Donegan v. State

95 So. 826, 19 Ala. App. 171, 1923 Ala. App. LEXIS 63

Opinion

BRICKEN, P. J.

From a judgment of conviction for the offense of obtaining money, etc., under false pretense (felony), the defendant appeals.

The testimony of the state tended to show that this defendant did falsely pretend to state witness John Pender, with intent to defraud, that certain personal property, to wit, a red mare eight years old named Annie and a jersey cow five years'old named Maria, was his property, and that said personal property was free from all incumbrance, and by means of such false pretense did obtain from the said John Pender $75. There. was testimony offered by the state which also tended to show that this identical property had a short time previously thereto been mortgaged by defendant to one Cartwright.' These transactions, it appears, happened yvithin the time covered by the, indictment.

The defendant, on the other hand, offered testimony which tended to show that; the property in question was not included in the Cartwright mortgage; that said mare and cow had died, etc. This conflict in the testimony presented a jury question; the' affirmative charge requested by the defendant was therefore properly refused.

The rulings of the court upon the testimony were ¿without error. The exceptions reserved to a' portion- of the oral charge of the court are without merit. And refused charge 4 was covered by the oral charge. It was properly refused also for the reason that it was not predicated upon the evidence.

No error appears in the .record; therefore the judgment of the circuit court is affirmed.

Affirmed.