The criticism by the majority opinion that the vice in the oral charge of the court pointed out by the opinion of the writer heretofore promulgated was not noticed in appellant's brief and was raised by the writer for the first time is unwarranted. The statute makes it the duty of this court to search the record for errors apparent thereon; and there is no rule of court or statute requiring the appellant in a criminal case to point out the errors, either by assignment of error or brief. Code 1907, § 6264; Campbell v. State, 182 Ala. 22,62 So. 57; Gaines v. State, 146 Ala. 16, 41 So. 865. And as observed by the Supreme Court in Campbell's Case, supra:
"While the right to appeal is purely a creature of our statutes, the Legislature, by adopting the above provisions of our Code, clearly indicates the legislative purpose that such right shall not, in any criminal case, become a mockery, but that the right shall be substantial, and that this court shall see to it that a defendant who has been convicted in a criminal case, and who has reserved a question of law for the consideration of this court, and who prays an appeal, shall be accorded the privilege of having the legal questions presented by his record properly passed upon."
The authorities cited in the majority opinion to the proposition that appellant's exception was abortive and was not sufficient to raise the question commented on in the opinion of the writer do not sustain the pronouncement there made, as the following excerpts from those cases will show. Quoting from the opinion in Bonner v. State, 107 Ala. 106, 18 So. 228:
"The general charge of the court was given in writing. It covers the case pretty thoroughly and exhaustively, stating, of course, many distinct principles of law bearing on the case as presented to the jury, and expounding them concisely and correctly. The defendant excepted generally to the giving of this charge; the recital being, 'The defendant excepted to the giving of the above charge,' and this is all."
In this case the bill of exceptions recites:
"That part of the oral charge excepted to being as follows: '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 * * * this second count of the indictment if you believed, beyond a reasonable doubt, that the defendant, with 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 the party to whom it was made relied upon it, and was induced to sign the alleged instrument relying upon such statement. If the statement proves, beyond a reasonable doubt, that any one of these separate alleged false statements, either that he said he was a lawyer, or that he could plead the case of James M. Addison, charged with vagrancy, in court, or that he, Jacob L. Addington, was an attorney at the Birmingham bar, and was authorized to defend cases in Birmingham, Ala.; in other words, if the evidence proved any one of those three alleged false statements, it would be sufficient to make out a charge of false pretenses, 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 *Page 22 that that was the controlling inducement or controlling motive that caused her to sign it, and provided, furthermore, that that occurred in this county, and within three years preceding the finding of the indictment.' "
In B. R., L. P. Co. v. Friedman, 187 Ala. 570, 65 So. 941, it was said:
"The exception attempted to be taken to the oral charge of the court in respect of the statement that the jury's province was to decide the issues of fact was abortive, for that it was descriptive only — not the reservation of anexception to a particular, exactly designated statement of thejudge. There is no practice allowing an exception by description of a subject treated by the court in an oral charge to the jury."
The exception in this case is to "an exactly designated statement of the judge," dealing solely and exclusively with the quantum of proof necessary to sustain the averments of the indictment descriptive of the offense, and the conclusion of the majority that the exception is general and does not reserve on the record the question discussed in the minority opinion is supertechnical, not borne out by the record, nor sustained by authority.
