Carnell v. State

Fowler, J., delivered the opinion of the Court. The traverser, who is the appellant, was indicted in the Circuit Court for Allegany County, for obtaining goods under false pretenses. He demurred to the indictment, and his demurrer having been overruled and the State having ⁴ abandoned the second count, he pleaded the general issue, and was tried on the first count before a jury and convicted. He was duly sentenced to two years confinement in the penitentiary.

From this judgment the traverser has appealed. During the trial four exceptions were taken by the traverser to the exclusion and one to the admission of testimony, but the first, second and third having been abandoned, only the demurrer and the fourth and fifth exceptions remain to be considered. We have been unable to discover any ground upon which the demurrer could have been sustained. The indictment is in the usual form, and when taken in connection with the bill of particulars, which was demanded by the traverser and filed by the State, it would seem that the ■charge which the traverser was called upon to answer, as well as the false pretences by which it was alleged the goods were obtained, are fully and clearly set out.

Nor do we think that the indictment is defective in failing to allege the ownership of the goods. It alleges that they were “ the goods and chattels of the said Abram P. Gross, Jacob Gross and Solomon Gross, partners, trading under the firm name of Gross Brothers.” In the face of the express averment that the goods were delivered to the traverser upon the false representations therein set forth, there is nothing on which to base the contention that neither the indictment nor the bill of particulars alleges that the prosecutors were induced to part with their property by relying upon the truth of such statements. The averment that they parted with their goods upon the false statements so made by the traverser, is equivalent to saying that the goods were parted with in consequence of and relying upon such false statements. Fourth Exception. — The witness, Crawford, was called by the defence to prove that he lived in Burlington, W. Va., the home of the traverser, and that he knew him and his father well.

He was then asked whether the traverser owned any real estate at the place just mentioned, and if so, what was its value. The Court refused to permit this question ⁵ to be answered, and this refusal constitutes the fourth exception. The evidence sought to be adduced would seem to be altogether immaterial. Whether the traverser said at the time he obtained the goods that he owned a farm or whether in fact he did so own a farm of a certain value, can in our opinion have no probative force whatever in establishing his innocence of the matters charged in the indictment.

He is not charged with having made any such false statement, and even if he made it, it is not one of the statements upon which it is alleged the goods were delivered to him. Fifth Exception. — The traverser having testified in his own behalf, that at the time he obtained the goods in question he had been using opium and drinking beer and whiskey, and having denied that he said as alleged that he had money on deposit in the People’s National Bank of Hagerstown, he was handed over to the State for cross-examination. Being on cross-examination, the State offered the following letter which was found in the possession of the traverser, and admitted by him to be in his handwriting : “ Hayfield, Va., Feb. 22nd, 1896. “ Mr. A. B. Barnhardt, “ President People's Bank, Flagerstown, Md. “ Dear Sir : Please certify to the fact that I have $100 on int. at 4 per cent, in your bank, and oblige me. I want — use the money, and by giving a check dated July 2nd, ’1896, with a shave, I can get the money when I satisfy the parties it is right.

Please reply below and return in enclosed stamped envelope by return mail. “ Yours truly, “ J. P. Carnell.” The State then offered the following : “Hagerstown, Md., 2-27, ’96. “ To whom it may concern: “The above is all right. The money