Colly v. State

55 Ala. 85

Opinion

STONE, J. —

Tbe charge, or criminal accusation, on which the appellant was tried and convicted in this cause, is insufficient. It charges no more than the making of a promise, to be performed in the future, which the defendant failed to observe and keep. This falls short of the requirements of section 3714 of the Eevised Code. “A false pretense is a false representation, which may be in mere oral words, or it may be in writing, or by signs, or the like, relating to some existing or past fact; and, to be indictable otherwise than as an attempt, it must actually mislead, and so produce such a particular cheat as falls within the words of the statute. A promise, not meant to be kept, is not a false pretense.”— Bish. Stat. Crimes, § 451. See, also, 2 Bish. Cr. Law, sections 400 et seq. The demurrer interposed to the accusation should have been sustained; and the motion in arrest of judgm'ent should also have been sustained.

Under the facts of this case, the defendant can not be convicted ; and we think a remandment of the cause could only result in an increase of expenses, without profit to any one. The judgment of the Circuit Court is reversed, and the prisoner ordered to be discharged from this prosecution.