the Supreme Court of North Carolina, which state has statutes very similar to the statutes of this state on the subject. The case of State v. Gibson, twice reported, first in
It therefore results necessarily that the verdict and judgment of the court below is erroneous, and that the trial court should have given the affirmative charge requested by the defendant as to counts 1 and 3 of the indictment. As the cause must be remanded, it is proper that the court should now decide that the verdict of the jury was an acquittal of the defendant of the offenses charged in counts 2 and 5 of the indictment.
Reversed and remanded.
Dissenting Opinion
Eliminating the counts in the indictment that were either nol. prossed or eliminated by the verdict of the jury, the defendant stands convicted upon two counts as follows:
"The grand jury of said county charge that before the finding of this indictment that George D. Pollock, being at the time an agent or an officer of the Peanut Products Corporation, a corporation, and while acting as such agent or officer in the sale or offer to sell certificate or certificates of the capital stock of the Peanut Products Corporation to one J.B. Martin, did falsely pretend to the said J.B. Martin, with intent to defraud, that the said Peanut Products Corporation had paid big dividends and was earning fifty to sixty per cent. on its output and by means of such false pretense obtained from the said J.B. Martin five hundred dollars.
"The grand jury of said county further charge that before the finding of this indictment that George D. Pollock, being at the time an agent or an officer of the Peanut Products Corporation, a corporation, and while acting as such agent or officer in the sale or offer to sell a certificate or certificates of the capital stock of the said Peanut Products Corporation to one J.B. Martin with intent to defraud, that the said Peanut Products Corporation had paid big dividends and was earning forty to sixty per cent. on its output, and by means of such false pretense obtained from the said J.B. Martin five hundred dollars."
It is contended by the appellant that he is entitled to the general affirmative charge as to both of these counts and for convenience we deal with these questions as presented in brief, they being the only questions of merit presented for review.
It is first contended that it is charged that defendant sold "a certificate or certificates of the capital stock of the corporation," when the evidence shows that what he really sold was the capital stock represented by the certificates delivered. There is, in law, a technical difference between certificates of stock in a corporation and the stock itself. To the average mind, however, this is a distinction without a difference; the difference between "tweedledum and tweedledee." In common parlance, which is the language of indictments in this state, a charge that the defendant sold a certificate of shares in a corporation is equivalent to a charge that he sold stock in the corporation issuing the certificate, and meets the requirements as to the statement of the offense. Code 1907, § 7134.
It is next insisted that the probata and allegata do not correspond, and that therefore the defendant is entitled to the general charge as to both counts 1 and 3. The statement or pretense laid in the indictment and alleged to be false is:
"The said Peanut Corporation had paid big dividends and was earning fifty to sixty per cent. on its output." *159
This is an allegation of two separable facts, to wit, that the corporation had paid big dividends and that the corporation was earning 50 to 60 per cent. on its output. The proof of either one of these statements, coupled with the other essential facts, would be sufficient to sustain a conviction as against the contention that the allegations and proof did not correspond so as to prove the corpus delicti. Addington v. State,
The proof made by the state of the pretense charged in the indictment was by the party alleged to have been defrauded, Martin, and one Fleming; the former saying, "He said that the Peanut Corporation was a paying business and had paid anywhere from forty to sixty per cent. dividend," and the latter testifying, "He told Mr. Martin in my presence that the corporation was earning big dividends and it was paying from forty to fifty and sixty per cent. dividend." The pretense alleged need not be proven in the precise words laid in the indictment; entire verbal accuracy is not required. It is essential that the idea conveyed by the defendant and that set forth in the indictment must correspond. 11 Rawle C. L. 863, § 46; State v. Vanderbilt,
It is further contended that the defendant was entitled to the general charge, because the indictment alleged that "by means of such false pretenses obtained from the said J.B. Martin $500," when the proof showed that at the time of the transaction the defendant obtained a note from Martin, due at a future data and payable to the corporation, for whom he was acting as agent. While the defendant did testify that he received none of the proceeds of the note, there was sufficient evidence from which the jury might conclude that he was the agent of the corporation in obtaining the note which was subsequently paid to the corporation in completion of the transaction. The gravamen of the offense is in making the false pretense, with the intent to defraud, and the offense is consummated when, with such intent, he obtains from Martin the $500 — whether for himself or another is of no moment. Carroll v. State (Ala.App.)
The case of Hendrix v. State,
The rulings of the court upon the admission of testimony were without error, and upon the whole evidence the question of the guilt or innocence of defendant was properly submitted to the jury.
The foregoing are the views of the writer, but the other members of the court disagree, and the majority opinion will be prepared by one of them.
Addendum
It is seriously insisted, on application for rehearing, that the evidence authorized the jury to find the defendant guilty of obtaining money under false pretense, in that he obtained a signature to a promissory note by false pretense and that the note was paid. A complete answer to this contention is that the jury found the defendant not guilty as to obtaining the signature to the note by false pretense. If he did not obtain the signature to the note by false pretense, as the jury found, then he could not have obtained the money by false pretense; there being no evidence that he obtained anything as charged, except the signature to the promissory note, and the jury found by their verdict he did not obtain it by false pretense.
If the state's contention and insistence be true, the defendant must have obtained the signature to the note by false pretense, and the jury found by their verdict that he did not so obtain the signature to the note as charged.
Application overruled.