Sealey v. State

• Decision Date: 04 October 1928
• Docket Number: 3 Div. 862
• Citation: 218 Ala. 167,118 So. 233
• Parties: SEALEY v. STATE.
• Court: Alabama Supreme Court

118 So. 233

218 Ala. 167

SEALEY v. STATE.

3 Div. 862

Supreme Court of Alabama

October 4, 1928

Certiorari to Court of Appeals.

Charlie Sealey was convicted of obtaining property by false pretenses and appealed to the Court of Appeals. Judgment of conviction being there affirmed (118 So. 232) defendant brings petition to the Supreme Court for certiorari. Writ granted; reversed and remanded.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BROWN J.

The petitioner was tried under an indictment charging that he "falsely pretended to G.F. Wingard, with intent to defraud, that he had $69 in the Bank of Ramer, Alabama, and by means of such false pretenses obtained from the said G.F Wingard five head of cattle of the value of $69."

The finding of fact by the Court of Appeals that the evidence adduced on the trial tended to sustain the charge and warranted a finding by the jury that the petitioner was guilty, is conclusive on this review, that the evidence was sufficient to sustain the verdict, and the ruling of the Court of Appeals touching the motion for new trial, in so far as it involved this finding of fact, under our decisions, is not subject to review. Postal Telegraph Co. v Minderhout, 195 Ala. 420, 71 So. 91; Ex parte Towles, re Cleveland, v. Towles, 213 Ala. 129, 106 So. 60; Thomasson v. State, 215 Ala. 315, 110 So 564.

Paramount Coal Co. v. Williams, 214 Ala. 394, 108 So. 7, cited by petitioner, is inapt as an authority here. That was a proceeding under the Workmen's Compensation Law in which the statute as construed authorizes a bill of exceptions in which the evidence is presented to this court on its own record. Ex parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 92 So. 458.

The statement of fact in the opinion of the Court of Appeals, that "he represented to said Wingard that he had that amount in the Bank of Ramer, and gave him a check upon said bank for the sum of $69. The undisputed evidence is that he did not have the money in the Bank of Ramer as he pretended to Wingard, and as a result the check was dishonored and has never been paid. Wingard never received the money or (nor) did he get his cattle back," clearly shows that this charge is not predicated on the mere symbol or token involved in the giving of the check, but upon a previous or contemporaneous representation or statement to Wingard that he had the money in the bank sufficient to meet the check. This representation, and the guilty knowledge that it was false, constitute the controlling element of the offense.

The fact, therefore, that the defendant gave checks to different people, to whom or when does not appear, which were not honored by the bank, was without legitimate tendency to prove that the particular representation here involved was fraudulently made with guilty intent.

We are not unmindful of the fact that the issuance of a check on a bank, without explanation to the contrary, may in itself constitute a false pretense, token, or symbol that the person issuing it has money in the bank sufficient to pay it. Eaton v. State, 16 Ala.App. 405, 78 So. 321. But here it was not shown that the checks ...