Vaughn v. State

• Decision Date: 18 March 1919
• Docket Number: 3 Div. 338
• Citation: 81 So. 417,17 Ala.App. 35
• Parties: VAUGHN v. STATE.
• Court: Alabama Court of Appeals

81 So. 417

17 Ala.App. 35

VAUGHN v. STATE.

3 Div. 338

Court of Appeals of Alabama

March 18, 1919

Rehearing Denied April 8, 1919

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Frank S. Vaughn was found guilty under an indictment charging that he did buy, receive, and conceal, or aid in concealing certain stolen property, and he appeals. Affirmed.

Hill, Hill, Whiting & Thomas, of Montgomery, for appellant.

Emmett S. Thigpen, Atty. Gen., and David W.W. Fuller, Asst. Atty Gen., for the State.

BROWN P.J.

The verdict of the jury responds to the first count of the indictment, charging that--

The defendant "did buy, receive, conceal, or aid in concealing, thirty-three caddies of tobacco of the value of one hundred and sixty-four dollars the personal property of the Louisville & Nashville Railroad Company, a corporation, knowing that it was stolen, and not having intent to return it to the owner."

There was evidence tending to support the averments of the indictment, unless the contention of appellant that there was a variance in the averments and proof is sustained.

It was permissible, on cross-examination of the defendant's character witness De Weise, for the solicitor to question the witness respecting reports or rumors in the community tending to shed light on the estimate placed by the witness on the defendant's character, and it was not permissible for the defendant, on the redirect examination, to inquire as to the particulars of such reports. The defendant is limited to the proof of his general good character and had the benefit of any favorable lights respecting such rumors in the fact that, with a knowledge of such reports, the witness pronounced the defendant's character good. Stout v. State, 15 Ala.App. 206, 72 So. 762; s.c., 73 So. 1002; Sexton v. State, 13 Ala.App. 84, 69 So. 341; s.c., 195 Ala. 697, 70 So. 1014.

The questions of the solicitor did not call for a part of a specific conversation with or between particular persons, and the case of Davis v. State, 92 Ala. 20, 9 So. 616, and other cases cited by appellant, are not applicable.

As a predicate for the contention that there is a fatal variance between the averments and proof, entitling the defendant to an acquittal, the bill of exceptions recites that--

"It was admitted as a fact by and between the state of Alabama, through its solicitor, on the one part, and the defendant, on the other, that on the first day of April, 1918, the Louisville & Nashville Railroad Company was taken over by the United States government under and by virtue of an act of Congress entitled, 'An act to provide for the operation of transportation systems while under federal control, for the just compensation of their owners and for other purposes,' which act was approved March 21, 1918, and that from said date of April 1, 1918, up to the present time, said railroad has been so operated and was being so operated and controlled at the time of the alleged commission of the offense. This fact is admitted as being true."

This is an admission by the appellant that the corporation, as well as its physical property and facilities of transportation, was under federal control at the time of the commission of the offense, and carries with it the idea that the government, in assuming control of the transportation facilities of the country for military purposes, commandeered and mobilized the services of the carriers themselves. There can be no doubt that the same authority, inherent in the federal government, through which it has called into its service under a system of selective draft its citizen soldiery, may be used to commandeer and mobilize its corporate citizenship for the purpose of moving and supplying the army with the substances and material for military operation. So we are confronted with an admission that is not inconsistent with a policy within the range of governmental power, and though the admission may be inconsistent with matters of judicial knowledge, involving as it does a mere matter of procedure, the appellant having invited the action of the trial court on this admission of fact, he will not be allowed to gainsay it for the purpose of putting the court in error. Western Union Telegraph Co. v. Emerson, 14 Ala.App. 247, 69 So. 335; Travis v. Sloss-Sheffield Steel & Iron Co., 162 Ala. 606, 50 So. 106; Tygh v. Dolan, 95 Ala. 269, 10 So. 837.

