Jones v. State

Decision Date19 January 1937
Docket Number5 Div. 9.
Citation182 So. 402,28 Ala.App. 254
PartiesJONES v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied May 18, 1937.

Reversed on Mandate June 21, 1938.

Appeal from Circuit Court, Coosa County; W. W. Wallace, Judge.

Henry C. Jones was convicted of obtaining property by false pretense, and he appeals.

Reversed and remanded.

Certiorari granted by Supreme Court in Jones v. State, 182 So 404.

Lawrence F. Gerald, of Clanton, for appellant.

A. A Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty Gen., for the State.

RICE Judge.

We are not unmindful of our duty under the provisions of Code 1923,§ 3258, but appellant is represented here by able counsel; and the brief filed by him, in our opinion, treats every question raised on the trial below which is worthy of discussion by us. Hence no others will be noticed in this opinion.

Appellant's case was submitted to the jury on an indictment containing several different "counts"--each, admittedly, in Code form--some charging the offense of "obtaining property by false pretenses" (Code 1928, § 4131); and some charging the offense of "obtaining signature by false pretenses" (Code 1928,§ 4135). Code 1928, § 4556 forms 58 and 59.

There was a general verdict of "guilty as charged in the indictment."

Upon this verdict appellant was sentenced to a term of imprisonment in the penitentiary of "not less than nine years nor more than ten years." Code 1928, §§ 5278, 5267 and 5268.

The testimony adduced on the trial tended to support, in the way requisite to sustain a conviction, only the first three counts of the indictment. Under these circumstances, we deem it so well settled as not to require the citation of authority that the verdict, as returned, will be referred to these three counts--or, indeed, to any one of same--for its validity.

Appellant's counsel, while admitting that the testimony "followed and tended to prove the charges made in the indictment (the three counts mentioned)," argues very vigorously that the said counts were subject to the demurrers which he interposed, and that they were improperly left in the case and submitted to the jury.

As above stated, each of said counts was in the Code form. But the defect claimed in the forceful argument submitted here by appellant's counsel is in the "pretense" detailed in each of said counts.

To illustrate, we quote (and italicize) below the "pretense" alleged in count 1, counts 2 and 3 being, as we read them, in all respects similar. Said count 1, essentially to this discussion, alleged that "Henry C. Jones * * * did falsely pretend to Mrs. Artie Mitchell * * * with intent to defraud, that he the said Jones had advised one W. R. Dean, who was at the time of such false pretense to the said Mrs. Artie Mitchell known to her to be a banker at Goodwater Alabama, to sell certain shares of stock owned by the said W. R. Dean in the Alabama Power Company, and that the said W. R. Dean followed such advise (sic) by the said Jones by selling his said shares of stock in the said Alabama Power Company; and, by means of such false pretense, the said Henry C. Jones did obtain from the said Mrs. Artie Mitchell the two Stock Certificates, one for six shares, the other for nine shares, of stock in the Alabama Power Company, then owned by the said Mrs. Artie Mitchell and herein above mentioned, the same being of the value of, to-wit, $900.00."

As said by Mr. Justice Head, in the opinion in the, we believe leading case of Meek v. State, 117 Ala. 116, 23 So. 155, 156: "We do not understand that the indictment for obtaining goods by false pretenses must necessarily show that the alleged false pretense was capable of inducing the party to whom made to part with his goods, further than the allegation that by means of the pretense the goods were obtained. If the pretense alleged is of an existing or past fact or...

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6 cases
  • Gayden v. State, 3 Div. 722
    • United States
    • Alabama Supreme Court
    • May 12, 1955
    ...not within the statute will be treated as surplusage, unless they are descriptive averments. * * *' It was held in Jones v. State, 1937, 28 Ala.App. 254, 182 So. 402, another false pretense case, that the counts in the indictment followed the code form and the demurrers to each were properl......
  • Yeager v. State, 4 Div. 593
    • United States
    • Alabama Court of Criminal Appeals
    • September 9, 1986
    ...his property is insufficient and will not support a conviction. Meek v. State, 117 Ala. 116, 23 So. 155, 157 (1898); Jones v. State, 28 Ala.App. 254, 182 So. 402 (1937), cert. granted, 236 Ala. 30, 182 So. 404 Recently, it has been held that reliance is an element of theft by deception, the......
  • Brickley v. State
    • United States
    • Alabama Supreme Court
    • October 8, 1970
    ...tended to support, in the way requisite to sustain a conviction, only the first three counts of the indictment. . . ..' Jones v. State, 28 Ala.App. 254, 256, 182 So. 402.' In reversing the Court of Appeals, this court said: 'The opinion shows counts 4, 5, and 7 were not supported by evidenc......
  • Gayden v. State, 3 Div. 970
    • United States
    • Alabama Court of Appeals
    • August 31, 1954
    ...to a good count in the indictment even if the evidence supports its averments. Hawes v. State, 216 Ala. 151, 112 So. 761; Jones v. State, 236 Ala. 30, 182 So. 404; Griffin v. State, 22 Ala.App. 369, 115 So. 769; Crow v. State, 35 Ala.App. 606, 51 So.2d These three positions are posed in app......
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