Smith v. State

139 Ala. 115 | Ala. | 1903

TYSON, J. —

The defendant was indicted, and tried by the judge, without the intervention of a jury. — Local Acts, 1903, p. 40.

The indictment charges the offense denounced by Section 4757 of the Oocle, hut does not conclude “against the peace and dignity of the State’’ as is required by section 4898 of the Code and section 171 of Art. VI of the Constitution. It is, therefore, insufficient to support a conviction and should have been quashed. Furthermore, the evideuce is not such as requires the defendant to be held to answer another indictment for this charge. The proceeds of the property sold by him are undis-putedly shown to have been paid over to the holder of a mortgage, conveying the property so sold, executed by him and the person alleged to have been defrauded. It is true there is testimony on behalf of the State tending to show that at the time the holder, to whom defendant paid the proceeds, acquired the mortgage, he agreed to release the property. This, however, is disputed by the holder, who testified as a witness for defendant. But it is unnecessary to decide this disputed question of fact, since it appears, without conflict, that defendant ivas not a party to that agreement; nor is it made to appear that he had any knowledge of it. These facts which are dearly established by the evidence bring the case within the influence of the decision of Connor v. State, 97 Ala. 83.

The judgment of conviction will be reversed and an order will be here entered quashing the indictment and discharging defendant.

Never seel and rendered.