¶1
On Application for Rehearing.
This case has received careful consideration on the application for rehearing by Judge PELHAM and Judge EVANS, who concurred in the majority opinion of the court written by PELHAM, P.J., on the original submission, and they think the questions dealt with are correctly treated and disposed of in that opinion. We adhere to that opinion, and can see no good reason or beneficial purpose to be served by promulgating a lengthy opinion on this application, containing a rediscussion of the questions we deem properly disposed of on sound reasoning and good authority in the original opinion. The cases cited in the majority opinion of the court will be found, upon investigation, in every instance to support the holdings they are cited in connection with. There is nothing in any of the numerous array of cases cited in Judge BROWN'S additional opinion of some length, which he seems to think necessary to promulgate on this application, *21
to elucidate his minority views, that is in the way of what is said, or the conclusions reached, by the majority of the court in the original opinion.¶2 We have again, with painstaking care, reviewed the facts in the case, and are of the opinion, as heretofore expressed, that there is ample evidence to sustain the jury's verdict, and that the trial court cannot be said to have committed reversible error in overruling the defendant's motion for a new trial, under the familiar rule of law applicable to review here of the trial court's rulings in denying motions for new trials, based on the ground that the verdict is contrary to or not supported by the evidence. The witness Mrs. Woodruff seems to have been a rather illiterate, elderly woman, unable to give a very intelligent version of the transaction; but her testimony, taken as a whole, does not seem to us to be open to any other fair and reasonable construction than that the defendant made false representations to her about his being a lawyer, that induced her to execute a mortgage to the defendant for the purpose of securing an attorney's fee to him to obtain his services as a lawyer to represent her son. If she was not misled and deceived by the defendant assuring her that this was the purpose for which the mortgage was given, why was it executed at his instance to him? It was not disputed that the mortgage was executed by this old lady to secure an attorney's fee for the services of a lawyer to assist her son out of his troubles. The evidence shows without contradiction that the defendant procured the mortgage from her and that it was executed to him. Mrs. Woodruff testified positively that the defendant stated to her that he was a lawyer and would represent her son as such. Her testimony as a whole and the attending circumstances bear out the reasonableness and truth of this statement. One or two isolated or detached sentences in her testimony may be seized upon and stressed to detract from the effect of her testimony and the corroborating circumstances; but clearly this was a question of fact, properly submitted to the jury, and was resolved by the jury against the defendant. The trial court, possessing the advantage of having the witnesses before it, entertained the opinion that the jury was justified, under the evidence adduced upon the trial, in its conclusion, and a careful consideration of the evidence set out in the record leads us to the same conclusion, and we would feel unwarranted in overturning the verdict of the jury and holding the trial court in error in its ruling and reverse the judgment.
¶3 The application for a rehearing is denied.
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Status
Disposition: Affirmed, and petition for fehearing denied
Case posture Disposition Affirmed, and petition for fehearing denied. Posture Appeal from Criminal Court, Jefferson County; William E. Fort, Judge.
Jacob L. Addington was convicted of securing the signature to a mortgage by false pretenses, and he appeals. Affirmed, and petition for rehearing denied.
The second count of the indictment sufficiently appears, but in the indictment the mortgage alleged to have been obtained under false pretenses is set out in full. The oral charge of the court and the exceptions thereto are as follows:
Now, gentlemen, you have listened to this case from the beginning to the end, and have heard the evidence on both sides, and have listened patiently to the arguments of counsel for the state and for the defendant. You recognize that you are not here for the purpose of doing a favor to either side, neither to the state nor the defendant. You are not here for the purpose of doing anything in this cause, except to establish what is the truth, from the evidence in this case, and under the law which the court will give you in its charge. Twelve men have been selected, as jurors, because of their impartiality, their everyday experience in affairs of life and intelligence, in order that they may determine the issues in this case justly, intelligently, and without fear or favor. You, gentlemen, being those selected, become officers sworn to establish the truth as you see the truth to be, from the evidence in the case. Now you, gentlemen, are the sole judges and the exclusive judges of the evidence, and you are entitled to apply to the evidence in the case as you have heard it from the witness stand, your everyday common sense and experience, your intelligence and your judgment, what you have gathered from dealing with men and affairs, in the ordinary affairs of life. You likewise may consider, not only the spoken words of the witnesses, but may look behind those spoken words for any interest which the witness may have in the case, and any bias or prejudice, or anything which might sway the witness aside from the path of truth. The motive, then, of each witness in the case, may be looked to by you in determining what weight you will give to the testimony of each of the witnesses in the case. You have the right, of course, to reject any portion of any witness' testimony which you believe to be untrue; the general rule of law being to accept the true and reject the false, because, remember, gentlemen, that all through the case truth is what you are trying to arrive at, from all the testimony, from all of the witnesses in the case, so that in this court justice may be founded upon truth. You have the right to observe the manner of each witness while testifying on the stand, his facial expression, in order to determine from that, and from the evidence or testimony, and from his own words, what the truth is in the case. Now the presiding judge, gentlemen, is required to give the jury a statement, as clearly as possible, of the law of the case. The presiding judge is the judge of the law. He is here to interpret that law to you, so that you may understandingly apply the law to the evidence. I will give you, gentlemen, as briefly as I can, and as clearly, my understanding and interpretation of the law of Alabama as applied to the charge made against the defendant by the indictment in this case, and as all other phases thereof covering the rights of the defendant and the charge made against him.
