Prentice v. State, 6 Div. 13.

• Citation: 139 So. 437,24 Ala.App. 587
• Decision Date: 02 February 1932
• Docket Number: 6 Div. 13.
• Parties: PRENTICE v. STATE.
• Court: Alabama Court of Appeals

139 So. 437

24 Ala.App. 587

PRENTICE v. STATE.

6 Div. 13.

Court of Appeals of Alabama

February 2, 1932

Appeal from Circuit Court, Cullman County; Jas. E. Horton, Judge.

J. A Prentice was convicted of obtaining property by false pretense, and he appeals.

Reversed and remanded.

W. C Rayburn, of Guntersville, for appellant.

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

BRICKEN P.J.

The indictment in this case charged this appellant with the offense of obtaining property by false pretense under section 4131 of the Code 1923. The specific charge being that he did falsely pretend to E. C. Kenny, with intent to defraud, that he owned two black mules, one jersey cow, and one wagon, and that he resided, owned, and kept his property in Cullman county, Ala., and that there were no liens on his crops grown in the year 1928, and, by means of such false pretense, obtained from the said E. C. Kenny, meat, lard, flour, shoes, hardware, and dry goods of the value of $300, etc.

If the foregoing offense charged was committed at all, it was committed at the time the alleged false representations were made and the goods obtained. Subsequent actions of the accused were no part of the res gestæ, and could shed no light on the issues involved in the trial of this case. Carlisle v. State, 77 Ala. 71.

It will be noted in the indictment that the alleged false pretenses complained of were: (1) That the defendant stated he owned two black mules, one jersey cow, and one wagon; (2), that he resided, owned, and kept his property in Cullman county, Ala.; and (3) that there were no liens on his crops grown in the year 1928.

In this case, as in all criminal cases, the state was under the burden of offering evidence sufficient to prove the material allegations of the indictment to the satisfaction of the jury beyond a reasonable doubt and to a moral certainty.

The first material allegation in the indictment is quoted above, subdivision (1). In this connection the state failed to prove that the accused did not own the property therein designated at the time in question. On the contrary, the whole evidence discloses, without dispute, that he owned at the time the mules, the cow, and the wagon. There is no allegation in the indictment that he represented said property to be free from incumbrance. The court therefore committed error in allowing the state to prove that such property was covered by a former lien to one Durrough. The several exceptions in this connection were well taken and are sustained.

There appears to have been no attempt by the state to prove the alleged false pretense, to wit: "That he resided, owned and kept his property in Cullman County, Alabama," as the indictment avers. The first witness for the state, one McClendon, is the only witness who gave evidence as to this particular alleged false statement, and this witness expressly testified that he (Prentice) said "he lived in Morgan County." No evidence...