[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 12 The defendant was convicted on the second count of the indictment. The first question presented is as to the sufficiency of this count to authorize a judgment on the verdict of the jury. The contention of the appellant is that, although the indictment follows the form prescribed by the statute, inasmuch as this form does not contain an averment as to the materiality of the false pretenses, but leaves this to the pleader, enough of the transaction must be stated to show that the false statement or representation was material to the transaction in hand and to identify the occasion.
That the false pretense, to come within the statute, must be of a material fact, calculated to deceive, and on which the party to whom it is made has the right to rely, does not admit of question. Woodbury v. State, 69 Ala. 242, 44 Am. Rep. 515; 11 R. C. L. 831, § 9. And in the absence of *Page 15 a statute dispensing with the necessity of stating the false pretenses relied on, the indictment must allege them in such terms as enable the court to determine whether or not the act is within the statute, and with such certainty as to show that it constitutes an indictable offense. 11 R. C. L. 858, § 41; Barton v. People, 25 Am. St. Rep. 384, note. Otherwise stated, the general rule is that an indictment must aver every fact necessary to an affirmation of guilt, and the rule is not satisfied as long as any fact essential to guilt is left to implication or inference. Jenkins v. State, 97 Ala. 66,12 So. 110; Emmonds v. State, 87 Ala. 12, 6 So. 54; Adams v. State, 13 Ala. App. 330, 69 So. 357.
The form of the indictment here is that "Jacob L. Addington did falsely pretend to Rachel Woodruff, with intent to injure or defraud, that he, the said Jacob L. Addington, was a lawyer; that he could plead the case of James M. Addison, charged with vagrancy in court; that he, the said Jacob L. Addington, was a practicing attorney at the Birmingham bar, and was authorized to defend cases in the courts of Jefferson county, Ala.;and by means of such false pretense obtained from the said Rachel Woodruff her signature to a certain written instrument in substance as follows," etc. We hold that the averment, "and by means of such false pretenseobtained," etc., is tantamount to an averment that the alleged false statement was made as of fact, was material to the transaction in hand, and that the party alleged to have been defrauded had a right to rely thereon, that she relied thereon, and was deceived thereby (Franklin v. State, 52 Ala. 414; Hicks v. State, 86 Ala. 30, 5 So. 425; Todd v. State,13 Ala. App. 301, 69 So. 325); that an indictment following the form prescribed by the statute (Code 1907, § 7161, form 59) is sufficient, and the demurrer thereto was properly overruled (Toliver v. State, 142 Ala. 3, 38 So. 801; Jones v. State, 136 Ala. 118, 34 So. 236; Noles v. State, 24 Ala. 672; Headley v. State, 106 Ala. 109, 17 So. 714; Pearce v. State, 115 Ala. 115, 22 So. 502; Bobbitt v. State, 87 Ala. 91,6 So. 378).
The indictment is not subject to demurrer because several matters are alleged as false pretenses, some of which constitute false pretenses within the statute, and others do not. The averments as to those not within the statute will be treated as surplusage, unless they are descriptive averments. 11 R. C. L. 858, § 41; Barton v. People, 25 Am. St. Rep. 385, note; State v. Vorback, 66 Mo. 168; State v. Janson,80 Mo. 97.
The statute authorizes proof of the execution of a written instrument by the maker thereof, without producing or accounting for the absence of the subscribing witness (Code 1907, §§ 4004-4006; Hayes v. Banks, Adm'r, etc., 132 Ala. 354,31 So. 464; Sledge et al. v. Singley et al., 139 Ala. 346,37 So. 98); and although the maker of the mortgage in this case could not read or write, if as a witness she was able to identify her mark, which, when properly attested, was an efficacious signature to the mortgage, her testimony was competent to prove the execution of the mortgage. Lyons v. Holmes, 11 S.C. 429, 32 Am. Rep. 483.
The mortgage appears on its face to have been regularly acknowledged and recorded, and under the provisions of section 3357 of the Code the attestation of a subscribing witness who could write was not requisite to an efficacious and valid execution of the paper. Loyd v. Oates, 143 Ala. 231, 38 So. 1022, 111 Am. St. Rep. 39; Weil Bros. v. Pope, 53 Ala. 585. The mortgage was not subject to collateral attack on the ground that the notary who took the acknowledgment, was personally interested in the mortgage. Monroe v. Arthur, 126 Ala. 362,28 So. 476, 85 Am. St. Rep. 36; Vizard v. Robinson, 181 Ala. 353,61 So. 959. The objection to the mortgage and the motion to exclude were properly overruled.
It seems to be well settled, where an indictment for obtaining money under false pretences alleges several separate pretenses, proof of any one of the pretenses alleged is sufficient to support a conviction. 11 R. C. L. 863, § 46; Bishop's New Criminal Procedure, § 171; Gardner v. State,4 Ala. App. 131, 58 So. 1001; Beasley v. State, 59 Ala. 20; Commonwealth v. Morrill, et al., 8 Cush. (Mass.) 571; State v. Vorback, 66 Mo. 168; People v. Blanchard, 90 N.Y. 314; State v. Dunlap, 24 Me. 77; People v. Wakely, 62 Mich. 297,28 N.W. 871. The motion to exclude the evidence on the ground of variance between the averments and proof was therefore, properly overruled.
