Pritchett v. State

• Decision Date: 30 June 1922
• Docket Number: 3 Div. 424.
• Citation: 18 Ala.App. 628,93 So. 341
• Parties: PRITCHETT v. STATE.
• Court: Alabama Court of Appeals

93 So. 341

18 Ala.App. 628

PRITCHETT v. STATE.

3 Div. 424.

Court of Appeals of Alabama

June 30, 1922

On Rehearing, June 30, 1922.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

W. T Pritchett, alias, was convicted of false pretense, and he appeals. Affirmed.

M. D. Brainard, of Montgomery, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

The indictment in this case contained two counts, and in each count charged the defendant with false pretense (felony). Both counts, however, were predicated upon the same transaction.

The act complained of, as contended by the state, was that this defendant did falsely pretend to another, one W. A Brightwell, with intent to defraud, that he had on deposit with the Fourth National Bank of Montgomery, Ala., $181.50 and by means of such false pretense obtained from said Brightwell $171.50, and the evidence of the state tended to show that this defendant induced Brightwell to let him have $171.50 in cash for which he (defendant) gave Brightwell a check on said bank for $181.50, and pretended that he had that amount on deposit to his credit in said bank. The state's evidence further tended to show that the defendant had no account whatever with the bank, and had never had on deposit in said bank any money to his credit. The check given was worthless. Other evidence of the state tended to prove each allegation in the indictment is charged.

The defendant, on the other hand, denied that he made the statement as to having the money on deposit in the bank. He denied, also, that he received any money at all from Brightwell, and insisted that the check given by him to Brightwell was in payment for 33 gallons of whisky at $5.50 per gallon. His testimony and that of his witnesses tended to sustain his contention. Thus a sharp conflict in the evidence was created, and it was for the determination of the jury as to which contention was true. There was a general verdict of guilty as charged, and from the judgment of conviction defendant appeals.

No objection by demurrer or otherwise was made to the indictment. No exceptions were reserved to the oral charge of the court, nor were any special charges refused to the defendant. Throughout the entire trial but one exception was reserved, and this related to the ruling of the court upon the testimony when Brightwell, the alleged injured party, was being examined in rebuttal. In this ruling there was no error. It was within the discretion of the court to permit this witness to testify to the facts which tended to rebut the defendant's testimony; not only in the court's discretion, but was permissible under the elementary rules of evidence.

The motion for a new trial is not presented for review. Acts 1915, p. 722; Crawley v. State, 16 Ala. App. 545, 79 So. 804; Powell v. Folmar, 201 Ala. 271, 78 So. 48.

The record is free from error. Let the judgment of the circuit court stand affirmed.

Affirmed.

On Rehearing.

In order to grant the earnest appeal of counsel for appellant in the application for a rehearing in this cause, it would be necessary for this court to enlarge its jurisdiction and without authority of law assume original jurisdiction of the matters involved. This, of course, we cannot do, as the jurisdiction of this court is appellate only, and the review of cases before us is limited to those matters upon which action or ruling at nisi prius was invoked and had. Such is the settled rule, on principle and in practice, by which this court is bound. Woodson v. State, 170 Ala. 87, 54 So. 191; Montgomery v. State, 17 Ala. App. 469, 472, 86 So. 132 (on rehearing); Ex parte Montgomery, 204 Ala. 389, 85 So. 785; McPherson v. State, 198 Ala. 5, 73 So. 387; Code 1907; § 6234. In other words it is the duty of an appellate court to search the record proper for error apparent...