#### McIntyre *v.*The State.

*False Pretense.*

(Decided May 9, 1911.

55 South. 639.)

1. *Appeal and Error; Review; Objections Below.*— Where a defendant fails to object to questions calling for testimony he may regard as objectionable, he is not in position to complain of the admission of such testimony.

2. *Trial; Evidence; Waiver of Objection.*— Where the defendant voluntarily introduces the same evidence to the admission of which he had previously objected, he waives his objection.

3. *False Pretense; Repayment of Money; Evidence.*— The fact that the defendant did or did not'repay the money is immaterial with respect to the offense of obtaining money by false pretense, and- hence, *201it was error to permit the state to show that the defendant did not repay it.

4. *Same; Evidence.*— Under an indictment for obtaining money under false pretenses, it appearing that the defendant had agreed to execute a mortgage on both realty and personalty, it was not permissible for the lender to state how much money he would have let the defendant have if the realty had not been included, since it called for the undisclosed purpose of the witness.

5. *Same.*— The fact that a mortgage to secure payment was given after obtaining the money does not preclude a prosecution for obtaining money under false pretenses.

Appeal from Mobile City Court.

Heard before Hon. O. J. Semmes.

Wallace McIntyre Avas convicted of obtaining money by false pretenses, and appeals.'

Reversed and remanded.

Tbe indictment charged that defendant, Avith intent to defraud, did falsely pretend that he had one sorrel horse, named Charlie, seven years old, and one black mare mule, named Maud, six years old.

When the Avitness Davis Avas on the stand, the bill of exceptions shoAvs that he testified that he avouIc! let him have the money if he had the right kind of collateral, and that defendant offered Avitness a mortgage on some land; that this was the day before the mortgage was drawn. The defendant objected to the testimony as to the mortgage being drawn, because it was a conclusion of the witness. Further testifying, the Avitness stated that, the day he let the defendant have the money, the defendant told him that he had other property which he would hypothecate with the land, and that it was a mule, a horse, and a yoke of oxen. The defendant objected to any testimony as to the yoke of oxen, because-same was not mentioned in the indictment. The witness Tucker, testifying, stated among other things that he went to defendant’s home, but was unable to find him, and that afterAvards, in November, 1909, defendant came to witness’ office*and that he understood defend*202ant had been arrested at that time. The defendant objected to tbe statement tbat defendant bad been arrested at tbat time.

T. J. Bedsore, for appellant.

Tbe testimony, as to tbe yoke of oxen was *irrelevant.*— Meeks *v.*State, 117 Ala, 116; *O’Connor v. The*State, 30 Ala. 9. Tbe court erred in admitting tbe *mortgage.*— Mack *v. The State,*63 Ala. 138; *Meeks v. The State, supra; Cook v. The*State, 162 Ala, 93. Tbe court erred in permitting tbe state to prove that tbe defendant bad not repaid tbe *money.*— Meeks *v. The State, supra.*Tbe defendant should h'ave been allowed to show bow much money would have been loaned if tbe realty bad not been in*cluded.*— Mack *v. The State, supra; Woodbury’s Case,*69 Ala. 242. Tbe witness could not testify tbat tbe defendant’s statement was voluntary.- — 47 So. 100. It was competent for tbe defendant .to testify tbat be intended in good faith to repay tbe *money.*— O’Connor *v. The State, supra;*19 Cyc. 446; 5 Enc. of Evi. 744; 15 Hun. 347. Charge 4 should have been given. — 19 Cyc. 404. Charge 6 should have been *given.*— O’Connor’s *Case, supra.*

Robert C. Brickerr, Attorney General, and W. L. Martin, Assistant Attorney General, for tbe State.

Error must affirmatively appear to work a reversal.— *Wright v. The State,*108 Ala, 60. No objection was interposed to questions calling for certain evidence and tbe court cannot be put in error for refusing to exclude *it.-*— Mcoalman’s *Case,*96 Ala. 98; *Billingsley’s Case,*96 Ala. 126. Tbe defendant’s representation regarding bis ownership of tbe oxen was properly admitted as part of tbe res *gestae.*— Horn *v. The State,*102 Ala. 150; *Curtis y. The State,*118 Ala. 131. There was no error in admitting tbe *mortgage.-5*— Laiason *v. The State,*
      *20320 Ala. 78. The intentions of the lender were not ad*missible.*— Meek’s *v. The State,*117 Ala. 123. The confession of the defendant that he had never owned the property was properly *admitted.*— Newell *v. The State,*115 Ala. 61; *Barton v. The State,*107 Ala. 25. The defendant could not testify as to his unexpressed inten*tion.*— Holmes *v. The State,*136 Ala. 84; *Wheelis v. Rhodes,*74 Ala. 19. The price paid for the land was *immaterial.*— Whittaker *v. The State,*160 Ala. 632. Charge 8 was *bad.*— Finch *v. The State,*81 Ala. 41; *Jejferson v. The State,*110 Ala. 89. Charge 9 was properly *refused.*— Turner *v. The State,*97 Ala. 57. But the court erred in allowing proof that defendant had not repaid the *money.*— Meek *v. The State, supra; Carlisle v. The State,*77 Ala. 71.

WALKEB, P. J.

For anything that appears in the bill of exceptions, the statement of the witness Davis as to a remark made to him by the defendant “before the mortgage was drawn” may have been called for by a question of the solicitor, which was not objected to by the defendant, asking what the defendant said “before the mortgage was drawn.” If so, there was no error in the refusal of the court to exclude the quoted statement of the witness as to the drawing of the mortgage, as a party should not speculate upon the answer to a question calling for testimony which he may regard as ob*jectionable.*—Billingsley *v. State,*96 Ala. 126, 11 South. 409. A like consideration disposes of the exception to the action of the trial court touching a statement by the same witness in reference to a yoke of oxen, and also the exception to the action of the trial court in reference to defendant’s objection to the statement by the- witness Tucker in reference to an arrest of the defendant.

When examined as a witness in his own behalf, the defendant voluntarily stated that he executed the mort*204gage to Davis, and testified as to the details of that transaction. By so doing he abandoned his objection, previously made, to the introduction of that instrument in evidence. It is not intended to be intimated that there was merit in that objection, on the grounds stated, when it was made.

Following the rule made in the case of *Meek v.*State, 117 Ala. 116, 23 South. 155, it must be held that there was error in permitting the state, against the objection of the defendant, to prove that the defendant did not pay the debt contracted. If defendant, when he obtained money, had no intent to defraud, or had not made the alleged false pretense, he ivas not guilty, whether he afterwards paid the debt contracted or not, and without regard to whether he afterwards formed a fraudulent intent not to pay.

The defendant, in ashing the witness Davis the question, “How much money would you have let the defendant have, if the land had not been included with the horse and mule?77 called for the undisclosed purpose or intention of the witness, and there was no error in sustaining the objection interposed by the state to the question.

If by the false pretenses alleged, made with intent to defraud, the defendant obtained money from Davis, as charged in the indictment, it was not a ground for excluding the evidence tending to show the obtaining of the money by the alleged false pretenses, made with intent to defraud, that the mortgage given to secure the repayment of the money so obtained was executed after the money was paid.

Other questions presented may not arise on another trial, and they need not be considered. Because of the error above stated, the judgment must be reversed.

Reversed and remanded.