Woodbury v. State, 69 Ala. 242

Woodbury v. State

69 Ala. 242 | Ala. | 1881

BRICKELL, C. J.

The indictment contains three counts,— the first charging the appellant with the larceny of a sewing machine, of the value of sixty dollars,- — -the second and third charging him with obtaining the machine under false pretenses. The appellant pleaded not guilty, and the verdict was of guilty on the second count, which operates an acquittal on the other counts. *245The questions now presented arise on exceptions to instructions given the jury by the court at the request of the State, and an instruction on the effect of the evidence requested by the appellant, and refused.

The instructions given by the court, numbered in the bill of exceptions two, three and four, are assailed upon the ground, that while assuming to state the elements of the offense of obtaining money or goods under false pretenses, they utterly omit or ignore the important inquiry, whether the particular pretense alleged had a capacity, if false, to mislead and to deceive, or having that capacity, the prosecutor acted upon it, and was .misled or deceived by it; and whether by the exercise of common prudence, he could not have avoided imposition from. it. These instructions were probably intended to be literal extracts from opinions of this court, defining this offense, embodying its elements, so far as the facts of the particular cases, and the questions involved, required a definition of the offense, and a description of its constituent ingredients. As applied to the particular cases, the court is committed to their correctness as legal propositions. But it is very far from being a satisfaction of the duty of a primary court, in instructing the jury, to borrow these propositions, and recite these definitions, without adaptation of them to the facts of the case which is submitted for the consideration and determination of the jury. The mere recitation of definitions, or of elementary principles, is more often calculated to confuse and mislead, than to instruct a jury. The instructions given by the court affirmatively, ex mero motu, should present the particular case, in all the phases and aspects in which the jury ought to consider it; not giving any undue prominence to, or leaving in obscurity, any phase or aspect there is evidence tending to support; and if such instructions in effect discard or ignore, and thereby induce the jury to discard or ignore any real, material element of the offense imputed to the accused, they ought not to be supported.— Corbett v. State, 31 Ala. 329; Gooden v. State, 55 Ala. 178; Holmes v. The State, 23 Ala. 17.

A false pretense, to be indictable, must be calculated to deceive and defraud. As of an actionable misrepresentation, it must be of a material fact, on which the party to whom it is made, has the right to rely; not the mere expresssion of an opinion, and not of facts open to his present observation, and in reference to which, if he observed, he could obtain correct knowledge. Whether the prosecutor could have avoided imposition-from the false pretense, if he had exercised ordinary prudence and discretion to detect its falsity, is not a material inquiry. As a general rule, if the pretense is not of itself absurd or irrational, or if he had not at the very time it was made and *246acted on, the means at hand of detecting its falsehood, if he was really imposed on, his want of prudence is not a defense. 2. Whart. Or. Law, § 2128. If the residence of the accused at a particular locality was a material fact in the transaction between him and the prosecutor; if with the intent to defraud the prosecutor, the prisoner misrepresented the locality of his residence, and by means of the misrepresentation obtained the-sewing machine, the misrepresentation being a controlling inducement with the prosecutor to part with his property, it is not a defense, that if the prosecutor had taken the precaution to inquire at the particular locality, he could have found it was not the residence of the prisoner, and would not have'been deceived and defrauded. The prosecutor had a right to rely on the representation, and there was no obligation or duty to the prisoner to inquire into its truth, or whether he was dealing fairly and honestly.

The false pretense must not only be, however, of a material fact, but it must have been, not the sole, exclusive or decisive-cause, but a controlling inducement with the prosecutor for the transfer of his money or property. Other considerations may mingle with the false pretense, having an influence upon the mind and conduct of'the prosecutor; yet, if in the absence of the false pretense, he would not have parted with his property,, the offense is complete. — People v. Haynes, 11 Wend, 557. But if without the false pretense he would have parted with his property — if that is not an operative, moving cause of the transfer — if he did not rely and act upon it, there may be falsehood, but there is not crime. — 2 Whart. Ev. §§ 2120-22. In view of the evidence of the proseen tor, tending strongly to the conclusion, if it is not a positive affirmation, that the misrepresentation of the locality of his residence, imputed to the accused, had no influence with him in causing or inducing him to-.part with the sewing machine, the instructions given the jury seem to us erroneous. If to this phase of tiie case, they can be regarded' as directing the attention and consideration of the jury, it is-only by the construction which counsel, accustomed to a close examination of legal propositions, would place upon them. As a general rule, if affirmative charges assert correct legal propositions, their generality, obscurity, or ambiguity must be obviated by a request for more specific instructions. But if the immediate, direct tendency of such instructions is to mislead the jury, diverting their attention from material evidence, and from the consideration of controlling inquiries, or creating the impression that they are authorized to exclude evidence they, ought to consider, such instructions are erroneous, and must operate a reversal of a judgment they have induced.

These instructions, omitting all proper reference to the evi*247dence of the prosecutor, tending to show that he was not influenced in parting with the machine by the representation of the accused, that his residence was at a particular locality, in effect excluding that evidence from the consideration of the jury, had an immediate tendency to mislead them. It was the duty of the court to instruct the jury, that if the misrepresentation was-not an inducing, controlling motive with the prosecutor to part with the machine, there should not be a conviction of the accused upon either of the counts for false pretenses. — Commonwealth v. Davison, 1 Cush. 33. It is not necessary to pass upon the other exceptions, as this view will probably be decisive of the case on another trial.

Reversed and remanded.