Bland v. State

• Decision Date: 30 June 1980
• Docket Number: 7 Div. 717
• Citation: 390 So.2d 1098
• Parties: Chester BLAND v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1098

390 So.2d 1098

Chester BLAND v. STATE.

7 Div. 717.

Court of Criminal Appeals of Alabama.

June 30, 1980.

Rehearing Denied Aug. 19, 1980.

Joel E. Dillard of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

The indictment on which appellant-defendant was tried and convicted was in pertinent part as follows:

"Chester Bland ... did falsely pretend to Moore-Handley, Inc. Homecrafters, with the intent to injure or defraud, that he was an agent of Miree Construction Corporation and by means of such false pretense did obtain from the said Moore-Handley, Inc. Homecrafters, building materials, the value of to-wit: $454.83."

The jury found him guilty, and the court sentenced him to imprisonment for seven years.

Two employees of Moore-Handley, Inc. Homecrafters testified on October 23, 1979, that defendant was at the place of business of said company at its Pelham store on March 13, 1979, and obtained material from the company which was placed in a truck that defendant was operating at the time. According to the testimony of one of the witnesses:

"Q. Was this a cash purchase or credit purchase?

"A. It was a credit purchase.

"Q. Did you have any discussion with the Defendant concerning any credit arrangement on this particular purchase?

"A. Yes, sir.

"Q. All right. What was the discussion?

"A. It was going to be charged to Miree Construction.

"Q. All right, what did he tell you, specifically?

"A. That he wanted to make a purchase and charge it to the account of Miree Construction.

"Q. Did he give you any other additional information than Miree Construction Company?

"A. Yes, sir, he gave me the job location.

"Q. What job location did he give you?

"A. 900 Building Oxmoor.

"Q. Did he give you any other information?

"A. Job Number.

"Q. And what is that Job Number?

"A. 780."

The other employee of Moore-Handley at Pelham also definitely identified defendant as the person operating the truck and obtaining the material. The material was never paid for by Miree Construction Company or by anyone else.

The payroll clerk for Miree Construction Corporation testified that Chester Bland was not an employee of Miree Construction Corporation and that he "was never on our payroll record at any time." She further said specifically that on March 13, 1979, Chester Bland "was neither an employee or a subcontractor" of Miree Construction Company. She further testified:

"Q. Let me ask you this, Mrs. Miree: On 3-13-79, did you have an agreement, or did the corporation have an agreement, with any subcontractor on a job No. 780?

"....

"Q. Could you answer that question, please, ma'am?

"A. We do not have a job 780.

"Q. Did you have an agreement with any subcontractor, or any individual, that was employed or in some contractual relationship with Miree Construction Company, to do any construction on the 900 Building on Oxmoor on 3-13-79?

"A. No, sir."

The evidence as a whole shows without dispute that the invoice of Moore-Handley for the particular transaction under consideration bore the purported signature of one James Cook, that the name Chester Bland was not on said invoice.

The defendant testified in the case. He unequivocally denied any knowledge of or participation in the transaction. He stated positively that he had "never been in Moore-Handley in Pelham." He further said that he had "never met anybody by the name of James Cook."

There was considerable other testimony in the case, but the above summary of some of it is sufficient to delineate the real issue of fact between the parties: Who falsely pretended to Moore-Handley, with the intent to injure or defraud, that he was an agent or representative of Miree Construction Corporation and thereby obtained the building materials? It was for the jury to determine that issue. There is no contention to the contrary. There was no contention on the trial, and there is no contention on appeal, that all of the elements of criminal fraud, or obtaining property by false pretense, did not exist.

On account of his indigency, counsel appointed by the court represented him to and through the trial. From the time of his appeal, including the hearing of a motion for new trial, he has been represented by different appointed counsel.

Appellant presents five issues. We consider them separately in the language and in the order of appellant's brief.

I DID THE TRIAL COURT ERR IN DENYING DEFENDANT'S MOTION FOR NEW TRIAL?

