Conner v. StateConner v. State
- Reporters:
- Before:
- Coleman
— Thе defendant was indicted and convicted for a violаtion of the statute as contained in section 3835 of the Criminal Code which makes it a criminal offense for any рerson to remove or sell “any personal prоperty for the purpose of hindering, delaying or defrаuding any person who has a claim thereto, under any written instrument . . . . with a knowledge of the existence thereof, — аud on conviction must be punished as if he had stolen it.” The indiсtment charges that the property in this instance consisted of two bales of cotton, of the value -of one hundred dollars.
The evidence shows that the cottоn was raised on lands rented from one Bradford, and that оne Shelton had a prior mortgage to the one held by Smith, under which the defendant was prosecuted in the present case. The evidence shows that the second mortgagee had knowledge of the existence of the first mortgage when the second mortgage was exеcuted to him. Under our statute the landlord was entitled to priority of payment for advances made by him, and Shelton’s lien as first mortgagee came next in priority.
The evidence is clear, that the two bales of cotton were sold with the knowledge, consent and direction of thе prior claimants, and that so much of the proceeds of the cotton as was necessary, was first aрplied to these prior claims. The evidence shows that a balance of twenty-one dollars, was left аfter satisfying the claim of the landlord and prior mortgagеe. There was evidence tending to show that the twenty оne dollars was offered to the second mortgagеe by the defendant, and refused by him.
If a sale of the two bаles of cotton was necessary, to pay the landlord and the first mortgage, and the sale was made by the dеfendant, with the knowledge, consent and direction of the landlord and first mortgagee, for the purpose of sаtisfying these two prior claimants, and the proceеds or so much as was necessary, were thus applied, there can be no conviction under the statute. Thаt the sale was thus made is established, by the proof, without‘conflict. The defendant was entitled to the general charge in his favor. If after paying the prior claims the dеfendant, retained the balance *85of the proceeds‘of the two bales, for.the second mortgagee, and he refused to receive it, the defendant was entitled to an acquittal, and the charge to this effеct should have been given.
To permit the convictiоn to stand, under the evidence disclosed in the record, would in effect, be to hold, that the defendant was guilty under the statute, for failure to make a crop of sufficient value, to satisfy the secured debts, and not for a fraudulent disposition of the crops after they were made.
Reversed and remanded.