
    Amos v. The State.
    
      Prosecution for Obtaining Goods under False Pretenses.
    
    1. Obtaining goods under false pretenses; admissibility of writing in evidence. — On. the trial of a defendant who is charged with obtaining goods by falsely pretending that he had money in the hands of a certain person, where the person from whom the goods were obtained testified that he wrote to the person in whose hands the defendant claimed to have money and received a postal card from such person saying he had no money belonging to the defendant, and the prosecutor further testified that he handed the postal card to the defendant who, on reading it, admitted he had lied about having the money , in said person’s hands, such postal card is admissible in evidence as explaining the defendant’s admission.
    2. Same; proof of commission of offense. — Where a defendant is charged with obtaining goods by falsely pretending that’ he had money in the hands of one M., the county superintendent of education of a certain county, in order to prove the commission of the offense charged, it is not necessary to show that said M. continued in office as such county superintendent up to the time the goods were obtained; the designation of county superintendent in such instance being merely descriptive of the person.
    
      3. Charge to the jury; presumption of innocence. — On the trial of a criminal case, a charge asserts a correct proposition which instructs the jury that “the legal presumption of innocence' is to be regarded by the jury in every case as a matter of evidence to the benefit of which the accused is entitled; and as a matter of evidence it attends the accused until his guilt is, by the evidence, placed beyond a reasonable doubt;” and the refusal to give such charge is erroneous and will work a reversal of a judgment of conviction.
    4. Same; reasonable doubt; argumentative charge. — A charge is properly refused as being argumentative, 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 consistent with the defendant’s guilt, but that it is wholly inconsisent with every other rational conclusion, • and unless the jury are so convinced by the evidence of defendant’s guilt that they would each venture to act upon that decision in matters of highest concern and importance to his own interest, then they must find the defendant not guilty.” (Burton v. State, 107 Ala. 108, and Brown v. State, 108 Ala. 18, overruled in so far as they hold that such charge is correct.)
    Appeal from tlie County Court of Bibb.
    Tried before the Hou. William L. Pratt.
    The appellant, William Amos, was prosecuted and convicted under a complaint ivhich charged that the said “Wm. Amos did falsely pretend to C. W. Brand, with intent to defraud that he had money in hands of J. W. Moore, county superintendent of education of Chilton County in said State, and by means of such false pretense, obtained from said C. W. Brand merchandise to the amount of eighteen 78-100 dollars, against the peace and dignity of the State of Alabama.”'
    On the trial of the cause the State introduced C. W. Brand as a witness who testified that on October 17, 1898, the defendant came to him and told him that he had some money in the hands of J. W. Moore, about fifty dollars, which was due him for a school he had taught in Chilton county, and that he, the defendant, wanted some goods; that thereupon on such representation, the witness let the defendant have on that day goods amounting to five or six dollars, and after that day, he paid orders drawn by the defendant on him to the amount of three or four dollars. Upon, this witness further testifying that he communicated with Mr. Moore, whom the defendant said had money belonging to him, the solicitor asked said witness whether or not he received a postal card from Mr. Moore about money due the defendant. To this question the defendant objected upon the ground that it was irrelevant, immaterial and illegal, and that no predicate had been laid for the introduction of such evidence. The court overruled this objection, and the defendant duly excepted. Upon the witness being handed a postal card, he identified it as the one received from, Moore, and further testified that the defendant Avas in his store at the time said card Avas received; that after reading it, he told the defendant that Moore stated on said card that he did not owe the defendant anything, and then handed the card to him; “that when the defendant read the card he said: ‘Mr. Brand I have lied to you about this matter, but please give me a chance.’ ” The defendant objected to this testimony, on the ground that it was illegal, irrelevant and incompetent, and that no predicate had been, laid for the introduction thereof. The court OArerruled the objection, and the defendant duly excepted. Thereupon the court, against the objection and exception of the defendant, alloAved the State to introduce in evidence said postal card, whicli Avas dated Clanton, Alabama, October 20, 1898, and which Avas addressed to C. W. Brand. ' Said postal card was in Avords and figures as follows: “Dear,Sir: — Your letter of recent date received, and in reply Avill say, that I have no money in my hands belonging to William Amos and have had none since July 1st, 1898. Respectfully, J. W. Moore ”
    J. W. Moore, as a witness for the State, testified that he Avas superintendent of education in Chilton county until September 30, 1898; that after that time he .was not such superintendent, and that on October 17, 1898, he had no money in his hands belonging to the defendant, and had had none in his hands after July 1, 1898, at Avhich time he had a settlement Avith the defendant.
    The evidence for the defendant tended to show that he did not make the representation as testified to by the Avitness Brand, but stated to him, that he expected to get some money which, he had earned.
    
