— This prosecution was commenced, and the defendant convicted, before a justice of the peace. lie appealed to the Circuit Court, and was tried de novo. No statement was filed by the solicitor, but the record informs us the case was tried, by consent, on the affidavit for warrant of arrest. The affidavit is very full, and sets forth every ingredient of this statutory crime. We know no rule of law, which will deny to parties the power to dispense with the statement the solicitor is required to file in cases of appeal, and to substitute, by consent, the affidavit for the warrant of arrest, when such affidavit is sufficiently specific in its averments. — Code of 1876, § 4729.
Intent to injure or defraud is made an ingredient of the offense, of which the defendant was convicted. Without this intent, there is no guilt. Intent is rarely shown by direct proof, but is inferred from facts in evidence. Still, to authorize a conviction, the jury must be affirmatively convinced such intent existed; convinced by that measure of proof required in criminal cases. Our statute employs, disjunctively, the two words, “ in jure or defraud.” Either intent is sufficient to constitute the corrupt motive, if the words are employed in a different sense. Are they so employed ? The only injury that can be inflicted, “ by any false pretense or token,” by which one person “obtains from another any money or other personal property,” is the deception which imposes on the confidence of that other. This is a fraud ; and we can not think the legislature, in employing the word vnJjure, intended to express, or, considering the connection, could express, more or less than is implied in the word defraud. And this interpretation is fortified by the fact, that in prescribing a form of indictment for this offense, the same legislature which declared the ingredients of the crime, explained the phrase “ with intent to defraud,” and omitted the word injure. — Form 48, Code of 1876, p. 996 ; Mack v. The State, 63 Ala. 138 ; Wood*78bury v. The State, 69 Ala. 242. The second charge asked by defendant should have been given. ■
Reversed and remanded. The defendant to remain in custody, until discharged by due course of law.