O'Connor v. State , 30 Ala. 9 ( 1857 )

RICE, C. J.

The defendant is indicted under section 3142 ofthe Code, for obtaining from JolmL. Hays ahorse of the value of one hundred dollars, by a false pretense, and with intent to defraud. The first count of the indictment is in the form prescribed by the Code, and, of course, must be deemed sufficient.

The ingredients of the offense are, the obtaining of the horse by the false pretense, and the intent to defraud; and there cannot be a conviction according to law, unless the intent and the pretense set out in the indictment are proved.

There are cases in which it is not necessary to prove the whole of the pretense charged; as, where the part proved is a separate and independent pretense, and sufficient in point of law; or, where the part in which the variance between the allegation and proof occurs, may be rejected as surplusage. But in a case like the present, where only a single pretense, not susceptible of division into separate or independent pretenses, is stated, any material variance, between the pretense alleged and that proved, is fatal to the prosecution. A pretense by the defendant", that he “had in Macon, Georgia, the sum of seven thousand dollars,” is materially variant from a pretense that he “had seven dollars less than seven thousand dollars in a bank in Macon.” To avoid objections for variances of this kind, the offense ought to be stated differently in different counts, to correspond with the various phases of the case, as disclosed by the proof at the command of the grand jury or the prosecuting officer. — Waterman’s Archbold’s Cr. Pl. 470 to 471-2.

It is not enough to prove that the pretense of the defendant was false, and that he thereby obtained the horse; but, in addition thereto, it is essential to prove, to the satisfaction of the jury, that at the time he intended to defraud. — Rex v. Williams, 7 Carrington & Payne, 354; 3 Waterman’s Archbold’s Crim. Pl. 471-3; Barclay v. Dixon, 22 Ala. Rep. 380; Ogletree v. The State, 28 Ala. Rep. 693; The State v. Merrick, 19 Maine R. 398.

It is a familiar rule of criminal law, that if tbe jury em tertain a reasonable doubt of tbe existence of any fact which is one of tbe ingredients of tbe offense charged, they ought to acquit tbe party charged.

Applying tbe views above expressed to tbe rulings of tbe court below, we think it erred in tbe charge given, and in refusing tbe 3d, 4th, and 5th charges asked by tbe defendant. But there was no error in refusing tbe 1st and 2d charges asked by him. Each of them claims tbe acquittal of tbe defendant, upon a supposed variance between tbe allegation and proof, as to tbe pretense. That supposed variance, however, does not exist, if tbe defendant meant to be understood, and was understood, as pretending or assertingthat tbe bank referred to by him was “in Macon, Georgia.”

There was evidence tending to show that be meant to be so understood, and that be was so understood. And tbe defendant, therefore, was not entitled to claim bis acquittal, for tbe cause alleged in tbe 1st and 2d charges asked by him, without giving the jury an opportunity to find that be meant to be understood, and was understood, as asserting that tbe bank referred to in tbe pretense was in Macon, Georgia.

For tbe errors above pointed out, tbe judgment is reversed, and tbe cause remanded. Tbe defendant must remain in custody, until legally discharged.