White v. State , 86 Ala. 69 ( 1888 )

SOMERYILLE, J.

1. Tlie several pleas in abatement, setting up the fact of the pendency of another indictment against the defendant for the same offense, at the time of the commencement of the present prosecution, presented no sufficient defense to the present indictment by way of abatement, or otherwise. “The pendency of an indictment is no ground for a plea in abatement to another indictment, in the same court, for the same cause.” — "Wharton’s Cr. Pl. & Pr., § 431; Code, 188G, §§ 4390-4394. But an acquittal or conviction, under either indictment, would be a good plea in bar to the other indictment, in a trial on the merits. 2 Greenl. Ev. (14th Ed.), § 26, note (a); Dutton v. State, 5 Ind. 533; Com. v. Drew, 3 Cush. 279. The trial court correctly sustained the motion to strike these pleas from the file as frivolous.

2. The'demurrer to the indictment was properly overruled. The statute allows the intent to be alleged in the same count in the alternative — “to injure or defraud.” Crim. Code, 1886, §§ 3811, 4383. The averment of an intent to defraud, alone, was clearly sufficient. —Carlisle v. State, 76 Ala. 75; Crim. Code, 1886. Form 47, p. 272.

3. It is earnestly insisted, that the defendant was precipitated into the trial of this cause, immediately after being arrested, without opportunity to prepare for his defense, or to summon his witnesses; and that the action of the court was in violation of a constitutional right of the defendant, derived from section 7 of the Declaration of Rights, providing that, in all criminal prosecutions, the accused has a right “to have compulsory process for obtaining witnesses in his^ favor.” — Const. 1875, Art. I, sec. 7.

The established rule in this State is, that the grant or refusal of a continuance rests in the sound discretion of the trial court, and is not revisable on error.- — -1 Brick. Dig., 774, §§ 2, 3; 1 Brick. Dig. 404, § 1. Whether there might, in a possible case, exist such a gross and palpable abuse of this discretion as to authorize a reversal, we do not decide. We discover nothing to except the present case from the general rule above stated. The court had a clear right to put the accused to a showing, with the view of testing the merits of the application, and thus enlightening the exercise of the judicial discretion. The refusal of the accused to state the names of his witnesses, and what he expected to prove by them, or else to show good reasons for such refusal, when lie was required to do so by tbe court, certainly justified tbe action of tbe court in refusing to continue tbe cause.

4. "While tbe law protects certain confidential communications professionally disclosed between an attorney at law and bis client, on grounds of public policy, there are some transactions between them as to which ' tbe attorney may be compelled to testify without violation of this rule. He may be compelled to state tbe fact of bis employment — i. e., that be is or was tbe authorized attorney of tbe client as to a certain transaction (M. & M. Railway v. Yeates, 67 Ala. 164); and to testify as to any matter disclosed to him by tbe client, which was manifestly not intended to be private or confidential, but was intended to be communicated to tbe adverse party. — 1 Greenl. Ev. (14th Ed.), §§ 244-245. • There are numerous other exceptions; such as proving the identity or bandwriting of bis client, tbe payment of moneys to him, tbe execution of papers by him, which tbe attorney attested as tbe subscribing witness, and like cases.

Tbe trial court did not, in our opinion, go further than legally authorized in its examination of tbe witness, Harry T. . Smith, who was tbe attorney of tbe accused, nor require him to make any disclosure in tbe present case not warranted by law. He was only required to state facts tending to prove bis employment by tbe accused to demand of the Louisville & Nashville Railroad Company compensation for tbe trunks alleged to have been lost by tbe negligence of tbe company, and tbe delivery to tbe attorney of tbe baggage checks as evidence of tbe company’s liability.

5. These baggage checks, if genuine, might be prima fade evidence of the fact that tbe passenger’s baggage bad been delivered to tbe railroad for transportation, and, taken in connection with tbe passenger’s ticket, or other corroborating evidence, would impose an obligation upon tbe company to carry the baggage through to tbe station to which it was checked. And tbe possession of tbe checks by tbe claimant would tend, to prove that tbe baggage bad not yet been delivered to him. — 3 Wood’s Railway Law, p. 1521-1522, § 403. Tbe fact was undisputed on the trial, that tbe two trunks in question bad been delivered to tbe railroad, to be transported to Bluff Springs, Florida, and tbe checks were given tbe defendant as evidence of this fact. A claim upon tbe company for failure to deliver these trunks, necessarily bad relation to this contract to deliver at this particular destination. Tbe mistake made by the defendant’s attorney, in his letter to the railroad authorities, in which he spoke of the trunks as checked to Blount Springs, Alabama, does not constitute a variance between the false pretense charged and that proved. It is no where proved that this letter correctly recites the representation authorized by the accused to be made through the agency of his attorney. The jury was authorized to infer, as they did, that the false pretense attempted to be practiced upon the railroad company had reference to this obligation imposed by the baggage checks themselves, which was one to deliver, not at Blount Springs, Alabama, but at Bluff Springs, Florida. The attorney, having been employed to assert a claim against the railroad company based on these checks, as the evidence tends to prove, possessed the incidental authority to do everything necessary to the prosecution of such a demand by suit or otherwise, and within the scope of his authority his action was that of his client.

6. The evidence showing that the wife of the accused was present, although he himself was not, when the trunks were delivered on the platform at Bluff Springs station, Florida, was relevant, in connection with the fact that she was shown to have taken clothing from the trunk, and to have worn some of it afterwards, under circumstances which might well have justified the inference that her possession of this clothing at that time was known to the accused. He had traveled with her on the train, and the evidence tends to show that he was in her company when the trunks were hauled from the station, to the house of the witness Lewis. These circumstances not only tended to show the proper delivery of the trunks, but to establish the defendant’s knowledge of the fact, which was pertinent to the issues of the present case. The possession of the trunk keys, moreover, by the wife, tended to prove her authority, as agent of the husband, to take custody of the baggage, and have access to it.

Under these principles, the rulings of the court on the evidence were free from error. No exceptions are otherwise taken, so far as appears from the record.

Affirmed.