      Upon the introduction of all the evidence, the defendant requested the court to give to the jury the folio tying written charges, and separately excepted to the court’s refusal to give each of them as asked: (1.) “The court charges the jury that, if they believe the evidence, they should find the defendant not guilty.” (2.) “Gentlemen of the jury, I charge you that the legal presumption of innocence is to be regarded by the jury in every case as a matter of evidence to the benefit of which the accused is entitled; and as a_matter of evidence it attends the accused until his guilt is, by the evidence, placed beyond a reasonable doubt.” (3.) “The court charges the jury that if J. W. Moore Avas not. superintendent of education for Chilton county on October 17, 1898, they should acquit the defendant.” (4.) “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 Avholly inconsistent Avith every other rational conclusion, and unless the jury are so convinced by the evidence of defendant’s guilt that they would each venture to act upon that decision in matters of highest concern and importance to his o\vn interest, then they must find the defendant not guilty.”
    Ellison & Thompson, for appellant.
    The court erred in admitting the postal card in eAddence. — Eiyhtower v. Oyletree, 114 Ala. 95.
    The court erred in refusing to give charge numbered 2 requested by the defendant. — Bryant v. State, 116 Ala. 446; Newsom v. State, 107 Ala. 134.
    The 4th charge requested by the defendant should have been given.- — Brown v. State, 108 Ala. 20; Burton v. State, 107 Ala. 110.
    Chas. G. Broavn, Attorney-General, for the State.
    The objection to the testimony in reference to the postal card and the motion to exclude the same are not Avell taken. * The matter of the receipt and contents of the card Avas but incidental to the admission of defendant that he had lied to Brand. And if the testimony Avas inadmissible in the first instance, it was cured by the subsequent testimony of the defendant and of Brand and Moore.- — Lawson v. State, 20 Ala. 66.
   SHARPE, J.

There was no error in allowing the witness Brand to testify to the receipt of the postal card from Moore saying he had no money belonging to defendant. Standing alone the card would have been only the hearsay statement of Moore and as such inadmissible. But in connection with the other evidence tending to show that the defendant upon reading it virtually admitted its contents by saying that he had lied about having money in Moore’s hands, the card was clearly admissible as giving point and meaning to the admission. Admission of criminating facts by a defendant and likewise statements made to a defendant respecting his guilt and not denied by him, when the circumstances are such as to naturally call for a denial in response, are admissible in evidence, though such evidence should be received with caution. — Lawson & Swinney v. State, 20 Ala. 65.

The complaint did not charge as a fact that Moore was the county superintendent of education. The material misrepresentation charged to the defendant and upon which Brand could Avell have relied was that he had money in the hands of Moore. The designation of Moore as the county superintendent of education, whether treated as a statement of the pleading or of the defendant, was made merely as descriptive of the person. It was not necessary to show Moore’s continuance in office in order to make out the commission of the offense.

Charge 2 refused to the defendant should have been given. One precisely similar was held good in Bryant v. State, 116 Ala.446, and that charge was based upon and its correctness is sustained by the opinion in Newsom v. State, 107 Ala. 133.

Charge 4 is a literal copy of instructions held correct in Burton v. State, 107 Ala. 108, and in Brown v. State, 108 Ala. 18, but which was in the later case of Rogers v. State, 117 Ala. 9, condemned as being argumentative. We adhere to the opinion rendered in the last mentioned case and the contrary opinion expressed in Burton’s Case and in Brown’s Case, supra, must be overruled.

For tbe error in refusing charge 2 tbe judgment of tbe county court will be reversed and tbe cause remanded.

Reversed and remanded.  