Opinion
4 Div. 580.
June 30, 1930.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
Earnest Harrison was convicted of obtaining money by false pretense, and he appeals. Reversed and remanded.
The first count of the indictment is as follows:
"The Grand Jury of said County charge that before the finding of this indictment that Earnest Harrison, Doll Baines, alias Doll Baimes, Millard Williams, and Bascomb Williams, whose names otherwise are to the Grand Jury unknown, did falsely pretend to M. D. Harrell as the agent of G. M. Heath Son, a partnership composed of G. M. Heath and T. M. Heath, with intent to injure or defraud, that they had sold G. M. Heath and Son Four hundred ninety two pounds of seed cotton at and for the sum of twenty nine and 52/100 dollars, ($29.52) and thereby obtained a check drawn against the account of G. M. Heath and Son on the First National Bank of Enterprise and of the value of $29.52."
The evidence tends to show that defendant went to the place of business of G. M. Heath Son and presented to one Harrell (bookkeeper and cashier) a paper, which was introduced in evidence, and copy of which is as follows:
It further appears that defendant gave his name to Harrell as Doll Baines, and that the name inscribed in the foregoing ticket was taken to be Doll Baines; that defendant told Harrell the cotton had been weighed by the miller, and that Harrell told defendant to take the ticket and have it signed by the man who had weighed the cotton; that thereafter defendant returned with the ticket bearing the name (following the "M") "Charlie Moor"; that Harrell took the ticket and issued the following:
"Accepted __________ 192_, with interest from date, payable at First National Bank "No. __________. Enterprise, Ala., 10-16-1928
"On demand with receipt for 492 # seed cotton First National Bank of Enterprise Pay to order $29.52 Twenty-nine and 52/100 Dollars. For value received. To G. M. Heath and Son, Enterprise, Ala.
his "Doll X Baines ---------------- mark
"(Have party selling produce sign draft)
"Attest, Jeter C."
It further appears that this check or draft was paid by the bank, and that it was later determined that defendant had not in fact delivered seed cotton to Heath Son; that the ticket was not issued and signed by an employee of Heath Son, but was fabricated by defendant or some one for him.
J. C. Yarbrough, of Enterprise, for appellant.
Harrell was an agent of Heath Son, and a representation to him as agent was the same as if made to either partner. If the representation was untrue, Heath Son knew it, and hence Harrell knew it. 21 R. C. L. 837; Mobile R. Co. v. Thomas, 42 Ala. 672; Thames v. Cent. City Ins. Co., 49 Ala. 577; Addington v. State, 16 Ala. App. 10, 74 So. 846; Woodbury v. State, 69 Ala. 242, 44 Am. Rep. 515. The indictment is not in Code form, does not allege from whom the check was obtained. Code 1923, § 4556, form 58; Bazzell v. State, 16 Ala. App. 663, 81 So. 183. In an indictment for false pretense, it is not competent to prove pretenses other than those alleged. Meek v. State, 117 Ala. 116, 23 So. 155.
Charlie C. McCall, Atty. Gen., and Wm. P. Cobb, Asst. Atty. Gen., for the State.
While, in civil matters, a principal is charged with the knowledge of his agent, the agent is not charged with the knowledge of his principal. The authorities cited by appellant are inapt in a criminal prosecution. The indictment is in substantially the language of the Code form, and is under section 4131. It was not essential that it allege specifically the particular person intended to be defrauded. Code 1923, § 4541; Gardner v. State, 4 Ala. App. 131, 58 So. 1001. At any rate, the indictment sufficiently shows the check was obtained from Harrell. It was not necessary that the indictment allege all the deceptions practiced. Beasley v. State, 59 Ala. 20.
The first count of the indictment which undertakes to charge the statutory offense under § 4131 of the Code of 1923, does not follow the form laid down in the Code, § 4556 (form 58), in that it fails to allege from whom the "check" was obtained. Under our system of pleading, in prosecutions of this character, a general allegation of the intent to injure or defraud is all that is necessary, but the defendant is entitled to an indictment putting him on notice as to the person from whom the property or money was obtained, otherwise the indictment is subject to appropriate demurrer. Bazzell v. State, 16 Ala. App. 663, 81 So. 183; Mack v. State, 63 Ala. 138.
As this judgment must be reversed for and on account of the error of the trial court in overruling the demurrer, which will necessitate another indictment before the prosecution can proceed, we call attention to the further fact, as disclosed by the record, that even if the demurrer was not well taken, the defendant under the facts was entitled to the general charge, in that the indictment charged the obtaining of a check, while the paper introduced in evidence was a draft and dependent for its validity upon the signature of any person who would sign and attach a receipt for 492 pounds seed cotton.
Another thing, whatever of value was obtained by the false pretense or token here charged was obtained from the First National Bank of Enterprise, whether the bank or Heath Son were the ultimate losers is of no moment.
If the fraud was practiced on Harrell, the agent and bookkeeper for Heath Son, who signed the draft by reason of the fraud of defendant, the defendant would be amenable to section 4135 of the Code, and not to section 4131.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.