McKee v. State

• Decision Date: 27 June 1934
• Docket Number: 4 Div. 68.
• Citation: 26 Ala.App. 208,155 So. 888
• Parties: McKEE v. STATE.
• Court: Alabama Court of Appeals

155 So. 888

26 Ala.App. 208

McKEE v. STATE.

4 Div. 68.

Court of Appeals of Alabama

June 27, 1934

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

J. O McKee was convicted of obtaining personal property by false pretense, and he appeals.

Reversed and cause remanded.

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

Thos. E. Knight, Atty. Gen., for the State.

RICE Judge.

Appellant was convicted of the offense of obtaining personal property in value more than $25, by "false pretense." Code 1923, §§ 4131, 4905.

The indictment followed the form prescribed by the Code, and was not subject to demurrer. Code 1923, §§ 4556(58), 4527. The fact that in each count several matters were alleged as false pretenses, the falsity of some of which constituted "false pretense" within the statute, and of others of which did not, is no cause, it seems-even if appellant's demurrers had taken the point-to hold otherwise than we have just announced, as to the indictment not being defective. 11 R. C. L. 858, § 41. The averments as to those (pretenses) not within the statute will be treated as surplusage, unless they are descriptive averments (Ib.; Addington v. State, 16 Ala. App. 10, 74 So. 846, 851); the law being that "where an indictment for obtaining money (or property) under false pretenses alleges several separate pretenses, proof of any one of the (material) pretenses alleged is sufficient to support a conviction." Ib.; 11 R. C. L. 863, § 46.

In the instant case it was alleged in the first count of the indictment-the other (and only other) being similar, except for the obtaining of a different amount-that appellant, jointly with another, not on trial (Charley v. State, 204 Ala. 687, 87 So. 177), did falsely pretend to B. H. Baker, with intent to defraud, "that certain lots of land which they then and there sold to the said B. H. Baker, were high and dry and that they were situated in what they termed Gulf View subdivision of Hudson Florida and that said subdivision had a one hundred and forty-five acre frontage on the Gulf; that said subdivision was within a stones throw of the world's largest sponge fishery and was in or immediately adjoining the town of Hudson Florida and that said town of Hudson was a town of from five hundred to seven hundred people; that said subdivision had been surveyed and platted and the plat recorded in the office of the Clerk of the Circuit Court of Pasco County at Dade City Florida and also in the Probate office of Montgomery County Alabama; that F. G. Salter and H. F. Lee were members of the Salter-McKee Development Company, and by means of such false pretense, obtained from the said B. H. Baker a check of the value of six hundred dollars."

A careful examination of the testimony offered on behalf of the state-none being offered by appellant-leads us to conclude that there was evidence of a "substantial" nature (Ex parte Grimmett [Ala. Sup.] 152 So. 263), though we confess it seems to us not much more than a "scintilla" (Grimmett v. State [Ala. App.] 152 So. 262), supporting at least one, if not more, of the apparently material allegations (pretenses) of the indictment. So we would not say that it was error to refuse to give to the jury appellant's written, requested, general affirmative charge to find in his favor; and, the testimony being undisputed, we hesitate to say that his motion to set aside the verdict and grant him a new trial should have been granted. (We say "hesitate to say," because were it not for the fact that the judgment of conviction must be reversed on other grounds, we would enter more intensely upon the process of weighing its slight supporting testimony in the light of such analysis as we could make of the holding by the Supreme Court in Ex parte Grimmett, supra. And this, despite the fact that the same is without dispute. Ib.

But errors are apparent.

In the first place, three photographs, marked Exhibits B, C, and D, showing beautiful tropic, or semitropic, views, were allowed, over appellant's objection and exception, to be introduced in evidence. These were not shown to have any connection whatever with any allegation contained in the indictment; and, in the face of the utterly immaterial, though admitted without objection, testimony by the witness Baker (who complained of being defrauded) that he had "never received a deed to the property he bought," and in the face of the fact which we believe we may judicially know (everybody else does) that the transaction occurred during a period of wild, frantic, speculation on the part of a lot of Alabama people in Florida "lots," we are persuaded, and hold, that the admission of these photographs in evidence was prejudicial to appellant. They vivified to the jury what Baker "didn't get," though in a way that was immaterial to the charge on which appellant was on trial. Their admission was error.

In the next place we think, and hold, that it was prejudicial error to overrule appellant's objection to the question to the witness Baker, to wit: "Well, tell the jury what, if anything, this defendant told you concerning any Florida real estate at that time?" The time referred to was the occasion of the purchase by Baker of the "certain lots"-definitely described in the testimony-mentioned in the indictment.

It is our view that only the "pretenses" alleged in the indictment (and material pretenses, at that) could be, properly, the subject of testimony; and that whatever appellant might have said to the witness about " any Florida real estate"-not confined to that referred to in the charges...