17 Ga. App. 211 | Ga. Ct. App. | 1915
The defendant was indicted for the illegal sale of crops under lien, and was convicted. His motion for a new trial was overruled, and he excepts to that judgment.
The controlling question in the ease is raised by the general grounds of the motion for a new trial, and in connection with them we shall deal with the assignment of error contained in the 5th ground, in which it is contended that the court erred in not charging the jury that if the defendant merely lent a part of the cotton which was under lien, intending to satisfy the lien with cotton of equal value, then he would not be guilty. The indictment charged that the defendant, being a tenant of one Stovall, executor, and
We can not concur in the opinion of counsel for the plaintiff in error that a tenant or cropper who merely lends a part of a crop which is subject to the landlord’s lien for rent or supplies advanced to aid in making the crop would not be guilty of violating the statute which forbids him to sell “or otherwise dispose of” any portion of the crop. Penal Code, § 721. To hold this would be to destroy the protection referred to by Justice Simmons in Thornton v. Carver, 80 Ga. 397 (6 S. E. 915). To hold that the tenant 'might lend one part after another of a crop subject to his landlord’s lien would make nugatory that part of the section which denounces the tenant’s disposing of the crop otherwise than by sale, and would render it impossible to secure a conviction in any case where the State could not prove an actual sale of the farm products disposed of. I-t can not be assumed that the tenant is acting in good faith because the transaction is merely a loan; for the very act of lending is the exercise of a right of dominion in defiance of the lien, and is likely to result in loss to the landlord, or to his assignee in case the lien (as in the present case) has been as
The trouble with this case is that the proof does not conform to the allegations of the indictment. The indictment alleges only a sale; the proof does not disclose a sale, but does show a different disposition of a portion of the crop. The evidence therefore does not authorize a verdict of guilty, and the court erred in not granting a new trial upon the general grounds of the motion.
The remaining questions raised by the record are sufficiently dealt with in the headnotes.
Judgment reversed.