The court, after reading to the jury section 6921 of the Code as a part of the oral charge, further charged the jury:
"The indictment charges an offense under that section and it is necessary to prove beyond a reasonable doubt, in the first place, that there was a false pretense made by the accused to the party alleged to have been injured — a false pretense: that is, a statement of facts, either an existing fact or past fact, which is false or untrue. That is the first essential element of the offense which we have to consider. Was there a false statement made by the accused as charged in the second count of the indictment? In other words, if the accused, as stated in the second count, falsely pretends to Rachel Woodruff, 'with the intent to injure or defraud, that he, the said Jacob L. Addington, was a lawyer'? Now that is one of the charges of false pretense. Is that a fact or not? Did he falsely pretend that he was a lawyer or not, as charged, to Rachel Woodruff? In the first place, you have to determine, did he make that statement, * * * that he was a lawyer? If so, was it false or true? Now, you have heard the evidence on that subject, both that on behalf of the state and on behalf of the defendant, and it is for you to say, as judges of the evidence, what the truth is, where you find the evidence in conflict. If you can reconcile such conflict so as to make the witnesses speak the truth, it will be your duty to do so, in fairness to the witnesses; but if you find any two witnesses are *Page 16 in irreconcilable conflict, then, of course, it is for you and you alone to decide what the truth is, rejecting what you believe to be untrue, and accepting what you believe to be true. The second element of this offense charged in the second count of the indictment is that there must have been an intent on the part of the defendant to injure or defraud, either to injure the party to whom the false statement was alleged to have been made, or defraud her. Now you, gentlemen, have heard the evidence in this case, and from that evidence as introduced you must determine whether or not there was an intent, on the part of the accused of the alleged false statement, to injure or defraud. Now how does a jury arrive at a conclusion as to what a man's intent was? The only way here you can decide what a man's intent was, intent being what was in the heart of a man, is from all the circumstances, all the surrounding circumstances, from the evidence in the case, and then weigh those circumstances, if sufficient, and draw your reasonable conclusion whether or not there was intent to defraud; whether or not it is true, applying to it your own judgment, your own experience, and your own common sense. Now it is not necessary that all the alleged false pretenses should be proven as charged. In other words, it would be sufficient to sustain the false pretense alleged in this second count of the indictment if you believed, beyond a reasonable doubt, that the defendant, with the intent to injure or defraud, made any one of the alleged false statements set out therein. For example, if it was proven beyond a reasonable doubt that he with the intent to injure or defraud — that the defendant said he was a lawyer, that would be sufficient, without proving furthermore that he made the representation that 'he could plead the case of James M. Addison, charged with vagrancy in court.' You would not have to prove all that was alleged, but any one statement set forth, provided it was a material statement, and provided that the party to whom same was made relied upon it, and was induced to sign the alleged instrument by relying on such statement. If the state proves, beyond a reasonable doubt,that any one of these separate alleged false statements, eitherthat he said he was a lawyer, or that he could plead the caseof James M. Addison, charged with vagrancy, in court, or thathe, Jacob L. Addington, was an attorney at the Birmingham barand was authorized to defend cases in Birmingham, Ala.; inother words, if the evidence proved any one of those threealleged false statements, it would be sufficient to make out acharge of false pretense, provided you believed beyond a reasonable doubt that the defendant had at the time an intent to injure or defraud, and furthermore that Mrs. Rachel Woodruff signed the instrument described on account of that false statement, and was — and that that was the controlling inducement or controlling cause that moved her to sign it, and provided, furthermore, that that occurred in this county, and within three years next preceding the finding of the indictment."
At the conclusion of the oral charge, the defendant reserved an exception to the portion of the oral charge above italicized, and the court then said to the jury:
"Yes; I will say in that regard — I think I covered that in the charge, but I will say that the statement that the court made to that effect, to the effect that it is only necessary to establish one of the representations; that is, coupled with the statement that each of those statements must have been a material statement, and one upon Which the party relied, and which induced the party to act."
The defendant also reserved an exception to this last statement of the court. It is the opinion of the writer that the portion of the oral charge to which exception was first reserved is erroneous, in that it is clearly a charge on theeffect of the evidence, in violation of section 5362 of the Code 1907; and constitutes reversible error. L. N. R. R. Co. v. Godwin, 191 Ala. 498, 67 So. 675. This portion of the charge is subject to the further vice that it assumes that the alleged statement, "that he could plead the case ofJames M. Addison, charged with vagrancy, in court," was made asof fact, while under some phases of the evidence, if such or similar statement was made, it was open to the jury to find that it was a mere jest, or that it was a promise to do something in the future. If this position is correct, it is manifest that what the court said in response to this exception in no way cured these vices. The sum and substance of the correction was that the statement must be a "material statement." This might all be true, and yet the statement not be one of fact. Neither is this error rendered innocuous by what had been previously said, in stating the elements of the offense to the effect that the pretense, to be within the statute, must be "a statement of fact." After charging this as the law, the court follows it with the specific instruction that, if the jury believed beyond a reasonable doubt, that the defendant said "that he could plead the case of James M. Addison in court," the case was made out, provided this was a material statement, and was made in the county within three years before the finding of the indictment. The only inquiry submitted to the jury with respect to this phase of the case presented in the indictment was: Did the defendant make the statement "that he could plead the case of James M. Addison, charged with vagrancy, in court"? Was this a material statement? Did he have an intent to injure or defraud? Did Mrs. Woodruff sign the mortgage on account of that statement? Was that the controlling inducement that moved her to sign it? Did this occur in the county within three years before the finding of the indictment? — clearly assuming that, if such statement was made, it was made as offact.