Under the practice prevailing in this state, it is not incumbent on the exceptor to state the grounds or give the reasons prompting the exception, or to enter into any controversy with the court as to the correctness of the principles announced in the charge. All that is required is that a specific portion of the charge be pointed out, in order that the trial court may change or modify this portion if it is deemed objectionable in any respect. And if the exception is so reserved, and the portion of the charge is a charge on the effect of the evidence, invasive of the province of the jury, or assumes any fact essential to the defendant's guilt, or is otherwise objectionable, it is the duty of this court, on appeal, to review the question thus presented. Moore Co. v. Robinson, 62 Ala. 538; Mayer v. Thompson-Hutchison Bldg. Co., 116 Ala. 638, 22 So. 859; Gaynor v. L. N. R. R. Co., 136 Ala. 259, 33 So. 808; McIntosh v. State, 140 Ala. 137,37 So. 223; Winter v. State, 133 Ala. 176, 32 So. 125; Collins v. State, 138 Ala. 57, 34 So. 993; Ragsdale v. State, 134 Ala. 24, 32 So. 674; L. N. R. R. Co. v. Godwin,191 Ala. 498, 67 So. 675. The portion of the oral charge pointed out by the exception as set out in the record here, as we have said, deals solely with the quantum of proof necessary to sustain the averments of the indictment descriptive of the offense. It will be noticed that these averments were not in the alternative, and in addition to the criticism noted in the opinion of the writer heretofore promulgated, this portion of the charge is clearly subject to the vice that it assumes that three separate and distinct false pretensions are alleged, one at least of which is not within the statute, to wit, "that he could plead the case of James M. Addison, charged with vagrancy, in court," unless, as a matter of fact, it amounted to an affirmation by the defendant that he possessed the present ability and qualifications as an attorney at law to appear and plead Addison's case. This question, under all the authorities, was one for the jury, because, conceding that such assertion was made, it was open to a construction wholly consistent with the defendant's innocence — i. e., that it was an idle jest, or a promise — or it might have carried the meaning that defendant would shortly qualify himself and in time to act in the capacity as attorney for Addison, and would then plead his case.
"As against defendants, these statutes, like all other criminal ones, must be construed strictly, and nothing not within their words be held to be within their meaning. On the other hand, in favor of defendants, the construction is liberal. So that the word 'pretense,' instead of being understood in the popular sense, has obtained a legal and technical one." 2 Bishop's New Criminal Law, § 415.
"It is not a false pretense to state, whether in the form of a promise or in any other form, what one deems the future will bring forth; a pretense must relate either to the past or the present." 2 Bishop's Criminal Law, § 420.
And it is held that the assertion or statement of a physician that he will or can cure a person of a certain disease, although false, is not within the statute. Rex v. Bradford, 1 Ld. Raym. 366; 2 Bishop's New Criminal Law, § 419.
While much might be said in opposition to the doctrine heretofore announced in this case, on the authority of Gardner v. State, 4 Ala. App. 131, 58 So. 1001, holding, where the indictment avers several separate and distinct pretenses, proof of any one of the several pretenses will support a conviction, and especially its application to an indictment where the several pretenses are not stated in the alternative and the averments are descriptive of the offense (Felix v. State,18 Ala. 720; Eskridge v. State, 25 Ala. 30; Thomas v. State,111 Ala. 51, 20 So. 617; Townsend v. State, 137 Ala. 91,34 So. 382; Lindsey v. State, 48 Ala. 169; McGehee v. State,58 Ala. 360; Miles v. State, 94 Ala. 106, 11 So. 403; State v. O'Donald, 1 McCord [S.C.] 532, 10 Am. Dec. 691; Cowan v. State, 41 Tex. Cr. R. 617, 56 S.W. 751), however that may be, the statement of the doctrine as made in this case and in Gardner's Case is subject to the qualification that the pretense alleged and proved must be within the purview of the statute. Bishop states the rule thus:
"There need be only one false pretense. Though several are set out in an indictment, yet if any one is proved — being such as truly amounts in law to a false pretense — the indictment is sustained." 2 Bishop's Criminal Law, § 418; 2 Bishop's New Proc. § 171.
The statement of the rule by the Supreme Court in no way conflicts with the uniform holding that all matters descriptive of the offense must be proven, but is that proof of "thefalsity of every pretense made is not always *Page 23 necessary to a conviction," and gives as the reason:
"If it were, every malefactor could escape conviction by blending some truth with his false pretense." Beasley v. State,59 Ala. 20; Woods v. State, 133 Ala. 166, 31 So. 984.