Under this theory of federal control, the identity of the carrier--the corporate entity--has not been destroyed, nor has it been rendered wholly impotent in respect to its functions in the conduct of the business. It has merely become an agency of the government for the purpose of carrying out the policy of preferring the movement of troops, military equipment, and military supplies over matters of general commerce, and, as such agent, is a bailee of goods committed to it for transportation, and it is sufficient to lay the ownership of the goods in the corporation in an indictment for the larceny of such goods, or for like offenses. Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am.St.Rep. 22; Fowler v. State, 100 Ala. 96, 14 So. 860.

Moreover, the appellant's admission is not in conflict with matters of judicial knowledge. It is well settled that courts take judicial knowledge of all matters of common knowledge and public history and of statutes, both state and federal (3 Mayf.Dig. pp. 437-439), and likewise of the proclamations of the President of the United States and of general military orders (Jeffries & Jeffries v. State, 39 Ala. 655; Dooley v. Pennsylvania R.R. Co. [ D.C.] 250 F. 142; Muir v. L. & N.R.R. Co. [ D.C.] 247 F. 888; Marshall et al. v. Bush [Neb.] 167 N.W. 59, L.R.A.1918E, 385).

The act of Congress of August 29, 1916, to which the President's proclamation assuming federal control of railroads is referable, provides:

"The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable." U.S.Comp.St.1918, § 1974a.

The terms "system or systems of transportation" embodied in this statute have been construed by the President, the Congress, and the Director General of Railroads, to embrace, not only the property and facilities of transportation, but the transportation companies. From the proclamation of the President of December 26, 1917, we take the following:

"Now, therefore, I, Woodrow Wilson, President of the United States, under and by virtue of the powers vested in me by the foregoing resolutions and statute, and by virtue of all other powers thereto me enabling, do hereby, through Newton D. Baker, Secretary of War, take possession and assume control at 12 o'clock noon on the twenty-eighth day of December, 1917, of each and every system of transportation and the appurtenances thereof located wholly or in part within the boundaries of the continental United States and consisting of railroads, and owned or controlled systems of coastwise and inland transportation, engaged in general transportation, whether operated by steam or by electric power, including also terminals, terminal companies and terminal associations, sleeping and parlor cars, private cars and private car lines, elevators, warehouses, telegraph and telephone lines and all other equipment and appurtenances commonly used upon or operated as a part of such rail or combined rail and water systems of transportation; to the end that such systems of transportation be utilized for the transfer and transportation of troops, was material and equipment, to the exclusion so far as may be necessary of all other traffic thereon; and that so far as such exclusive use be not necessary or desirable, such systems of transportation be operated and utilized in the performance of such other services as the national interest may require and of the usual and ordinary business and duties of common carriers.

"It is hereby directed that the possession, control, operation and utilization of such transportation systems hereby by me undertaken shall be exercised by and through William G. McAdoo, who is hereby appointed and designated Director General of Railroads. Said director may perform the duties imposed upon him, so long and to such extent as he shall determine, through the boards of directors, receivers, officers and employés of said systems of transportation. Until and except so far as said director shall from time to time by general or special orders otherwise provide, the boards of directors, receivers, officers and employés of the vaious transportation systems shall continue the operation thereof in the usual and ordinary course of business of common carriers in the names of their respective companies."

U.S.Comp.St.1918, p. 274.

And from the proclamation of April 11, 1918:

"Now, therefore, I, Woodrow Wilson, President of the United States, under and by virtue of the powers vested in me by the foregoing resolutions and statute, and by virtue of all other powers thereto me enabling, do hereby, through Benedict Crowell, Acting Secretary of War, take possession and assume control at 12:01 a.m. on the 13th day of April 1918, of each and every system of transportation and the appurtenances thereof as follows, to wit: Clyde Steamship Company, a corporation of the state of Maine; Mallory Steamship Company, a corporation of the state of Maine; Merchants' & Miners' Transportation Company, a corporation of the state of Maryland, and Southern Steamship Company, a corporation

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