The opinion
On Rehearing.
In oral argument and brief in support of the application for rehearing, appellant’s attorney calls our attention specifically and directively to a factual situation which appears to be a basis for a reversal of the judgment below.
The indictment in pertinent part alleges that appellant “did falsely pretend to F. E. Gibson, who was doing business as Gibson Lumber Company, with intent to defraud the said F. E. Gibson, that he, the said W. E. 'Holloway, had the sum of $1,423.52 on deposit and in his account, or the account of Holloway Lumber Company, in the First State Bank of Waynesboro, Mississippi * *
The nearest approach the State made to prove this allegation is contained in the testimony of Mr. Gibson. This is quoted in our original opinion. It will be noted that the witness stated specifically that the appellant did not tell him where the latter had the money.
*103 This proof was not sufficient to sustain the above quoted allegation of the indictment.
In the case of O’Connor v. State, 30 Ala. 9 , the Supreme Court held that a representation or pretense by the accused “that he had in Macon, Georgia the sum of seven thousand dollars” was a material variance from a pretense “that he had seven dollars less than seven thousand dollars in a bank in Macon.”
See also, Meek v. State, 117 Ala. 116 , 23 So. 155 ; 35 C.J.S., False Pretenses, § 49 (b), p. 700.
We were aware of the insufficiency in the proof in this aspect when we prepared the original opinion. We relied on the doctrine expressed in the case of Eaton v. State, 16 Ala.App. 405 , 78 So. 321 , to sustain the judgment below.
The facts in the case at bar will not permit an application of the rule stated in the Eaton case.
The transaction or trade with reference to the purchase of the lumber was consummated on the 18th of October. The property was delivered to the appellant on this date and shipped by rail to a designated place. The check in question was not delivered to the vendor until three days later, October 21st. All of this appears without dispute in the evidence.
It follows that the giving of the check, with its symbol or token that the appellant had the money on deposit in the bank, was not the inducement which caused the Gibson Lumber Company to part with the lumber.
We conclude, therefore, that the State failed in its proof to sustain material allegations in the indictment and the defendant was due the general affirmative charge.
The application for rehearing is granted.
The judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.