Clampett v. State

• Decision Date: 11 October 1909
• Parties: CLAMPETT v. STATE
• Court: Arkansas Supreme Court

121 S.W. 934

91 Ark. 567

CLAMPETT v. STATE

Supreme Court of Arkansas

October 11, 1909

Appeal from Cross Circuit Court; Frank Smith, Judge; affirmed.

Judgment affirmed.

Smith & Smith, for appellant.

Hal L Norwood, Attorney General, and C. A. Cunningham, Assistant for appellee.

OPINION

MCCULLOCH, C. J.

Appellant, Lee Clampett, stands convicted of the crime of obtaining property under false pretenses, the charge being that he obtained from the agent of the railway company at Cherry Valley, in Cross County, Arkansas, upon the false and fraudulent representation that he was then the holder of a bill of lading therefor, a lot of personal property which had been consigned to the Merry Machine Works. The evidence establishes the fact that appellant had ordered from the last-named concern at Memphis, Tenn., the property in question (a lot of machinery and appliances for a sawmill), which was shipped from Memphis to Cherry Valley, Arkansas, to the order of the shipper, and the latter sent the bill of lading, attached to a draft on appellant for the purchase price of the property, to a bank at Cherry Valley, to be delivered to appellant on payment of the draft. Appellant paid the freight charges and received the property from the agent of the railway company, and hauled it to the mill without paying the draft and without procuring the bill of lading and surrendering it to the agent of the railway company. He has never paid for the goods at all.

The railway agent testified that appellant represented that he held the bill of lading, and that the consignment of freight was delivered to him on the faith of such representation. Appellant denied that he made any such representation; his contention being that he was not aware of the property having been consigned to the shipper's order. This was the issue involved in the trial of the case. The evidence was conflicting, but the jury has settled the issue by the verdict.

Appellant relies for a reversal of the case on the alleged error of the court in overruling his motion for continuance of the case to the next term, in order to procure the attendance of an absent witness, Tom Stevens by name. He set forth in his motion what he alleged to be the testimony of the absent witness, and the court, in overruling the motion, required of the prosecuting attorney an admission before the jury that the witness would give the testimony thus set forth. This was read to the jury as the testimony of the absent witness.

The court, in passing on the motion for continuance, heard testimony as to the diligence of the appellant and his attorney in attempting to procure the attendance of the absent witness. It appears from said testimony that the only thing done by appellant or his attorney was to hand to the clerk, four or five days before the trial, a list of his witnesses containing the name of this witness, with the word "Smackover" written opposite, indicating his...