It was the province of the jury to pass upon the evidence, and draw the inference, if in their judgment the evidence warranted it, that the statement imputed to the defendant "that he could plead the case of James Addison, charged with vagrancy, in court," was the affirmation of the defendant's then present ability and qualification to appear in court as Addison's attorney and plead his case. Beasley v. State,59 Ala. 20; Woodbury v. State, 69 Ala. 242, 44 Am. Rep. 515; Smith v. State, 165 Ala. 50, 51 So. 610; Colly v. State, 55 Ala. 85; State v. Vanderbilt, 27 N.J. Law, 336; People v. Blanchard, 90 N.Y. 320. The court, in its oral charge, denied this right to the jury, and in so doing invaded their province, and impinged a constitutional right of the defendant. Const. 1901, § 11; Martin v. State, 62 Ala. 240.
While it is the jury's province to pass upon the credibility and weight of the evidence, and determine in the first instance whether the evidence justifies a verdict of guilty, it is the right and duty of this court, in reviewing the order of the court denying a new trial, to pass upon the weight of the evidence, and, if needs be, the credibility of the evidence as disclosed by the record. This rule is not new, but has existed for more than 20 years in civil appeals, and by the act approved September 22, 1915, amended section 2846 of the Code is made applicable to criminal appeals. Acts 1915, p. 722.
In Cobb v. Malone, 92 Ala. 630, 9 So. 738, where the rule was first announced in this state in civil cases, it was said:
"The decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. And decisions granting new trials will not be reversed, unless the evidence plainly and palpably supports the verdict. Of course, these rules are not inflexible; but subject to exceptions and qualifications, dependent upon peculiar circumstances."
This court exercised the power in Patterson v. Mulligan,12 Ala. App. 324, 66 So. 914, and, after reviewing and passing on the weight of the evidence, reversed the trial court, and granted the appellant a new trial. The power should be more liberally exercised in criminal appeals, for, as said by the Supreme Court:
"In no case of conviction, in which the evidence is palpably inconsistent [consistent] with the reasonable supposition of the innocence of the accused, can the primary court refuse to grant a new trial." Martin v. State, supra.
In order to constitute the offense denounced by our statute, there must be a false statement relating to some existing or past fact, calculated to deceive, or the use of a false symbol or token calculated to deceive, and which misled and caused the party defrauded to part with a thing of value. Code 1907, §§ 6920, 6921; Wilkerson v. State, 140 Ala. 155, 36 So. 1004; Pearce v. State, 115 Ala. 115, 22 So. 502; Colly v. State,55 Ala. 85; Woodbury v. State, 69 Ala. 242, 44 Am. Rep. 515; Young v. State, 155 Ala. 145, 46 So. 580; Cowan v. State,41 Tex. Cr. R. 617, 56 S.W. 751; Commonwealth v. Drew, 19 Pick. (Mass.) 179. Mere "conduct and course of dealing," unaccompanied by the employment of a false representation of fact by word or the employment of a false symbol or token, although sufficient to warrant a conclusion reached by the party parting with the thing of value, is not sufficient to bring the case within the statute. Such construction of the statute would be a strict construction against the accused, which is contrary to the policy of the law (2 Bishop's Criminal Law, § 415), and would subject him to criminal liability on an erroneous conclusion of the other party to the transaction. Cases are numerous where false tokens — material evidences of the existence of a fact — were employed to assist in accomplishing the fraudulent purpose, and a conviction sustained. Such was the leading case of Rex v. Barnard, 7 C. P. 784, where the accused, by appearing in the garb of an Oxford University student, was enabled to fraudulently obtain goods on credit. However, in that case the report shows that the accused "stated that he belonged to Magdalene College"; and likewise in the following cases the accused employed a symbol or token to aid his unlawful purpose: Regina v. Bull, 13 Cox, Cr. Law Cas. 608; State v. Bourne,86 Minn. 432, 90 N.W. 1108; Taylor v. Commonwealth, 94 Ky. 281,22 S.W. 217; State v. Hammelsy, 52 Or. 156, 96 P. 865, 17 L.R.A. (N.S.) 244, 132 Am. St. Rep. 686; State v. Foxton,166 Iowa, 181, 147 N.W. 347, 52 L.R.A. (N.S.) 919, Ann. Cas. 1916E, 727; Commonwealth v. Mulrey, 170 Mass. 103, 49 N.E. 91; Brown v. State, 37 Tex. Cr. R. 104, 38 S.W. 1008, 66 Am. St. Rep. 794; Commonwealth v. Beckett, 119 Ky. 817, 84 S.W. 758, 68 L.R.A. 638, 115 Am. St. Rep. 285. In State v. Goble,60 Iowa, 447, 15 N.W. 272, the opinion states that:
"The evidence shows that defendant represented by his words and action that he was Backer, and did not apply for payment as the agent or servant of Backer."
