Elmore v. State , 138 Ala. 50 ( 1902 )

SHARPE, J.

By the indictment defendant was charged with obtaining money from one Blank by means of’ falsely and fraudulently pretending that he had a bale of cotton at a Montgomery ginnery. On the trial there was evidence tending to show defendant applied to Blank for a loan of money and showed him cotton, which he said was a sample of a. bale of cotton belonging to him and stored in the name of another at a ginnery indicated by a paper he exhibited, which paper he said Avas a cotton receipt. The paper purported to be a statement having printed thereon, “No. 5474. Round Bale- Ticket. Alabama Cotton Oil Co., Montgomery Ginnery.” ElseAvhere on the face of this paper were the printed Avords, “This is not a cotton receipt,” and other words _ mentioning “seed cotton,” “lint cotton,” “'cotton seed” and “ginnery charges.” EAddeuce also tended to ®1ioav Blank did not read this paper but that in reliance upon defendant’s representation he loaned defendant the money and by Avay of .security took from defendant the paper he called a cotton receipt, and therefor, gmve the defendant a paAvn ticket, purporting to be issued by “Capital City Loan Company,” under Avh-ich name Blank conducted business. A Avitness for the State gave testimony tending to show that at Blank’s instance he went to the ginnery mentioned in the paper called a cotton receipt, and that “the bale of cotton Avas not there.” Against a general objection of the defendant the court alloAved this witness to answer the question, “Hid yon go to that- ginnery and get the cotton?” Obviously this action of the court Avas proper. An exception Avas reserved because an objection to a question asked a Avitness for the State on cross-examination was sustained. Thereafter the court referring to this matter said to defendant’s counsel, “On further consideration the witness may answer the question.” Defendant’s counsel declined to again ask the question, whereupon the court asked, and the witness answered it. If the first ruling on this objection was erroneous it was by the second ruling cured, and rendered harmless to defendant.

From the evidence above referred to it was open ,to the jury to find that the loan was made in reliance on verbal misrepresentation of the defendant as to his ownership of cotton and as to the character of the paper labeled “Bound Bale Ticket,” and that the misrepresentations by themselves, or together with the general appearance of the paper, were such as- might have caused one in the exercise of reasonable prudence to lend the money without careful inspection of the paper. Hence the question of defendant’s guilt did not necessarily depend on whether Blank used diligence to inform himself of the character of that paper as is assumed by charge 1.

With reference to charge 2 it is enough to say, the evidence was not such as if believed, required a verdict of not guilty.

In the absence of evidence to show that “Capital City Loan Co.” ivas other than a name used by Blank, or that the money was obtained from any one other than Blank, there was nothing upon which to predicate a variance between the evidence and the indictment, in the particular indicated by charge 3.

No error appearing in the record, the judgment will be affirmed.