CASES IN THE SUPREME COURT OF ALABAMA. NOVEMBER TERM, 1904. Johnson v. The State. Indictment for Obtaining Money Under False Pre tenses. 1. Indictment for obtaining money under false pretenses; Code form sufficient. An indictment for obtaining money under false pretenses which follows the form set out in the Code (Criminal Code, Sec. 4923, form 48) is sufficient and not subject to demurrer. 2. Obtaining money under false pretenses; admissibility in evidence of confession; corpus delicti.-On a trial under an indictment for obtaining money under false pretenses, in the absence of independent evidence as to the falsity of the representations made by defendant, a confession of the defendant to the effect that such representations were false, is not admissible; and it is error for the court to refuse to exclude such confession upon motion made by the defendant upon the ground that the corpus delicti had not been proved. 3. Corpus delicti; when confession not sufficient to support conviction. A confession not corroborated by independent evidence of the corpus delicti is not sufficient to support a conviction of felony. APPEAL from the Criminal Court of Jefferson. Tried before the HON. DANIEL A. GREENE. The appellant in this case, W. E. Johnson, was indicted, tried and convicted for obtaining money under false pretenses. The first count of the indictment was in words and figures as follows: "The grand jury of said county charge that before the finding of this indictment W. E. Johnson, whose name is to the grand [Johnson v. The State.] jury otherwise unknown, did falsely pretend to Louis E. Brinkmeyer, with the intent to defrand, that he had and owned one-third interest in a United States Government certificate for the sum of fifty-eight hundred dollars, which had been given for work done in Mississippi for the United States Government, and by means of such false pretense obtained from the said Louis E. Brinkmeyer twenty-five dollars in lawful money of the United States of America." To this count of the indictment, the defendant demurred upon the following grounds: "1st. Said count fails to aver or show that defendant obtained money or property from any one by means of his said false pretenses. 2nd. Said count fails to aver or show that defendant obtained any money or property from L. E. Brinkmeyer or that said L. E. Brinkmeyer was injured or suffered by reason of said false pretenses." This demurrer was overruled. Upon the introduction of one L. E. Brinkmeyer as a witness for the State, he testified that about Dec. 15th, 1903, the defendant obtained $25.00 from him by representing to him that he had a draft or a Government certificate for $5,400 or $5,800, and that upon this representation he let the defendant have $25.00; that after defendant was arrested, he saw the defendant in jail, and without his making any threats or offering the defendant any inducement, the defendant stated that he had lied to him. The defendant objected to the witness testifying to the confession made to him upon the ground that the corpus delicti had not been proved; and after the witness had testified to the confession, he moved to exclude said confession upon the same ground. The court overruled the objection and motion, and to each of these rulings the defendant separately excepted. The facts of the case are sufficiently stated in the opinion. No counsel marked as appearing for appellant. MASSEY WILSON, Attorney-General, for the State. [Toliver v. The State.] MCCLELLAN, C. J.-The court did not err in overruling the demurrer to the first count of the indictment. It is in the Code form.-Code 1896, § 4923, Form 48, Criminal Code, p. 330. The case being tried on the first count, a primal ingredient of the offense was the falsity of the alleged representations whereby defendant obtained money from Brinkmeyer. Without proof of such falsity the corpus delicti was not shown. The only evidence offered to show that the representations were false was the confession of the defendant to that effect. In the absence of independent evidence in that connection this confession was not admissible, and should have been excluded on defendant's objection based upon the ground that the corpus delicti had not been proved; and the general charge should have been given for the defendant. "A confession not corroborated by independent evidence of the corpus delicti is not sufficient to support a conviction of felony."-Matthews v. State, 55 Ala. 187;Smith v. State, 133 Ala. 145; Stringer v: State, 135 Ala. 60. Reversed and remanded. TYSON, SIMPSON and ANDERSON, J. J., concurring. Toliver v. The State. Indictment for Robbery. 1 Robbery; conspiracy; admissibility of evidence.-Where two persons are jointly indicted for robbery, and the evidence tends to show not only that each of them participated in the robbery, but there was a conspiracy between them to commit the offense, it is competent, on a separate trial of one of them, to show what was said and done by the other defendant in furtherance of the common design, after the defendant who was being tried, had absented himself from the scene of the crime. 2. Same; admissibility of evidence.-On a trial under an indictment charging two defendants with robbery, and where there is a severance, it is competent for the defendant on trial to show that some other person, and not himself, was with his co-de 3. [Toliver v. The State.] fendant when the robbery was committed; but evidence as to the character of such other person in the community, is not admissible in evidence. Reasonable doubt; charge of court in reference thereto.-On the trial of a criminal case, a charge is erroneous and properly refused which instructs the jury that "before the jury can convict the defendant, they must be satisfied to a moral certainty, not only that the proof is inconsistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion, and unless the jury are so convinced by the evidence of the defendant's guilt, that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty." APPEAL from the City Court of Montgomery. Tried before the HON. WILLIAM H. THOMAS. The appellant in this case was tried and convicted under the following indictment: "The grand jury of said county charge that before the finding of this indictment, Shad Dean and Willie Tolliver alias Crack, feloniously took five bills of the denomination of five dollars each of the lawful currency of the United States of America, the property of J. J. Boyd, from his person and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama." A severance was demanded, and the defendants replied separately. It appears from the record that the defendant, who is the appellant in this case, demurred to the indictment, which demurrer was overruled by the court: but the demurrer is not set out in the record. Boyd, the person alleged to have been robbed, testified that he went down an alley-way, and while enroute he was assaulted by Shad Dean and Will Tolliver; that he recognized the two defendants when they assaulted him, that they struck him a blow which rendered him unconscious and that he did not regain consciousness until he had been removed to a stable near the scene, and the two men were then standing over him. He positively identified the defendant and Dean as the two men [Toliver v. The State.] who assaulted him and identified Dean as one of the men who were standing over him when he regained consciousness, but would not state positively that the other was the appellant, but gave as his best judgment that he was the man. He stated that when he regained consciousness he spoke to the men, whereupon the one whom he took to be the appellant, ran, while the other, Dean, remained and engaged in a conversation with witness. The State offered this conversation, to which the appellant objected, but the court overruled the objection, the testimony was admitted and defendant duly excepted. This witness also testified that in about a minute after the defendant ran off, Dean ran off in the same direction. The defendant objected to this testimony, and moved to exclude it. The court overruled the motion and the defendant duly excepted. The defendant attempted to show that the person who was with Dean at the time of the robbery was one Claud Henry, and during the examination of one of the witnesses introduced by the defendant, he was asked what was the character of Claud Henry in the community where he lived. The State objected to this question. The court sustained the objection, and the defendant duly excepted. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charge, and separately excepted to the court's refusal to give the same as asked: "Before the jury can convict the defendant, they must be satisfied to a moral certainty not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion, and unless the jury are so convinced by the evidence of the defendant's guilt, that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty." No counsel marked as appearing for appellant. MASSEY WILSON, Attorney-General, for the State. If a conspiracy in fact existed between the two parties to |