Johnson v. State , 29 Ala. 62 ( 1856 )

RICE, C. J.

Obtaining any personal property from another, exceeding twenty dollars in value, by false pretenses, with intent to defraud him, is, in this State, a felony, and punishable by imprisonment in the penitentiary, not less than two, nor more than five years. — Code, §§ 3071, 3142. The crime of larceny, when committed by stealing from the person of another, is also a felony, and punishable by imprisonment in the penitentiary, not less than three, nor more than six years. — Code, § 3172.

These offenses are included in the indictment, in distinct counts, and are alleged to have been committed by the defendant; and because they are thus set forth, the defendant demurs to the indictment as a whole, and in support of his demurrer contends tha,t there is a misjoinder of counts.

We think the authorities justify us in holding, that two offenses, committed by the same person,, may be included in the same indictment, in different counts, where they are of the same general nature, and belong to the same family of crimes, and where the mode of trial and nature of the punishment are also the same, although they may be punishable with differént degrees of severity. — The King v. Johnson, 3 Maule & Selwyn, 550; Waterman’s Arch. Cr. Pl. 94, 95, and notes; The State v. Haney, 2 Dev. & Batt. Rep. 390; State v. Williams, 9 Iredell, 140; Carlton v. The Commonwealth, 5 Metc. R. 532; Josslyn v. The Commonwealth, 6 ib. 236; Kane v. The People, 8 Wend. R. 203; The People v. Rynders, 12 ib. 425; The United States v. Peterson, 1 Woodbury & Minot’s Rep. 305.

The offenses described in the several counts of the indictment in this case, are certainly of kindred character. They belong to “the same family of crimes”; and, under the rule above announced, may be joined in tbe same indictment, in several counts. Such joinder 'constitutes no ground for a demurrer to tbe indictment, nor for a motion in arrest of judgment.

We cannot revise the refusal of tbe motion made by defendant, “to require tbe solicitor to select on which count or counts of tbe indictment he. would proceed.”' If there be no other r.eason why we will not revise that refusal, it is enough that no objection or exception was made or taken to that ruling of the court.- — Gager v. Gordon, at the present term.

No man can be criminally affected by the acts or declarations of a stranger; but, where a privity and community of design has been established, the acts, declarations, and conduct of all the associates, in furtherance of their common unlawful purpose, are evidence against each of them. It may be admitted, that, for want of evidence of such privity and community of design, the declarations of Anderson were not admissible, at the time they were admitted by the court; but conceding this to be so, yet immediately afterwards, and during the trial, sufficient evidence of such privity and community of design was introduced,, and this cured the error of admitting the declarations of Anderson, and made them clearly admissible. Lawson v. The State, 20 Ala. Rep. 65.

It was material to prove an intent on the part of the defendant and Anderson, to defraud the prosecutor, Thomas, in obtaining from him .his property. Evidence of privity and a community of design between the defendant and Anderson having been introduced, as well as the circumstances under which Thomas had been deprived by their joint performances of his property, the evidence in relation to the check and the refusal of the Bank to pay it, certainly tended to prove the fraudulent intent on the part of the defendant and his associate, Anderson, and was very properly admitted.

The authorities cited in the third paragraph of this opinion show, that there is no error in the charge of the court, nor in overruling the motion in arrest of judgment. Whether the jury ought to have found the defendant guilty on all the counts, as they have done, is a question with which we have nothing to do. We do not revise, their action in that particular. We have discharged our duty by revising the action and rulings of the court. And in the discharge of that duty we find no error which entitles the defendant to a reversal of the judgment of the court below. That judgment is affirmed, and the sentence pronounced in the court below must be carried into execution.