The first count of this indictment, gentlemen, I charge you, you cannot convict upon, because of its failure to set forth an instrument which on its face would be capable of forgery. There is a defect in the instrument as set out; that is, in the acknowledgment. The instrument does not appear in that count to be acknowledged, as it is in the second count of the indictment; the second count of the indictment, therefore, will be the only count or charge made before you against the defendant at bar. Now that count, gentlemen, does not charge forgery, but it charges an offense under section 6921 of the Code, under the general heading of fraud. That section reads as follows: Any person who, by any false pretense or token, and with intent to injure or defraud, obtains fom another his signature to any written instrument, the false making of which is forgery, must, on conviction, be punished as if he had forged the instrument. It is under the general statutes known as obtaining money or other goods by false pretenses, but charges not the obtaining of money or goods, but the obtaining of the signature of another to any written instrument, the false making of which is forgery. Now you will observe, gentlemen, from the very reading of the Code, that there are certain essential elements — that is, certain essential things — that must exist before the offense can be made out. The indictment charges an offense under that section, and it is necessary to prove beyond 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 a 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, as charged, that he was a lawyer? If so, was it false or true? Now you have heard the evidence on that subject, both that on bahalf 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 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 party 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 an intent to defraud;
whether or not it is true, applying to it your own judgment, your own experience, and your 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, 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 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. Of course, it must have occurred within that period in order to be actionable, because, if it did not happen within three years before the indictment was found, it would be barred by the statute of limitations, and it must have been in this county. So those are facts you have to find from the evidence in this case, after considering all the evidence on each side.
That the third essential element of obtaining a signature by false pretense is that the signature was obtained by means of such false pretense; and that is for you to say, gentlemen, after you have heard the evidence and the law, just what you think to be true, with reference to each of the allegations of the indictment. Of course, you have to believe beyond a reasonable doubt that there was such an instrument signed, as is set forth in the second count of the indictment, that Mrs. Rachel Woodruff signed that, and under the charge of the court that it was such an instrument as would be capable of forgery. Now the court charges you that instrument set out in this second count of the indictment is a mortgage, and being acknowledged, and signed and acknowledged and witnessed, that this is such an instrument as would be capable of forgery. Let me read you, in order that you may not misunderstand the technical features of the law, from the case of Woodbury v. State of Alabama, an Alabama decision, which is a leading authority on this question. It referred, of course, to obtaining goods or money under false pretenses, but the same principle applies to that, as it would to obtaining the signature by false pretenses. A false pretense, to be indictable, must be calculated to deceive and defraud. As of an actionable misrepresentation, it must be of a material fact, on which the party to whom it is made has a right to rely; not the mere expression of an opinion, and not of facts open to his present observation, and in reference to which, if he observed, he could obtain correct knowledge. Whether the prosecutor could have avoided imposition from the false pretense, if he had exercised ordinary discretion and prudence to detect its falsity, is not a material inquiry. As a general rule, if the pretense is not of itself absurd or irrational, or if he had not, at the very time it was made and acted on, the means at hand of detecting its falsehood, if he was really imposed on, his want of prudence is not a defense. * * * The false pretense must not only be, however, of a material fact, but it must have been, not the sole, exclusive, or decisive cause, but a controlling inducement with the prosecutor for the transfer of his money or property. Other considerations may mingle with the false pretense, having an influence upon the mind and conduct of the prosecutor; yet if, in the absence of a false pretense, he would not have parted with his property, the offense is complete. * * * But if without the false pretense he would have parted with his property — if that is not an operative, moving cause for the transfer — if he did not rely and act upon it, there may be falsehood, but there is not crime. Woodbury v. State, 69 Ala. 245 , 44 Am. Rep. 515.
