Pearce v. State

115 Ala. 115

• Court: Supreme Court of Alabama
• Decided: November 15, 1896
• Status: Published

Opinion

HARALSON, J.

That the plea in abatement filed by the defendant was without merit, as held by the lower court, is too plain for argument. The defendant's counsel in their brief filed in the cause do not, even, insist that there was error in overruling it. A false pretense within the meaning of the statute (Or. Code of 1886, § 3811), is a false representation as to an existing or past fact. A mere promise not meant to be kept is not a false pretense.—Colly’s Case, 55 Ala. 85. The false pretense alleged in the indictment to have been made, was of a fact, coupled with a promise of service to be rendered, and not a mere opinion or promise broken, viz., that defendant was a pension agent, and would obtain for the party named, Elizabeth Page, a pension, etc. The pretense was calculated to deceive. If intentionly made, was acted on, while in fact, it was false and intended to defraud, and a thing of value was parted with, in confidence of its truth, the requirement of the statute was met, and the defendant would be guilty. Bobbitt v. The State, 87 Ala. 91. The facts in the case cited, and the one before us were very similar, and there is no distinction in principle between that and this'case.

The indictment was in conformity with form 47, Code of 1886, p. 272.

There was no error in refusing the charges requested by defendant, nor in the manner of their refusal.

Affirmed.