Mitchell v. State

• Decision Date: 14 December 1901
• Citation: 65 S.W. 935,70 Ark. 30
• Parties: MITCHELL v. STATE
• Court: Arkansas Supreme Court

65 S.W. 935

70 Ark. 30

MITCHELL v. STATE

Supreme Court of Arkansas

December 14, 1901

Appeal from Ouachita Circuit Court CHARLES W. SMITH, Judge.

Reversed.

STATEMENT BY THE COURT.

The defendant, A. B. Mitchell, was indicted by the grand jury of Ouachita county for the crime of false pretenses. The body of the indictment is as follows: "The said defendant on the first day of October 190 , in Ouachita county, Arkansas, did unlawfully, falsely, fraudulently and feloniously obtain from C. T. Gordon a certain bill of sale for two suits of clothes given by Sam Adair to H. B. Nicholson, special constable for Lafayette township, by falsely and feloniously stating to said C. T. Gordon that the cost in the case of the State v Sid. Avera had all been arranged with Captain Burkett, and that he wanted to borrow the bill of sale, which said statement was false, and was relied upon and believed by the said C. T. Gordon; that said bill of sale was of the value of forty dollars, and was given to said special constable to secure the cost in the said case of the State v. Sid. Avera against the peace and dignity of the State of Arkansas.

"T J. GAUGHAN, Prosecuting Attorney."

The defendant was tried, convicted and sentenced to be confined in the penitentiary at hard labor for one year.

Reversed and remanded.

George W. Murphy, Attorney General, for appellee.

OPINION

RIDDICK, J., (after stating the facts.)

This is an appeal from a judgment of conviction for false pretenses. The false pretense alleged in the indictment is that the defendant stated to C. T. Gordon "that the cost in the case of the State v. Sid Avera had all been arranged with Captain Burkett. By this false pretense it is alleged that the defendant procured from Gordon a bill of sale for two suits of clothes, which bill of sale had been deposited as security for the costs.

The case in which the bill of sale was given as security for costs was a prosecution begun before a justice of the peace against Sid. Avera for an assault and battery upon Sam Adair. Adair gave the bill of sale for two suits of clothes to secure the costs. The case was appealed to the circuit court and the justice of the peace sent the bill of sale, with transcript and other papers, to the clerk of the circuit court. On the trial in the circuit court Sid. Avera was acquitted, and Adair became liable for the costs, to secure which he had given the bill of sale. Adair thereupon made an arrangement with John Burkett by which Burkett agreed that he would pay all the costs for Adair. After he had made this arrangement with Burkett, Adair, who was a negro, went to the defendant, who was a negro preacher and friendly to Adair, and sent him to the clerk of the circuit court to get the bill of sale, so that he could get his suits of clothes back. Gordon, the prosecuting witness, was clerk of the circuit court. He testified that the defendant came to him, and told him the costs in the justice's court had been settled, and asked for the bill of sale; that the witness then inquired, "What about my costs?" and defendant replied, "That has all been arranged with Captain Burkett." Gordon further testified that thereupon he delivered the bill of sale to the defendant, but that his costs were never paid until after the defendant was indicted. On cross-examination this witness was asked whether the defendant had not stated to him that the costs would be arranged by Captain Burkett, instead of had been arranged? To this question he replied: "I would not be sure whether he said 'had' or 'would be.'" That is, as we understand the witness, the defendant obtained the bill of sale by stating to him either that the costs had been arranged or would be arranged by Captain Burkett, witness not being certain which statement was made. But the indictment charges that the defendant obtained the bill of sale by falsely stating that the costs 'had all been arranged with Captain Burkett,'" and proof that the defendant stated either that the costs had been or would be arranged was not sufficient. To constitute a false pretense there must be a false and fraudulent representation of a fact as existing or having taken place by one who knows it not to be true. State v....