Couch v. State

• Decision Date: 12 December 1944
• Docket Number: 4 Div. 867.
• Citation: 20 So.2d 57,31 Ala.App. 586
• Parties: COUCH v. STATE.
• Court: Alabama Court of Appeals

20 So.2d 57

31 Ala.App. 586

COUCH v. STATE.

4 Div. 867.

Alabama Court of Appeals

December 12, 1944

J. N. Mullins, Jr., of Dothan, for appellant.

Wm. N McQueen, Acting Atty. Gen., and Frank N. Savage, Asst. Atty Gen., for the State.

The indictment alleges that defendant 'did falsely pretend to H. H. Ader, with intent to defraud, that his name was R. E Wright, and that he was the owner and payee of a certain check or draft drawn on the First National Bank of Hartford Alabama, by C. M. Segrest on September 2, 1943, for the sums of $105.55, payable to R. E. Wright, and that the endorsement 'R. E. Wright' on the back of said check or draft was his endorsement or signature, and by reason of such false pretense, and the transfer of said check or draft to H. H. Ader, obtained from the said H. H. Ader' the property and money described, 'against the peace and dignity of the State of Alabama.'

CARR Judge.

R. E. Wright held a check in the amount of $105.55, made payable to him and drawn by C. M. Segrest. Mr. Wright endorsed the check and delivered it to Mr. Wilbur Stewart, a clerk for Spann-Marchman Hardware Company in Dothan, Alabama, in payment of an account with said company. Mr. Stewart lost the check while engaged about his duties in the store and before he had an opportunity to deposit same in the cash register. When he discovered the misplacement, he immediately notified Mr. Wright, who in turn contacted Mr. Segrest, and a stop payment order was given to the bank on which the check was drawn.

According to the testimony, when the check was next located, appellant presented it to Mr. Ralph Hynson, a clerk in the H. H. Ader Clothing Company, a business establishment located also in the city of Dothan. Appellant stated to both Mr. Hynson and Mr. Ader at the time of presentation that his name was R. E. Wright and the endorsement on the back of the check was that of his own signature. This statement and identification were not in fact true, as disclosed by the evidence. The check was then and there honored and with the proceeds of same appellant bought a suit of clothes, a hat, and received $65.77 in change. When the Ader Clothing Company deposited the check, payment was refused because of the notification previously given the bank by Mr. Segrest.

Appellant was indicted and convicted for obtaining property by false pretenses. Title 14, Sec. 209, Code of 1940.

The indictment substantially follows the Code form for an offense under the above Code section and is, therefore, sufficient. Title 15, Sec. 259, Form No. 60, Code of 1940; Jones v. State, 28 Ala.App. 254, 182 So. 402; Foxx v. State, 26 Ala.App. 146, 154 So. 912.

On the trial of the cause, appellant did not testify or introduce any evidence in his behalf. The general affirmative charge with hypothesis was refused him.

'The facts which constitute the crime of false pretenses are, first, the pretenses; second, their falsity; third, the fact of obtaining the property by reason of the pretenses; fourth, the knowledge on the part of the accused of their falsity; fifth, the intent to defraud.' 16 Words and Phrases, Perm. Ed., p. 145; Young v. State, 155 Ala. 145, 46 So. 580; Woodbury v. State, 69 Ala. 242, 44 Am.Rep. 515.

The analysis of the tendencies of the evidence we have hereinabove set out clearly warrants a conclusion that a jury question was presented as to proof of each of the elements of the offense charged in the indictment, and the refusal of the general affirmative charge was therefore without error. Young et al. v. State, 22 Ala.App. 443, 116 So. 709; Sims v. State, 99 Ala. 161, 13 So. 498; Pearce v. State, 26 Ala.App. 492, 164 So. 114.

During the progress of the trial in the lower court, several objections were interposed by appellant's counsel to the introduction of evidence. We have carefully...