Pollock v. State , 19 Ala. App. 156 ( 1923 )

The indictment under which appellant was convicted in the circuit court contained five counts. The first and third counts charged the defendant with the crime of obtaining $500 from one J.B. Martin, by means of false pretense. The second, fourth, and fifth counts charged that he obtained the signature of J.B. Martin to a certain written instrument, by false pretense.

The first and third counts were practically in Code form, charging the defendant with violating section 6920 of the Code 1907. The second, fourth, and fifth counts were, for practical purposes, in Code form, and charged the defendant with violating section 6921 of the Code 1907. In other words, the first and third counts charged one offense in varying forms. The second, fourth, and fifth counts charged another and different offense in varying forms. The defendant was thus put upon trial for two offenses — one for obtaining $500 from J.B. Martin by false pretense; the other for obtaining his signature to a written instrument or note.

That the offense of obtaining money by false pretense and the offense of obtaining the signature to a written instrument are different offenses no argument or citation of authorities is necessary, other than sections 6920 and 6921 of the Code. The fourth count of the indictment is eliminated by nol pros.

The verdict of the jury convicted the defendant under the first and third counts, the verdict so specifying. This, of course, was an acquittal of the defendant under the second and fifth counts, as certainly so as if the jury had so specified as to these counts. Finding the defendant guilty under one or more counts of the indictment is an acquittal as to the other counts. This is too well known and uniformly settled by all the courts and text-books on the subject to require citation of authorities.

A careful examination of the record fails to disclose any evidence of the material fact charged in the first and third counts of the indictment — that the defendant obtained from J.B. Martin $500 or any other amount of money. There is some evidence in the record that he did obtain the signature of J.B. Martin to a written instrument or promissory note, as was charged in the indictment, but as to these counts the verdict of acquittal by the jury finally disposes of the offense charged of obtaining the signature of Martin to a written instrument or note.

So the result is that this record discloses that the defendant was convicted of the offense charged in the first and third counts in the indictment, without any evidence whatever to support the material allegation that he obtained from J.B. Martin the sum of $500 by means of false pretense. If it should be conceded that the defendant did by false pretense obtain the signature of Martin to a written instrument or note, and the note was subsequently paid by Martin, as to which fact there is some evidence that the note was subsequently paid by Martin to the corporation, such proof would not support a conviction for obtaining money by false pretense.

The record in this case does not disclose any question of variance as to which the defendant should have specially called the attention of the trial court as required by the rules of the Supreme Court. The record in this case presents the question of entire failure of proof as to a material allegation in counts one and three of the indictment, and not a question of variance. The mere fact that the false pretense alleged in each of the counts was practically the same in each and in all of the counts in the indictment does not prevent the offenses charged in counts 1 and 3 from being entirely different from the offenses charged in the other counts.

As conclusive proof that the offenses are different, the statute fixes different punishments. Surely it cannot be contended that a defendant could be punished on a conviction for violating section 6920 of the Code by a punishment fixed for violating section 6921, when the punishment is different. There seems to be no express decision of this court, or the Supreme Court, on the question presented by this record, though there are analogous cases as to larceny, embezzlement, forgery, etc. We find express decision, however, of the Supreme Court of North Carolina, which state has statutes very similar to the statutes of this state on the subject. The case of State v. Gibson, twice reported, first in 169 N.C. 318, 85 S.E. 7, and on appeal in 170 N.C. 697, 86 S.E. 774, is a case exactly in point. The Supreme Court of North Carolina in that case held that a charge of obtaining money by a false pretense cannot be sustained by proving the fraudulent obtaining of a signature to a promissory note.

It therefore results necessarily that the verdict and judgment of the court below is erroneous, and that the trial court should have given the affirmative charge requested by the defendant as to counts 1 and 3 of the indictment. As the cause must be remanded, it is proper that the court should now decide that the verdict of the jury was an acquittal of the defendant of the offenses charged in counts 2 and 5 of the indictment.

Reversed and remanded.