As stated by appellant, the motion was "based upon newly discovered evidence." The newly discovered evidence now relied upon by appellant is shown by the testimony of the attorney for defendant during the trial, and by the testimony of Mr. Christopher Shehee. The testimony of the former attorney for defendant was to the effect that he did not know of the alleged newly discovered evidence at any time before trial was concluded on October 23, 1979, which testimony appellant contends is sufficient to show that the newly discovered evidence could not have been discovered before trial by the exercise of due diligence. Although appellee does not definitely concede this point, we find it unnecessary to decide it at this time. We consider now the question whether Mr. Shehee's testimony is sufficient to justify a reversal of the ruling of the trial court denying the motion for a new trial.

The testimony of Mr. Shehee was strong and positive to the effect that on March 14, 1979, the day after the transaction as to the building materials alleged in the indictment, while he was employed by Moore-Handley at Pelham, he took part in two transactions with a man who represented himself to be James Cook who affixed his signature to two Moore-Handley invoices. He testified strongly that that man was not the defendant. He said he saw the purported James Cook sign each of the documents and receive the merchandise reflected on them. He further testified that he did not know the defendant and that he had never seen him before at Moore-Handley Homecrafters at Pelham. Counsel for appellant, with commendable frankness and citation of authorities, recognizes "the heavy burden carried by an appeal of a trial court's denial of a motion for New Trial based upon newly discovered evidence." He concedes the elements necessary to establish a right to a new trial on the ground of newly discovered evidence:

"In Taylor v. State, 266 Ala. 618, 97 So.2d 802, the Supreme Court held:

" 'To establish his right to a new trial on the ground of newly discovered evidence Notwithstanding the value of appellant's argument as to the existence of the first four elements stated above, we find little to support any contention that the newly discovered evidence was "not merely cumulative or impeaching," which constitutes the fifth element. When the test of that element is applied to the newly discovered evidence, consideration must be given to the crucial factual issue in the case, which was whether defendant was the person who fraudulently obtained by false misrepresentation building materials on March 13, 1979. Unless it had value for that purpose, it would have been without any value whatever; it would have been inadmissible as immaterial and irrelevant. It cannot reasonably be said, we think, that the evidence could not have had some value on such issue, but whatever value it could have had would have been cumulative only, evidence in addition to that presented by the testimony of witnesses for each party on the trial of the case.

the defendant must meet the following requirements: (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching.' " Young v. State, Ala.Cr.App., 346 So.2d 509, 514 (1977).

In considering the five essential elements, it is to be observed that the first element is as to the potency of the evidence; the second is as to the time of its discovery; the third is as to its discoverability before trial; the fourth is as to its materiality. Meeting the requirements of those elements adds nothing in and of itself to a compliance with the fifth element. The fifth element stands alone, and we find no authority for holding that the newly discovered evidence in this case is not cumulative merely.

In an effort to supply authority for his position on the point, appellant relies on Grissett v. State, 18 Ala.App. 675, 94 So. 271 (1922). He asserts in his brief:

"Though Grissett's conviction was based upon circumstantial evidence, the newly discovered evidence was similar to that of Chris Shehee in that it tended to prove the quilt of another to the exclusion of the defendant."

We find such statement correct, but it does not lead to appellant's desired result in this case. In Grissett, supra, defendant was convicted for the possession of a still for the manufacture of intoxicating liquor. In Grissett, supra, at 94 So. 272, it is stated:

"Except for the fact that the still found was located on land to which defendant held title, the evidence tending to convict the defendant was entirely circumstantial.... The newly discovered evidence offered in support of the motion was to the effect that the witnesses testifying had been to the still about a week before the officers found it and that it was in the possession, under the control, and was being operated by Snyder, and that defendant was not present, that the next day after the still was found by the officers Snyder called witness off and asked him if he had heard about the officers getting his (Snyder's) still...."

In that case, the possession or operation of one still only was involved. In this case, insofar as the new evidence is concerned, three...