Now, gentlemen, the law in reference to the question of presumption of innocence and reasonable doubt is this: That whenever a man is charged with any crime or other offense against the law, whether it is a felony or misdemeanor, he is presumed innocent until his guilt is established by the evidence, beyond a reasonable doubt. That presumption of innocence goes with him until the evidence establishes his guilt beyond a reasonable doubt. When the evidence does establish his guilt beyond a reasonable doubt, then the presumption of innocence ceases. But until that time that presumption goes with him as a matter of evidence to which he is entitled, as a matter of evidence and of policy. Now, you being men of intelligence and judgment, accustomed to exercise reason in the ordinary affairs of life, when you have heard this testimony and considered it all on both sides, fairly and impartially, seeking the truth, if you have left in your minds an actual substantial doubt that the defendant is guilty as charged, then you should give him the benefit of that doubt and acquit him. On the contrary, if you are convinced of his guilt from the evidence in the case, so that you have no such doubt left in your mind that he is guilty as charged, then you should convict him, provided the offense occurred in this county, and within the next three years preceding the finding of the indictment. The law says you must be satisfied in a criminal case to a moral certainty. A moral certainty does not mean, of course, an absolute certainty, or a mathematical certainty. If the law laid down that standard, it would be impossible to arrive at the truth with that standard, because you have to rely on human testimony, with all of its imperfections and frailties, and there could not be absolute truth with absolute certainty, and the law says not then with absolute certainty, but to a moral certainty. That is such a certainty of guilt from the evidence that you have no reasonable doubt of his guilt left in your mind. Now, if you are convinced of the defendant's guilt in this case to that degree of certainty where you have no reasonable doubt left in your mind after considering all of the evidence, then you are convinced to a moral certainty; otherwise not.
The showings that have been offered in evidence, gentlemen, mean that where one side has absent witnesses, and presents to the opposing side a statement on oath as to what that witness or those witnesses would testify, if present, the other side is required to admit that, if those witnesses were present and testifying, they would testify as set out in that showing. Of course, the party admitting the showing does not
admit — that is, is not required to admit — that the statements set out in the showings are true; in other words, that the statements made by the witnesses would be true, if made by them, but are required to admit that that witness or witnesses — those witnesses who are thus absent — would, if present, testify as set forth in the showing; and as to what weight shall be given to any statement given by a witness, as set forth in a showing, is a question for you to decide, weighing the statement in the light of other evidence, and in the light of your experience and judgment, giving to each portion of it such weight as you think it ought to receive, you being the judges of the evidence, and the showing being evidence in the case, and entitled to your consideration as such.
A verdict, gentlemen, means a true saying of 12 impartial men, who have agreed upon the truth as they see it, from the evidence. It takes 12 men to convict in any criminal case, and it takes 12 men to acquit — an agreement of 12 men. Therefore, in order for a verdict of acquittal, an agreement of 12 men is necessary, and it takes for a conviction an agreement of 12 men. Now the law requires you to take this evidence, and go over it, and discuss it, and, if you can do so, then reach a verdict which expresses the opinion of each individual juror, the truth of the case. If you cannot, well, of course, then there cannot be any verdict of any kind rendered. If you should find the defendant guilty as chargeed in the second count of the indictment, the form of the verdict, should be, We, the jury, find the defendant guilty as charged in the second count of the indictment. The court fixes the punishment in cases of the offense charged against the defendant, in case you find him guilty. If you find the defendant not guilty, the form of your verdict should be, We, the jury, find the defendant not guilty.
To remove any doubt on that proposition the counsel objects, or rather excepts, to my statement that the state is required to admit a showing. That statement means this: It is required to admit that, or have the case continued, one thing or the other. They are required to admit, in order to go to trial, the showing of the other side as to absent witnesses, or a continuance shall be permitted — results. It is for the court to decide whether a continuance shall be permitted, provided the court has acted upon a proper evidence before it and in the light of its judgment.
Defendant's Counsel: We desire to except to that part of the charge beginning with the words It is not necessary, to the effect it is not essential to establish each representation by the evidence, and that the establishment of any one would be sufficient. Your honor understands my point?
The Court: 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.
Defendant's Counsel: We except on that point.
The Court: Yes; I understand that is your point, but we do not agree on the law on that proposition.
The Court: I give you, gentlemen, a number of charges in writing requested by defendant's counsel in this case; it being the law that wherever either side requests of the trial judge special charges in writing covering any phase of the law in the case, if those charges state the law correctly with reference to the matters to which they refer, then the presiding judge must give them, and read them to the jury as a part of the law of the case. They are to be considered in connection with the general or oral charge, which I have already delivered, as a part of the law in the case, good law in reference to the matters to which they refer.
That part of the oral charge of the court, excepted to as above stated, was 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 state 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 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. Source: CourtListener
