Smith v. State, 8 Div. 653

CourtAlabama Court of Appeals
Writing for the Court[22 Ala.App. 372] RICE, J.
Citation22 Ala.App. 371,115 So. 770
PartiesSMITH v. STATE.
Docket Number8 Div. 653
Decision Date13 March 1928

Appeal from Circuit Court, Colbert County; Charles P. Almon, Judge.

W.K. Smith was convicted of obtaining money by false pretense, and he appeals. Reversed and remanded.

J. Foy Guin, of Russellville, for appellant.

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


It was charged in the indictment that appellant, "with intent to defraud, falsely pretended to W.R. Headley that he had a shop of tinner's tools and machinery, etc., and that said property was free from all incumbrance except to the amount of $350.00, and by means of such false pretense obtained from the said Headley $350.00, etc."

The only effort by the state to prove the falsity of appellant's representation that the incumbrance on the "shop of tinner's tools," etc., did not exceed $350, it appearing without dispute that he did have the said property, was by the introduction of a certain paper executed by appellant and one Yates, in which a "vendor's lien" for considerably more than $350 was reserved by Yates on property therein conveyed by Yates to appellant, described only as "certain tools and equipment described and set forth in a daybook Exhibit A, and signed by the parties hereto as Exhibit A to this contract, and made a part hereof as fully and completely as if copied herein."

As between Yates and appellant, this description might have meant something. But here, as it was sought to be used, where the "daybook" mentioned was not in evidence, it was meaningless and of no effect. The said paper should have been excluded from the evidence. Wood et al. v. West Pratt Coal Co., 146 Ala. 479, 40 So. 959.

Other questions raised will not likely occur on another trial. For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.

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2 cases
  • Griffin v. State, 7 Div. 401
    • United States
    • Alabama Court of Appeals
    • March 13, 1928
    ...... complete offense under the law. May's Case, 89 Ala. 37, 8. So. 28; Hornsby v. State, 94 Ala. 55, 10 So. 522. . . Count. 4, in the indictment in ......
  • Murphy v. State, 8 Div. 635
    • United States
    • Alabama Court of Appeals
    • March 13, 1928

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