The cases noted above cited in 19 Cyc. 402, to sustain the proposition, "A false pretense or representation may be made by act as well as by word;" but an examination of these authorities demonstrates that this is not a clear statement of the rule, and it is only when some symbol or token is used in connection with misleading conduct, such as "passing of a worthless check or draft, or a check which accused has no reason to suppose will be honored" (see 19 Cyc. 402), that a false statement in words is not essential. *Page 24
In Glackan v. Commonwealth, 3 Mete. (Ky.) 232, under a statute substantially the same as ours, it was held, as our Supreme Court has held, that:
"It is essential to a conviction for obtaining money or property under false pretenses to allege and prove that the pretense whereby the money or property was obtained was the statement of some pretended past occurrence or existing fact, made for the purpose of inducing the party injured to part with his property."
But after an amendment of the statute so as to read, "If any person, by false pretense, statement, or token, with intent," etc., it was held that conduct alone might be a pretense. Commonwealth v. Murphy, 96 Ky. 28, 27 S.W. 859.
It is broadly stated in the majority opinion that:
"The evidence set out in the bill of exceptions is ample to show the commission of the offense charged against the defendant and of his guilty participation."
Inasmuch as I do not concur in this conclusion, I deem it proper to state the reasons for not concurring, and this makes it necessary to set out some of the evidence.
The evidence shows without dispute that one Addison, the son of the prosecutrix, was confined in the county jail on a charge of vagrancy, sworn out by Addison's wife; that defendant, having gone to the jail on business, was called by Addison, who requested defendant to aid him in making bail; that the prosecutrix, Mrs. Woodruff, was present at this time. After Addison, by aid of the defendant, secured bail, the defendant, Addison, and the prosecutrix went to the office of one McNeal, an attorney for whom defendant was working, and discussed Addison's trouble with McNeal, agreeing on the amount of the fee to be charged for prosecuting a prospective proceeding for divorce and custody of children to be instituted by Addison against his wife. At this time the question of the prosecutrix giving a mortgage to secure a fee was mentioned, but nothing further was done. Three days thereafter the prosecutrix, accompanied by her friend, John Gravit, came back to McNeal's office, and the prosecutrix then signed the mortgage. The evidence shows that the defendant was not present at this time, and, so far as is shown, he had not been in contact or conversation with the prosecutrix for three days. The testimony of the prosecutrix on its face is self-contradictory, and mainly consists of the statement of conclusions in response to leading questions. The testimony of this witness and others touching the alleged false pretenses is as follows:
Mrs. Woodruff: "Q. Did Mr. Addington say whether or not he was a lawyer? (Defendant objected to leading the witness.) A. Yes, sir; he said he was a lawyer. Q. What else did he say about that? A. Well, he told me that he would get the children and a divorce for my son and property for $150. I mean my son's children and a divorce for my son from his wife. * * *"
Witness further testified, in answer to questions, that she was in Mr. McNeal's office, where Addington stayed, at the time she made her mark to the paper; that McNeal's office and Addington's office were all together. She was then asked the question: "Did Mr. McNeal sign his name to the paper in your presence?" The witness answered:
"Yes, sir; he did, because there wasn't anyone else there to do the writing but him. Q. Well, what was said along about that time, Mrs. Woodruff? A. Well, Mr. Addington there wanted — he said that he would get the children and the property and the divorce for my son for $150, and for me to give a mortgage on my home. Well, I didn't want to do it, understand, and I was of some time of consenting to do it, but last he turned around and said: 'I'll put your son back in jail if you don't, or have him put back.' Q. Did you sign it then? A. Yes, sir; I signed it then. I felt then that I would rather do anything than see my son go back in jail. * * * Q. Did he tell you whether or not he would defend your son? (Defendant objects to the question.)
