Eaton v. State

• Decision Date: 12 March 1918
• Docket Number: 5 Div. 268
• Citation: 16 Ala.App. 405,78 So. 321
• Parties: EATON v. STATE.
• Court: Alabama Court of Appeals

78 So. 321

16 Ala.App. 405

EATON v. STATE.

5 Div. 268

Court of Appeals of Alabama

March 12, 1918

Appeal from Circuit Court, Chilton County; Leon McCord, Judge.

Jim Eaton was convicted of false pretense, and he appeals. Affirmed.

Middleton & Reynolds, of Clanton, for appellant.

F. Loyd Tate, Atty. Gen. and Emmett S. Thigpen, Asst. Atty. Gen., for the State.

BROWN P.J.

Where there is a sale of goods to be paid for in cash on delivery payment and delivery are concurrent acts, and payment is a condition precedent to passing title to the vendee. And if the goods are put into the possession of the buyer on the understanding or agreement that he will make immediate payment, and he fails or refuses to do so, the title does not pass, and the seller may reclaim the goods. Shines v Steiner, 76 Ala. 458; Harmon v. Goetter, 87 Ala. 325, 6 So. 93; Drake v. Scott, 136 Ala. 261, 33 So. 873, 96 Am.St.Rep. 25; 11 Enc.Dig.

We approve the following utterances taken from the dissenting opinion in Addington v. State, 74 So. 859:

"In order to constitute the offense denounced by our statute, there must be a false statement relating to some existing or past fact, calculated to deceive, or the use of a false symbol or token calculated to deceive, and which misled and caused the party defrauded to part with a thing of value. Code 1907, §§ 6920, 6921; Wilkerson v. State, 140 Ala. 155, 36 So. 1004; Pearce v. State, 115 Ala 115, 22 So. 502; Colly v. State, 55 Ala. 85; Woodbury v. State, 69 Ala. 242, 44 Am.Rep. 515; Young v. State, 155 Ala. 145, 46 So. 580; Cowan v. State, 41 Tex.Cr.R. 617, 56 S.W. 751; Commonwealth v. Drew, 19 Pick. (Mass.) 179. Mere 'conduct and course of dealing,' unaccompanied by the employment of a false representation of fact by word or the employment of a false symbol or token, although sufficient to warrant a conclusion reached by the party parting with the thing of value, is not sufficient to bring the case within the statute. Such construction of the statute would be a strict construction against the accused, which is contrary to the policy of the law (2 Bishop's Criminal Law, § 415) and would subject him to criminal liability on an erroneous conclusion of the other party to the transaction. Cases are numerous where false tokens--material evidences of the existence of a fact--were employed to assist in accomplishing the fraudulent purpose, and a conviction sustained. Such was the leading case of Rex v. Barnard, 7 C. & P. 784, where the accused, by appearing in the garb of an Oxford University student, was enabled to fraudulently obtain goods on credit. However, in that case the report shows that the accused 'stated that he belonged to Magdalene College'; and likewise in the following cases the accused employed a symbol or token to aid his unlawful purpose: Regina v. Bull, 13 Cox, Cr.Law Cas. 608; State v. Bourne, 86 Minn. 432, 90 N.W. 1108; Taylor v. Commonwealth, 94 Ky. 281, 22 S.W. 217; State v. Hammelsy, 52 Or. 156, 96 P. 865, 17 L.R.A. (N.S.) 244, 132 Am.St.Rep. 686; State v. Foxton, 166 Iowa, 181, 147 N.W. 347, 52 L.R.A. (N.S.) 919, Ann.Cas. 1916E, 727; Commonwealth v. Mulrey, 170 Mass. 103, 49 N.E. 91; Brown v. State, 37 Tex.Cr.R. 104, 38 S.W. 1008, 66 Am.St.Rep. 794; Commonwealth v. Beckett, 119 Ky. 817, 84 S.W. 758, 68 L.R.A. 638, 115 Am.St.Rep. 285. In State v. Goble, 60 Iowa, 447, 15 N.W. 272, the opinion states that: 'The evidence shows that defendant represented by his words and action that he was Backer, and did not apply for payment as the agent or servant of Backer.'

"The cases noted above cited in 19 Cyc. 402, to sustain the proposition, 'A false pretense or representation may be made by act as well as by word'; but an examination of these authorities

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