"Whether a material representation was falsely made, asof a fact; whether it was made with intent to defraud; whether in consequence of such representation, and relying on it, the owner was induced to part with the alleged thing of value — are all inquiries for the jury, under proper instructions, on the solution of which the conviction or acquittal of the accused depends." Beasley v. State, supra.
"The instructions given by the court affirmatively, ex mere motu, should present the particular case, in all the phases and aspects in which the jury ought to consider it, not giving any undue prominence to, or leaving in obscurity, any phase or aspect there is evidence tending to support; and if such instructions in effect discard or ignore, and thereby induce the jury to discard or ignore, any real, material element of the offense imputed to the accused, they ought not to be supported." Woodbury v. State, 69 Ala. 242, 44 Am. Rep. 515.
"It would be difficult, if not impracticable, to lay down any general rule which could govern *Page 17 every case which is within the statute. Many questions of fact must be settled by a jury, such as the character of thepretense used, the credit given to it, the occasion, and the evil purpose sought to be accomplished by the false device, which matters necessarily involve the motives actuating the minds of both parties." State v. Vanderbilt, 27 N.J. Law (3 Dutch.) 336.
In People v. Blanchard, 90 N.Y. 320, it was said:
"The representations relied on were proved almost literally as they stand in the indictment, and in such case it appears to be the rule that the sense in which they were used, the meaning they were intended to bear, and what was designed to be and what was understood from them, is a question for the jury" — citing Regina v. Archer, 6 Cox's Cr. Cas. 518.
A mere idle assertion, or the expression of a purpose or the ability to do something in the future, or a promise to perform services at a future time, not intended or accepted as a statement of a material fact, is not within the statute. Colly v. State, 55 Ala. 85; Woodbury v. State, supra; People v. Jordan, 66 Cal. 10, 4 P. 773, 56 Am. Rep. 73; 11 R. C. L. 832, § 10. The substance of the testimony given by Mrs. Woodruff as to the alleged statement made by the defendant, when considered as a whole, was, to use her language:
"He said he had a son 11 years old, and he [his son] could plead law about as good as he [the defendant] could. He told me and Mrs. Knight that, a lady friend of mine, one of my neighbors." Record, p. 17.
When the alleged pretense above italicized is separated from the others alleged in the indictment, and in view of the uncertainty of the meaning intended to be conveyed by the statement shown by the testimony of the witness, it cannot be said that the evidence showed without room for adverse inference that the statement was made as of fact; and the charge, in assuming that it was invaded the province of the jury.
There was some evidence tending to show that the mortgage in question was given by the witness Woodruff to secure an indebtedness to McNeal for services to be rendered by McNeal in behalf of Addison in a divorce proceeding and securing the custody of his (Addison's) children. If this was true, and the mortgage was given for the purpose of securing a bona fide indebtedness due from Woodruff to McNeal, the elements of injury essential to the fraud would be absent. Commonwealth v. Harkins, 128 Mass. 79; Bishop's New Crim. Law, § 438. The charge set out in the ninth assignment of error, drawn no doubt with this principle in view, as worded, if given, would have been an invasion of the province of the jury, and was well refused. The other charges refused to defendant were properly refused, for reasons patent on their face.
Considering the testimony in this record in its entirety, the writer is driven to the conclusion that the testimony of the witness Mrs. Woodruff, to the effect that the defendant said he was a lawyer, is but the statement of her conclusion, drawn from the transaction leading up to the signing of the mortgage, and that, in fact, all that he really said in respect to such professional character was, to use her language:
"He said he had a son 11 years old, and he could plead law about as good as he could. He told me and Mrs. Knight that, a lady friend of mine, one of my neighbors."
While the conduct of the defendant may have been such as to warrant Mrs. Woodruff in drawing this conclusion, this statement, standing alone, certainly does not warrant the finding of a verdict by a jury in this solemn judicial proceeding that the defendant represented to Mrs. Woodruff, with intent to defraud, the fact that he was a lawyer, nor does it warrant the finding that any one of the other alleged false pretenses were made by the defendant, and therefore that a new trial should be awarded.
However, Judges Pelham and Evans do not concur in the views above expressed as to the court's oral charge being erroneous; nor what is said as to the defendant being entitled to a new trial, holding that the oral charge, when considered as a whole, is a clear statement of the law and free from error, that the evidence is sufficient to sustain the verdict, and the motion for a new trial was properly overruled.
The result is that the judgment of the criminal court is affirmed.
Affirmed.