"The Court: Do you remember all that he said to you at all before you signed that instrument? If you remember, state all that he said to you before you signed that instrument. A. Well, he said that he would get the divorce and children and property, if I would give him a mortgage on my place for $150. Well, then, that was right after my son got out of jail; my son was worried, and he hurried on to his work after he got out of jail, but —
"The Court: What else — did he say anything else to you besides what you have just stated? A. No, only that he didn't want me — would not take my home away from me.
"The Court: You said a little while ago he stated to you he was a lawyer. Did he say anything along that line? A. Yes.
"The Court: What was it? A. Well, he just said he was a lawyer, and he would help me out.
"The Court: You mean the defendant said — A. Yes; and then he told several around the neighborhood where I live — (Defendant objects to the testimony.)
"The Court: Sustained. Not what he told others, but what he told you at that time. What else did he say about representing you, or being your lawyer? What did he say, just his own words, as you recollect it? A. Well, he didn'ttell me that he would have anything to do with my case, for I did not know that I would have any case, but hetold my son that he would plead his case.
"The Court: Did he tell your son apart from you or in your presence? A. He didn't tell him in my presence. (Defendant moves to exclude the answer.)
"The Court: Well, that would be hearsay testimony. That statement there as to what was said by defendant to her son, gentlemen, is not to be considered by you as legitimate evidence. It is what was said to her, in order to induce her to make her signature. To Witness: You have related substantially all that he said to you before? A. Yes. He was in theoffice of Mr. McNeal when he told me that he would — that he was a lawyer, and that he would get the divorce and get the children for my son, and after that was when I signed the mortgage. It was after he told me that — I didn't sign the mortgage until he turned around and said that he would put my son back in jail if I didn't sign it, and that was after he told me he was a lawyer, and that he would represent me and get the children and get the divorce. * * * Jimmie is my boy; he was in jail; I wanted to get him out;I didn't care what I had to do to get him out, and I will tell you that I would be willing to do anything in this world to get him out, and when I first saw Mr. Addington, Jimmie knew him, and knew who he was. *Page 25 Jimmie knew all about him — I reckon he did. * * * When I signed the paper, of course, they had alreadytold me what they were going to charge me to get Jimmieout, and get the divorce, and get the children. * * * I went down to Jimmie's trial, but Mr. McNeal did not go with me, but he was there."
In answer to specific questions preceding each statement, witness answered:
"I made no objections to him representing Jimmie, and I wanted him to represent Jimmie; he was already out of jail, so that he could get out of his trouble together. I didn't know who my son would get for his lawyer. I was just down there, but I didn't know who he was going to get. I did not hire Mr. McNeal, or Mr. Addington, as my lawyer. I hired neither of them. It was up to Jimmie to hire them. I wanted to get Jimmie out, and let him do the hiring; but whatever lawyer he got was all right with me. I left that to him. I didn't know nothing about it. They did get the boy out like they told me he would get out — he got out on bond, and he hasn't been back in jail since. I signed the bond that he got out on, and so did my niece.
