Eliminating the counts in the indictment that were either nol. prossed or eliminated by the verdict of the jury, the defendant stands convicted upon two counts as follows:
"The grand jury of said county charge that before the finding of this indictment that George D. Pollock, being at the time an agent or an officer of the Peanut Products Corporation, a corporation, and while acting as such agent or officer in the sale or offer to sell certificate or certificates of the capital stock of the Peanut Products Corporation to one J.B. Martin, did falsely pretend to the said J.B. Martin, with intent to defraud, that the said Peanut Products Corporation had paid big dividends and was earning fifty to sixty per cent. on its output and by means of such false pretense obtained from the said J.B. Martin five hundred dollars.
"The grand jury of said county further charge that before the finding of this indictment that George D. Pollock, being at the time an agent or an officer of the Peanut Products Corporation, a corporation, and while acting as such agent or officer in the sale or offer to sell a certificate or certificates of the capital stock of the said Peanut Products Corporation to one J.B. Martin with intent to defraud, that the said Peanut Products Corporation had paid big dividends and was earning forty to sixty per cent. on its output, and by means of such false pretense obtained from the said J.B. Martin five hundred dollars."
It is contended by the appellant that he is entitled to the general affirmative charge as to both of these counts and for convenience we deal with these questions as presented in brief, they being the only questions of merit presented for review.
It is first contended that it is charged that defendant sold "a certificate or certificates of the capital stock of the corporation," when the evidence shows that what he really sold was the capital stock represented by the certificates delivered. There is, in law, a technical difference between certificates of stock in a corporation and the stock itself. To the average mind, however, this is a distinction without a difference; the difference between "tweedledum and tweedledee." In common parlance, which is the language of indictments in this state, a charge that the defendant sold a certificate of shares in a corporation is equivalent to a charge that he sold stock in the corporation issuing the certificate, and meets the requirements as to the statement of the offense. Code 1907, § 7134.
It is next insisted that the probata and allegata do not correspond, and that therefore the defendant is entitled to the general charge as to both counts 1 and 3. The statement or pretense laid in the indictment and alleged to be false is:
"The said Peanut Corporation had paid big dividends and was earning fifty to sixty per cent. on its output." *Page 159
This is an allegation of two separable facts, to wit, that the corporation had paid big dividends and that the corporation was earning 50 to 60 per cent. on its output. The proof of either one of these statements, coupled with the other essential facts, would be sufficient to sustain a conviction as against the contention that the allegations and proof did not correspond so as to prove the corpus delicti. Addington v. State, 16 Ala. App. 10, 74 So. 846; Beasley v. State,59 Ala. 20; Foote v. State, 16 Ala. App. 136, 75 So. 728. The opinion in the case of Meek v. State, 117 Ala. 116, 23 So. 155, was undoubtedly based upon the assumption that the pretense charged was the statement of one inseparable fact and therefore should have been proven as laid; otherwise, that opinion is in conflict with the later case of Woods v. State,133 Ala. 162, 31 So. 984, which cites other Alabama cases, as well as all the pronouncements of this court on the subject. 11 Rawle C. L. p. 863; Bishop's New Crim. Proc. § 171; Gardner v. State, 4 Ala. App. 131, 58 So. 1001.
The proof made by the state of the pretense charged in the indictment was by the party alleged to have been defrauded, Martin, and one Fleming; the former saying, "He said that the Peanut Corporation was a paying business and had paid anywhere from forty to sixty per cent. dividend," and the latter testifying, "He told Mr. Martin in my presence that the corporation was earning big dividends and it was paying from forty to fifty and sixty per cent. dividend." The pretense alleged need not be proven in the precise words laid in the indictment; entire verbal accuracy is not required. It is essential that the idea conveyed by the defendant and that set forth in the indictment must correspond. 11 Rawle C. L. 863, § 46; State v. Vanderbilt, 27 N.J. Law, 328. From the testimony above given for the state, and applying the rule above set out, we conclude that there was not such a variance as to entitle the defendant to the general charge.
It is further contended that the defendant was entitled to the general charge, because the indictment alleged that "by means of such false pretenses obtained from the said J.B. Martin $500," when the proof showed that at the time of the transaction the defendant obtained a note from Martin, due at a future data and payable to the corporation, for whom he was acting as agent. While the defendant did testify that he received none of the proceeds of the note, there was sufficient evidence from which the jury might conclude that he was the agent of the corporation in obtaining the note which was subsequently paid to the corporation in completion of the transaction. The gravamen of the offense is in making the false pretense, with the intent to defraud, and the offense is consummated when, with such intent, he obtains from Martin the $500 — whether for himself or another is of no moment. Carroll v. State (Ala.App.) 94 So. 194;1 25 Corpus Juris, p. 609. But if it were necessary to prove that defendant received a benefit from the transaction, there is evidence from which the jury might draw this conclusion. The material inquiry is, Was the representation made? The state's testimony tends to prove that it was. Was the representation false? If it was made, it was admittedly false. Was it made with the fraudulent intent? The question was for the jury under the facts, Did Martin, relying upon the false statement, either wholly or as a moving inducement, part with his money either to the defendant or to some one to whom it was by the transaction stipulated to be paid? The testimony on this last question tends to prove that at the time of the false representation and sale of the stock Martin signed a promissory note for $500, the agreed purchase price of the stock, payable to the corporation, and to which was attached the stock certificate; that this note was deposited in the bank to the credit of the corporation, and before learning of the falsity of the representation was paid by Martin. It is not necessary to a conviction under this charge that the money should have been paid at the time of the representation; it is sufficient if the promise to pay arose at that time and in consummation of the transaction the money was subsequently paid. Clark v. State, 14 Ala. App. 633, 72 So. 291; Wilkerson v. State, 140 Ala. 155, 36 So. 1004; Foster v. State, 16 Ala. App. 459, 78 So. 722; Id., 16 Ala. App. 458,78 So. 721.
The case of Hendrix v. State, 17 Ala. App. 116, 82 So. 564, is not sound and is not borne out by the authorities cited therein. The Carr Case, 104 Ala. 43-45, 16 So. 155, was a charge of embezzlement where a check on a foreign bank had been placed in the hands of defendant for collection and by him sent on through the banks for collection, and the proceeds never coming into his hands. Gober's Case, 140 Ala. 153, 37 So. 78, was a charge of posting obscene literature; Dennison's Case was a charge of perjury. The holding in the Hendrix Case is in conflict with the adjudications of this court and the Supreme Court, and should be expressly hereby overruled.
The rulings of the court upon the admission of testimony were without error, and upon the whole evidence the question of the guilt or innocence of defendant was properly submitted to the jury.
The foregoing are the views of the writer, but the other members of the court disagree, and the majority opinion will be prepared by one of them.
1 18 Ala. App. 649. *Page 160
On Rehearing.