Addington v. State

• Decision Date: 07 September 1916
• Docket Number: 6 Div. 16
• Citation: 16 Ala.App. 10,74 So. 846
• Parties: ADDINGTON v. STATE.
• Court: Alabama Court of Appeals

74 So. 846

16 Ala.App. 10

ADDINGTON v. STATE.

6 Div. 16

Court of Appeals of Alabama

September 7, 1916

On Application for Rehearing, October 19, 1916

Appeal from Criminal Court, Jefferson County; William E. Fort Judge.

Jacob L. Addington was convicted of securing the signature to a mortgage by false pretenses, and he appeals. Affirmed, and petition for rehearing denied.

Brown J., dissenting in part.

The second count of the indictment sufficiently appears, but in the indictment the mortgage alleged to have been obtained under false pretenses is set out in full. The oral charge of the court and the exceptions thereto are as follows:

Now, gentlemen, you have listened to this case from the beginning to the end, and have heard the evidence on both sides, and have listened patiently to the arguments of counsel for the state and for the defendant. You recognize that you are not here for the purpose of doing a favor to either side, neither to the state nor the defendant. You are not here for the purpose of doing anything in this cause except to establish what is the truth, from the evidence in this case, and under the law which the court will give you in its charge. Twelve men have been selected, as jurors, because of their impartiality, their everyday experience in affairs of life and intelligence, in order that they may determine the issues in this case justly, intelligently, and without fear or favor. You, gentlemen, being those selected, become officers sworn to establish the truth as you see the truth to be, from the evidence in the case. Now you, gentlemen, are the sole judges and the exclusive judges of the evidence, and you are entitled to apply to the evidence in the case as you have heard it from the witness stand, your everyday common sense and experience, your intelligence and your judgment what you have gathered from dealing with men and affairs, in the ordinary affairs of life. You likewise may consider, not only the spoken words of the witnesses, but may look behind those spoken words for any interest which the witness may have in the case, and any bias or prejudice, or anything which might sway the witness aside from the path of truth. The motive, then, of each witness in the case, may be looked to by you in determining what weight you will give to the testimony of each of the witnesses in the case. You have the right, of course, to reject any portion of any witness' testimony which you believe to be untrue; the general rule of law being to accept the true and reject the false, because remember, gentlemen, that all through the case truth is what you are trying to arrive at, from all the testimony, from all of the witnesses in the case, so that in this court justice may be founded upon truth. You have the right to observe the manner of each witness while testifying on the stand, his facial expression, in order to determine from that, and from the evidence or testimony, and from his own words, what the truth is in the case. Now the presiding judge, gentlemen, is required to give the jury a statement, as clearly as possible, of the law of the case. The presiding judge is the judge of the law. He is here to interpret that law to you, so that you may understandingly apply the law to the evidence. I will give you, gentlemen, as briefly as I can, and as clearly, my understanding and interpretation of the law of Alabama as applied to the charge made against the defendant by the indictment in this case, and as all other phases thereof covering the rights of the defendant and the charge made against him.

The first count of this indictment, gentlemen, I charge you you cannot convict upon, because of its failure to set forth an instrument which on its face would be capable of forgery. There is a defect in the instrument as set out; that is, in the acknowledgment. The instrument does not appear in that count to be acknowledged, as it is in the second count of the indictment; the second count of the indictment, therefore, will be the only count or charge made before you against the defendant at bar. Now that count, gentlemen, does not charge forgery, but it charges an offense under section 6921 of the Code, under the general heading of fraud. That section reads as follows: "Any person who, by any false pretense or token, and with intent to injure or defraud, obtains fom another his signature to any written instrument, the false making of which is forgery, must, on conviction be punished as if he had forged the instrument." It is under the general statutes known as obtaining money or other goods by false pretenses, but charges not the obtaining of money or goods, but the obtaining of the signature of another to any written instrument, the false making of which is forgery. Now you will observe, gentlemen, from the very reading of the Code, that there are certain essential elements--that is, certain essential things--that must exist before the offense can be made out. The indictment charges an offense under that section, and it is necessary to prove beyond reasonable doubt, in the first place, that there was a false pretense made by the accused to the party alleged to have been injured--a false pretense; that is, a statement of facts, either an existing fact or a past fact, which is false or untrue. That is the first essential element of the offense which we have to consider. Was there a false statement made by the accused, as charged in the second count of the indictment? In other words, if the accused, as stated in the second count falsely pretends to Rachel Woodruff, "with the intent to injure or defraud, that he, the said Jacob L. Addington was

a lawyer"? Now that is one of the charges of false pretense. Is that a fact or not? Did he falsely pretend that he was a lawyer or not, as charged, to Rachel Woodruff? In the first place, you have to determine, did he make that statement, as charged, that he was a lawyer? If so, was it false or true? Now you have heard the evidence on that subject, both that on behalf of the state and on behalf of the defendant, and it is for you to say, as judges of the evidence, what the truth is, where you find the evidence in conflict. If you can reconcile such conflict, so as to make the witnesses speak the truth, it will be your duty to do so, in fairness to the witnesses; but if you find any two witnesses are in irreconcilable conflict, then of course it is for you, and you alone, to decide what the truth is, rejecting what you believe to be untrue, and accepting what you believe to be true.

The second element of this offense charged in the second count of the indictment is that there must have been an intent on the part of the defendant to injure or defraud, either to injure the party to whom the false statement was alleged to have been made or defraud her. Now you, gentlemen, have heard the evidence in this case, and from that evidence as introduced you must determine whether or not there was an intent, on the part of the party accused of the alleged false statement, to injure or defraud. Now how does a jury arrive at a conclusion as to what a man's intent was? The only way here you can decide what a man's intent was, intent being what was in the heart of a man, is from all the circumstances, all the surrounding circumstances, from the evidence in the case, and then weigh those circumstances, if sufficient, and draw your reasonable conclusion whether or not there was an intent to defraud; whether or not it is true, applying to it your own judgment, your own experience, and your common sense. Now it is not necessary that all the alleged false pretenses should be proven as charged. In other words, it would be sufficient to sustain the false pretense alleged in this second count of the indictment if you believed, beyond a reasonable doubt, that the defendant, with the intent to injure or defraud, made any one of the alleged false statements set out therein.

For example, if it was proven beyond a reasonable doubt that he, with the intent to injure or defraud--that the defendant said he was a lawyer, that would be sufficient, without proving furthermore that he made the representation that "he could plead the case of James M. Addison, charged with vagrancy in court." You would not have to prove all that was alleged, but any one statement set forth, provided it was a material statement, and provided that the party to whom same was made relied upon it, and was induced to sign the alleged instrument by relying on such statement. If the state proves, beyond a reasonable doubt, that any one of these separate alleged false statements, either that he said he was a lawyer, or that he could plead the case of James M. Addison, charged with vagrancy, in court, or that he, Jacob L. Addington, was an attorney at the Birmingham bar and was authorized to defend cases in Birmingham, Ala.; in other words, if the evidence proved any one of those three alleged false statements, it would be sufficient to make out a charge of false pretense, provided you believed beyond a reasonable doubt that the defendant had at the time an intent to injure or defraud, and furthermore that Mrs. Rachel Woodruff signed the instrument described on account of that false statement, and was--and that that was the controlling inducement or controlling cause that moved her to sign it, and provided, furthermore, that that occurred in this county, and within three years next preceding the finding of the indictment. Of course, it must have occurred within that period in order to be actionable, because, if it did not happen within three years before the indictment was found, it would be barred by the statute of limitations, and it must have been in this county. So those are facts you have to find from the evidence in this case, after considering all

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