"Q. (by the Court). You may let me ask you one question, so that I can get it clear in my mind. When you first testified, you spoke of the defendant, Mr. Addington, saying that he was a lawyer. Did he tell you he was a lawyer, or your son? A. Well, he told me. Mr. and Mrs. Knight was in his office, and we were all sitting there talking. Q. Was that before you signed this (referring to the mortgage)? A. Yes. Q. He told you what? A. 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. Q. He had a son about 11 years old, that could plead law about as good as he could? A. That is what he said. Then he told several around there. * * * He told me that. Q. That is all you remember he told you about being a lawyer — that he had a son 11 years old that could plead law about as good as he could? A. Yes, sir; I didn't know nothing about him or his son either." (Bottom of page 46 of the transcript.)
Cross-examination: "Mr. John Gravit was in the office of McNeal at the time I signed the mortgage. Mr. McNeal was in his office, and we were in the one that went into his. Mr. JohnGravit came to the office of Mr. McNeal with me. Mr. JohnGravit was a friend and neighbor of mine, and he and Mrs. Knight all came to the office, and both were with me whenI signed the mortgage. Mr. Addington was not there at thattime. I don't think he was there."
The witness John Gravit testified:
"After Addison was released, three days after this, I went to the office of Mr. McNeal with Mrs. Woodruff, for her to make arrangements with Mr. McNeal to defend her boy. Mr.Addington was not present. While there, she made a mortgage to Mr. Addington."
The witness W.C. Martin testified:
"Mr. Addington did not tell her he was a lawyer, and as a matter of fact did not have anything to say to her. He talked with Mr. Addison, who seemed to know him."
The witness J.H. McNeal testified:
"Mr. Addington made no representation to her that he was a lawyer. She said she knew he was not a lawyer, but just worked for a lawyer. I defended her son in the police court, and he was convicted, and an appeal was taken. * * * There was no representation made to her by Mr. Addington. She stated in my presence that she knew Mr. Addington was not a lawyer, but, as he would take care of my fee, she would make the mortgage out to him, because she could not read or write, and rather deal with the one that she knew than with me. Mr. JohnGravit, a neighbor of hers, came into the office with her, and he fully understood why the mortgage was made out and executed by her."
The witness C.C. Martin testified:
"* * * Mr. Addington did not tell him that he was a lawyer, and, as a matter of fact, did not have anything to say to him, as him and Mr. Addison appeared to know each other."
Defendant testified on this subject:
"* * * I think she asked me why I did not makea lawyer, and I told her that I had a little boy that could beat me in the law."
Witness further testified:
"She knew I was not a lawyer, and she wanted to know why I did not make a lawyer. That is my recollection of the conversation that was had about the little boy. I don't remember whether she asked me whether I was a lawyer or not. I don't remember telling her that I was a lawyer. I don't remember whether she asked me that question. It is my recollection that that conversation came up — that she asked me to do something down at the jail — I would like to explain how that came about."
In answer to the question, "Did you or not tell her you were a lawyer?" witness answered:
"I tried to tell you. If she asked me whether I was a lawyer or not, I told her I was not. Later on, she said something about — what I was trying to tell you about — why I did not make a lawyer. It is probable, and I think, that I did at some time tell her that I was not a lawyer."
This evidence clearly shows that the only representation or statement made by the defendant to the prosecutrix touching his qualifications or ability as a lawyer was "that he had a son 11 years old at home that could plead law as good as he [defendant] could"; and it is utterly preposterous to say that this sustains the averments of the indictment that the defendant represented that he was a lawyer. It shows just the contrary. Furthermore, the course and manner of examination of this witness, and the frequent recurrence by the trial judge to the question as to what defendant had stated to the witness, show that to his mind the testimony of this witness was unsatisfactory. The evidence further shows that the controlling inducement to the signing of the mortgage was not the statement by the defendant, but the duress embodied in the threat to have the son of the prosecutrix put in jail; said threat being made in the absence of the defendant and possibly by McNeal.
For the reasons stated above, the writer is of the opinion that the rehearing should be granted, and the defendant awarded a new trial. *Page 26