Opinion
8 Div. 858.
March 4, 1930. Rehearing Granted August 19, 1930.
Appeal from Circuit Court, Morgan County; James E. Horton, Judge.
Jesse Robinson, Jr., was convicted of obtaining property by false pretense, and he appeals.
Reversed and remanded on rehearing.
The indictment is as follows: "The grand jury of said county charge that before the finding of this indictment Jesse Robinson, Jr., did falsely pretend to G. P. Irwin, with intent to defraud, that he was an employe of the Louisville Nashville Railroad Company and worked in the shops of the Louisville Nashville Railroad Company at Decatur, Alabama, and had two week's wages due him by the Louisville Nashville Railroad Company and by means of such false pretense obtained from the said G. P. Irwin one suit of clothes of the value of twenty nine dollars, against the peace and dignity of the State of Alabama."
The demurrer to the indictment was upon the following grounds:
"1. It is not averred or shown that the alleged representation was concerning a fact existing at time such representation was made.
"2. It is not averred or shown that defendant represented he was at the time of the making of the representation an employe of the Louisville Nashville Railroad Company at Decatur, Alabama, and then had two weeks' wages due him by the said Louisville Nashville Railroad Company.
"3. Because it is uncertain and indefinite, in that the time when the working took place and the wages were due is not given.
"4. It is not averred or shown that said goods were obtained by false pretense.
"5. The time when defendant was employed and due wages is uncertain and indefinite.
"6. For aught that appears the defendant had been employed by the Louisville Nashville Railroad Company and was due therefor wages at a time anterior to the time when said representation was being made.
"7. For aught that appears the defendant represented that at some unnamed and anterior time he was an employe of the Louisville Nashville Railroad Company and was due two weeks' wages therefor."
State's witness R. L. Maury testified: "I am employed by the L. N. Railroad Company and have been for 50 years. I am Chief Clerk for the Mechanical Department, which is in the nature of an accountancy and was Chief Clerk of the Decatur Shops in February, 1928. I have made an examination of the time keepers or the assistant time keepers' books of the L. N. Shops in Decatur, Alabama for February 14, 1928 and for two weeks preceding that date. I know the hand writing of the various assistant time keepers. I examined their books for the entire month of February, 1928. These records show the names of each and every employee working in the shops of the L. N. Railroad Company in Decatur during the month of February, 1928. I have charge of the entire department. These records are correct. They are supplemented by a check from the foreman after the pay rolls are prepared, and copies made of them, and we turn them back to the Foreman for checking. I check those records. These records also show the amount of work done by each, and are made by the various time keepers and Foreman also, and they are the ones from which I make the records I was asked about. I am not present when those records are made."
Thereupon he was asked: "His (defendant's) name did not appear on any of the records?"
Defendant objected to the question "because these records are made by others; because the records are the best evidence, and because the witness cannot testify as to what somebody else's records show; because the correctness of the records is not shown."
The court overruled the objection, defendant reserved an exception and the witness answered: "No, Sir."
S. A. Lynne, of Decatur, for appellant.
The indictment charges that the sale was obtained by the false representation that defendant was an employee of the Louisville Nashville Railroad Company which was due him two weeks' wages. The proof was that the goods were parted with on the recommendation of Speake, Warren and Ratliff. This constituted a fatal variance, which entitled defendant to an acquittal. May v. State, 22 Ala. App. 278, 114 So. 789.
Charlie C. McCall, Atty. Gen., and Merwin T. Koonce, Asst. Atty. Gen., for the State.
Where it appears that the witness had a distinct and independent recollection of the matters about which he testifies, his testimony is not rendered incompetent under the best evidence rule by reason of the fact that he or some other person made a contemporaneous written memorandum, which is not produced. 22 C. J. 985.
Appellant was convicted of the offense known as "Obtaining Property by false pretenses." The value of the goods obtained being more than $25, he was punished as for grand larceny. Code 1923, §§ 4131, 4905.
The indictment followed the form prescribed by the Code (Code 1923, § 4556, form 58), and was sufficient as against demurrer (Code 1923, § 4527).
It appearing that there was no record of appellant's employment at the shops of the Louisville Nashville Railroad Company, during the time inquired about, allowing the witness Maury, the chief clerk, "in charge of the entire department" to so testify, did not violate any rule of evidence. United Order of the Golden Cross v. Hooser, 160 Ala. 334, 49 So. 354.
We have searched the record diligently for prejudicial error, but, finding none, the judgment must be, and is, affirmed.
Affirmed.
On Rehearing.
The indictment in this case charged, essentially, that appellant "did falsely pretend to G. P. Irwin, with intent to defraud, that he was an employee of the Louisville Nashville Railroad Company * * * and had two weeks wages due him by the Louisville Nashville Railroad Company and by means of such false pretense obtained," etc. (describing the goods, etc.).
The evidence, in its strongest aspect for the state, on the question of how the goods were obtained, was as follows: "The defendant said he would give me Speake, Warren Ratliff as a recommendation, as to his ability to pay. This was before I let him have the clothes, and I did call them up, and they did give me a recommendation as to Jesse Robinson being good pay, and upon that I let Jesse Robinson, Jr., have the suit."
Upon reconsideration, we are of the opinion that a fatal variance is thus shown between the allegation in the indictment and the proof adduced upon the trial of this case. In such condition, the general affirmative charge, in his favor, duly requested by appellant, should have been given, and, for the error in its refusal, the application for rehearing is granted, the judgment of affirmance heretofore rendered set aside, the Judgment of conviction reversed, and the cause remanded. May v. State, 22 Ala. App. 278, 114 So. 788.
Application granted. Judgment of affirmance set aside. Judgment of conviction reversed, and the cause remanded.