Primus v. State

Alabama Court of Appeals

Primus v. State

111 So. 194, 21 Ala. App. 630, 1927 Ala. App. LEXIS 212

CourtAlabama Court of Appeals

DecidedJanuary 18, 1927

Docket3 Div. 547.

StatusPublished

Cited by5 cases

This text of 111 So. 194 (Primus v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Primus v. State, 111 So. 194, 21 Ala. App. 630, 1927 Ala. App. LEXIS 212 (Ala. Ct. App. 1927).

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Opinion

•RICE, J.

Appellant was convicted of the offense of “getting goods under false pretenses.”

Some of the written charges refused to defendant, we think, stated correct propositions of law, were not covered by other charges, and should have been given. Likewise we are of tl}e opinion that the court was in error in allowing the witness H. L. Kendig to testify as to “the last year his father was in charge of the Tillinghast land,” etc. It seems to us immaterial, and might have been injurious to defendant.

But we pretermit any further comment upon specific errors that may have been committed during the trial in order to say that we are of the opinion that the judgment should be reversed for the failure of the trial court to grant appellant’s motion for a new trial. It is elemental that for a conviction on a charge of this kind to stand the evidence must show that the fals'e representation alleged to have made operated as an inducement for the injured party to part with his goods. Here there is an absence of such evidence. True, the witness Gaillard testified that defendant “got ten sacks of fertilizer on the strength of that representation.” But this was purely an unauthorized conclusion or opinion of the witness, and should not have been allowed to go in evidence if proper objection had been made. The transaction involved was one between defendant and one Ivey, and manifestly witness Gail-lard had no right to say what it was that caused Ivey to let defendant have the goods. Especially is this so when it appears that appellant, at the time of the procuring of the goods, executed to Ivey a mortgage upon a quantity of personal property.

The conviction appears to be founded in error, and the judgment is reversed and the cause remanded.

Reversed1 and remanded.

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•RICE, J.

Appellant was convicted of the offense of “getting goods under false pretenses.”

Some of the written charges refused to defendant, we think, stated correct propositions of law, were not covered by other charges, and should have been given. Likewise we are of tl}e opinion that the court was in error in allowing the witness H. L. Kendig to testify as to “the last year his father was in charge of the Tillinghast land,” etc. It seems to us immaterial, and might have been injurious to defendant.

But we pretermit any further comment upon specific errors that may have been committed during the trial in order to say that we are of the opinion that the judgment should be reversed for the failure of the trial court to grant appellant’s motion for a new trial. It is elemental that for a conviction on a charge of this kind to stand the evidence must show that the fals'e representation alleged to have made operated as an inducement for the injured party to part with his goods. Here there is an absence of such evidence. True, the witness Gaillard testified that defendant “got ten sacks of fertilizer on the strength of that representation.” But this was purely an unauthorized conclusion or opinion of the witness, and should not have been allowed to go in evidence if proper objection had been made. The transaction involved was one between defendant and one Ivey, and manifestly witness Gail-lard had no right to say what it was that caused Ivey to let defendant have the goods. Especially is this so when it appears that appellant, at the time of the procuring of the goods, executed to Ivey a mortgage upon a quantity of personal property.

The conviction appears to be founded in error, and the judgment is reversed and the cause remanded.

Reversed1 and remanded.

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111 So. 194, 21 Ala. App. 630, 1927 Ala. App. LEXIS 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/primus-v-state-alactapp-1927.

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