White v. State

• Decision Date: 02 March 1889
• Parties: WHITE v. STATE.
• Court: Alabama Supreme Court

5 So. 674

86 Ala. 69

WHITE v. STATE.

Supreme Court of Alabama

March 2, 1889

Appeal from city court of Mobile; O. J. SEMMES, Judge.

The indictment in this case contained six counts, to each of which a demurrer was interposed, "because said count does not allege that the alleged attempt to obtain money was made with intent to injure or defraud, or that said pretenses were made with any intent to injure or defraud." The court overruled the demurrer as to the first, fifth, and sixth counts, which were as follows: "(1) That William T. White did falsely pretend to the Louisville & Nashville Railroad Company, a corporation duly incorporated under the constitution and laws of Kentucky, with the intent to defraud, that two of his trunks, for which he held the checks of said company, and which he had shipped by said company over its road from Mobile, Ala., to Bluff Springs, Fla., had not been delivered to him by said company, and, by means of such false pretenses, attempted to obtain $200 from said company." (5) That said White "unlawfully knowingly, and designedly did pretend to the Louisville &amp Nashville Railroad Company, a corporation," etc., that said two trunks for which he held the checks of the company "had not been delivered to him, or come again into his possession, but were withheld from him by said company, by means of which said false pretenses he did then and there unlawfully, knowingly, and designedly attempt and endeavor to obtain from said company certain moneys, to-wit, $200, the value of said trunks, with the intent then and there to cheat and defraud the said company of the same; whereas, in truth and in fact, he had received the said trunks into his possession at Bluff Springs, Fla., as he well knew." (6) That said defendant unlawfully, knowingly, and designedly did pretend to said railroad company "that he had never received two trunks for which he had obtained, and then held the checks of said company, and which he had put in the possession of the said company at Mobile, Ala., to be transported for him to Bluff Springs, Fla., presenting the said checks to said company, as evidence of the fact that said trunks had never been received by or delivered to him by means of which said false pretenses said White did then and there unlawfully, knowingly, and designedly attempt to obtain from said company certain moneys, to-wit, $200, of the money of said company, with the intent then and there to cheat and defraud said company of the same, whereas" he had already received the trunks, etc.

Before demurring to the indictment, the defendant pleaded in abatement to each count, alleging that, "at the time of the commencement of this prosecution, there was pending in said city court a former indictment against defendant for the same offense in said count complained of." On motion, the court struck out each of these pleas as frivolous, to which action the defendant excepted. The defendant having pleaded not guilty, and the state having announced that it was ready for trial, the defendant stated to the court, as the bill of exceptions recites, "that he was not ready for trial; that he had not been arrested upon the indictment in this case until the cause was called for trial that day, when he was present in court under bond to answer another indictment then pending; that he had, for that reason, not had opportunity to obtain process of subp na for the attendance of his witnesses; that they lived at such a distance that it would be impossible for him to obtain their presence at the trial, if the case should now go on, and that he objected to being put upon his trial for the offense without an opportunity to procure the attendance of his witnesses." In support of this objection he filed an affidavit, stating that "there are two or more witnesses, whose testimony he is advised and believes is material to his defense in this case, and who are absent without any fault of his, and that he believes that he can procure their presence at the next term of the court." The court refused to continue the case, or to delay the trial, on this showing, unless the defendant would give the names of the witnesses, and state what he expected to prove by them; which he declined to do, and duly excepted to the action of the court in proceeding with the trial.

On the trial, as the bill of exceptions further shows, the prosecution proved that the defendant and his wife traveled over said railroad on the 19th day of May, 1887, from Mobile Ala., to Bluff Springs, Fla., where they resided; that they had two trunks with them, for which baggage checks were given, and these trunks were delivered on the railroad platform at Bluff Springs. Miss Maggie Byars, a witness for the state, who traveled with the defendant and his wife on the occasion referred to, and had assisted in packing their trunks, testified that she saw the trunks on the platform at Bluff Springs; saw Mrs. White take a hat and some other things out of one of them, and afterwards saw her wearing one of the dresses which had been packed in the trunk; but she further stated that the defendant was not present when she saw the trunks on the platform, having gone off for some purpose. The defendant objected, and excepted to the admission of this evidence, because he was not present at the time. W. T. Lewis, another witness for the state, testified that the defendant and his wife, on the day of their arrival at Bluff Springs, came out to his house, two or three miles distant, bringing two trunks with them; that both of the trunks had ropes around them, and strap checks on them; that he saw the defendant with the checks in his hand, and heard him say, holding them up: "Couldn't I give the railroad hell, if I had a mind to?" George Muntz, assistant baggage-master of the railroad company, who testified to the railroad's receipt of the trunks at Mobile, and the delivery of the check for them to the defendant, further testified that the defendant came to him, about six weeks afterwards, and said: "We never received that baggage, and I wish you would check it up, and find out as quick as you can what became of it." Gaylord B. Clarke, attorney for the Louisville & Nashville Railroad Company, testified, on the part of the prosecution, to his receipt of a letter, which purported to be signed by G. L. & H. T. Smith, as attorneys for defendant, and in which they made a demand for compensation on account of the alleged loss of the defendant's trunks. The defendant objected to each part of this...