Opinion
8 Div. 334.
August 4, 1931.
Appeal from Lawrence County Court; W. R. Jackson, Judge.
Charlie, alias C. O., Carpenter was convicted of an offense, and he appeals.
Reversed and remanded.
The indictment charges that defendant falsely pretended to Ernest Yarbrough, with intent to defraud, that he had sufficient funds in the Bank of Moulton to make payment of a check for the sum of $22.25, and by means of such false pretense obtained from him a lot of goods and merchandise and cash of the value of $22.25.
The demurrer takes the points that the indictment is vague and indefinite, does not aver that defendant gave a check, or that he obtained the goods and money by giving a check, or that the check was in any way an inducement in obtaining the goods, and does not allege the specific property obtained or any amount of money.
The theory of the defense was that defendant was a tenant on the farm of one Witt; that in March, 1929, defendant went with Witt to the Bank of Moulton, where defendant executed a mortgage to Witt which, with a mortgage executed by Witt, was given to the bank to secure a loan made by the bank to Witt; that Witt thereupon deposited $50 to the credit of defendant and then and there agreed, in the presence of the cashier, to place an additional $69 to the credit of defendant on April 7th; that thereafter the defendant, by mistake assuming that the additional deposit would be made April 1st instead of April 7th, gave checks, including that to Yarbrough dated April 5th, believing he had funds sufficient in the bank to cover; that the check in question reached the bank April 9th and was dishonored; that defendant went to the bank and discovered that Witt had not made the deposit as agreed, and upon seeing Witt learned that he (Witt) had used the $69 himself.
Defendant's questions calling for testimony as to whether defendant's mortgage along with Witt's was pledged to secure a loan to Witt, and whether or not defendant thought he had the money in the bank to pay the check in question, were objected to by the state and these objections were sustained.
Charge 2, refused to defendant, is as follows: "I charge you, gentlemen of the jury, that if you are reasonably satisfied from the evidence in the case that the defendant at the time he bought the goods and said he had $22.25 in the bank, if he did say it, was under the bona fide belief that he had the money in the bank to pay the check, and that he gave the check in bona fide payment for the goods bought, then you should acquit the defendant."
Travis Williams, of Russellville, for appellant.
The intent to defraud is a necessary ingredient of the offense charged, and the facts and circumstances bearing upon his intentions should have been admitted in evidence. Montgomery-Moore Mfg. Co. v. Leeth, 2 Ala. App. 324, 56 So. 770; Clark v. Dunham Lbr. Co., 86 Ala. 220, 5 So. 560; Carlisle v. State, 77 Ala. 71; Young v. State, 155 Ala. 145, 46 So. 580.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
This appellant was charged by indictment with the offense denounced by section 4131 of the Code 1923, which reads: "Any person, who, by false pretense or token, and with the intent to injure or defraud, obtains from another any money or other personal property, must on conviction, be punished, as if he had stolen it."
The indictment follows substantially form 58 and was sufficient. The demurrers thereto were properly overruled.
By the several rulings of the court upon the admission of evidence to which due exceptions were reserved, we are inclined to the opinion that the lower court tried this case as for a violation of section 4158 of the Code 1923, as amended by the Acts of 1927, p. 286; that is to say, for the offense of "giving check or draft when funds insufficient to cover." The oral charge dealt only with the measure of proof in a general way which would be applicable in all criminal cases. No instructions were given the jury as to what constituted the particular offense charged, and no attempt was therein made to define the essential ingredients of the offense. Realizing this lack of proper instruction as to the constituent elements of the offense in point, the defendant requested charge 2, to cover, in point, this discrepancy. The charge should have been given, for if in good faith and with no intent to defraud the defendant made the statement he had sufficient funds in the bank to cover said check and it afterwards developed that he was mistaken and the amount to his credit lacked a little of meeting said check, there could be no conviction upon this charge. Hope v. State, 5 Ala. App. 123, 127, 59 So. 326. In other words, under a charge of this character, an intent to injure or defraud must be alleged, and proven upon the trial. Mack v. State, 63 Ala. 138. In O'Connor v. State, 30 Ala. 9, the Supreme Court said: "To make out the statutory offense of obtaining goods by false pretenses, it is not enough to prove that the pretense was false, and that the prisoner thereby obtained the property; but, in addition thereto, the fraudulent intent at the time must be proved."
The several exceptions to the court's rulings upon the admission of evidence were well taken.
We are of the opinion also that the court erred to a reversal in overruling defendant's motion for a new trial.
Reversed and remanded.