34 S.W. 631 | Tex. Crim. App. | 1896
Appellant was convicted for selling personal property, then being under a written mortgage, with intent to defraud the person holding such mortgage, and his punishment assessed at confinement in the penitentiary for two years, and he prosecutes this appeal. On the trial of the case, the State offered in evidence a mortgage in writing. Appellant objected to the introduction of the same: (1) Because the property was not sufficiently described so that the same can be identified, and said mortgage is void, because said property was not sufficiently described. (2) Because there is a variance between the mortgage described in the indictment and the one offered in evidence, and the one to which this objection is made, in this: The indictment describes a mortgage covering a less number of articles than the mortgage does. The mortgage describes other goods or property than those mentioned in said indictment. (3) Because the property described in the mortgage is not the same property described in the indictment. The court overruled said objections, and appellant reserved his bill of exceptions. With reference to the first objection, we think the property is sufficiently described in the indictment. The indictment in this case does not propose to set out the mortgage, either in hæc verba or according to its substance. It alleges merely that certain personal and movable property, describing it, was then and there under a valid contract, lien and mortgage in writing, executed by appellant, on the 11th day of March, 1895, to a firm composed of W.B. Smith and H.C. Smith; that appellant sold and disposed of said property, the said mortgage being then and there a valid, subsisting, and unsatisfied contract, lien, and mortgage upon said property, and was then and there owned and held by said Smith Bros. as aforesaid. In this character of case, we do not understand that it is necessary to set out, according to its tenor, the mortgage in question. See Satchell v. State, 1 Tex.Crim. App., 438; Glass v. State, 23 Tex.Crim. App., 425. The indictment in this case, according to these decisions, was sufficient. The variance claimed by the appellant is because the mortgage which was produced in evidence covered more property than was stated to have been disposed of in the indictment. On an inspection of the indictment and the mortgage offered in evidence, it does appear that, besides the articles alleged to have been fraudulently disposed of by appellant, the mortgage also contained a number of other articles of personal property, mortgaged at the same time. As it is not necessary to set out the mortgage by an exhibit copy, we hold that if the mortgage, when produced, covers the articles set out in the indictment, although it may contain other items, there is no variance; the allegation of the indictment being that the property therein set out and described was under a valid and subsisting written mortgage, and that the same was disposed of with intent to defraud. It is true that, on the trial of the case, appellant might contend that the additional property was sufficient to pay off and satisfy the mortgage, and that, consequently, there could be no fraud, or intent to defraud, in the sale or disposition of the property alleged in the indictment to have been transferred, *570 and he might offer proof to show such facts in defense; but, in response thereto, the State would be permitted to show that the other property (being live stock) had died or been destroyed without the fault of the mortgagor, or had previously been sold by him, thus destroying or impairing the security held by the mortgagee, and show by this means that the disposition of the property charged to have been sold in the indictment was with intent to defraud. Because such proof could be offered on the part of appellant and on the part of the State, it does not follow that it was necessary to have alleged the same. Of course, where such extraneous evidence is offered, the court will take care, in its charge, to guard the rights of the defendant, should there appear any danger of his conviction for selling and disposing of other property than that alleged in the indictment. In such case, the court will properly limit the purpose of such testimony. In regard to the third ground of objection urged by appellant in this bill of exception, he does not show wherein the property described in the mortgage is not the same property described in the indictment. If any item in the indictment is not set out and described in the mortgage, the bill should have directed our attention to that particular item. See, Willson's Crim. Stat., § 2516, and authorities there cited; McGrath v. State, ante p. 413; Angley v. State, ante p. 427.
Appellant excepted to the following charge of the court, given on the trial of this case, to-wit: "If you fail to find that the defendant signed the written instrument referred to in the first subdivision of this charge; or if you find the defendant signed the same, but thought he was signing a note, and not a mortgage, and did not know that he had signed such mortgage at the time he sold and disposed of the property in controversy, if you find that he sold and disposed of it; or if defendant did not know that the goods in controversy were a part of those described in said mortgage; or if you fail to find the defendant guilty — then, in either event, you will acquit him. Appellant excepted to such charge for the following reasons: (1) Because said charge did not present the law applicable to the defense relied upon by the defendant; (2) because the latter part of said charge was liable to lead the jury into the belief that they could not consider the first part of said subdivision, unless they found the defendant not guilty; and, generally, because it abridged the defendant's defense, and rendered the same obscure to the jury. We do not agree with the contention of appellant. The court was simply submitting the issues as presented by the evidence, in which the appellant claimed that he had not given any mortgage, but that he was simply signing a note, and not a mortgage. This did not injure the appellant, and only submitted those questions clearly, and perhaps a little favorably to the appellant. The contention of appellant that the charge, as given, was liable to confuse the jury, in that the latter portion thereof, in which he told them, if you fail to find the defendant guilty, you will acquit, is not well taken. It will be noticed, by an inspection of such charge, that it presents each phase of his defense, and instructed the *571 jury, if they found either one of said matters set forth in said charge to be true, to render a verdict of not guilty. On the trial of the case, the State was permitted to prove, over the objection of the appellant, that the term "Uph" in the mortgage meant "upholstered," and "one suite and springs" meant bedstead, bureau, washstand, and bed springs. Appellant objected, because said testimony varied the terms of the written instrument, and was inadmissible to explain what the meaning of the written instrument was. These expressions were abbreviations, doubtless well known in the furniture trade; and in our opinion it was admissible, between the parties to said written instrument, to explain what said abbreviations meant. If such terms did not have such meaning in the trade, and if the parties to said contract did not so understand them, it was admissible for the appellant to offer evidence controverting the State's proof on the subject. Appellant, as one of the grounds of his motion for a new trial, says that the punishment assessed by the jury is not certain, in that the jury used the word "jears" for the word "years." In support of said motion, the original verdict has been sent up with the record for our inspection. The word in the verdict in connection with punishment looks more to us like "fears" than "jears," as claimed; but it is clearly susceptible of being read "years," and, in our opinion, it is sufficiently certain. The intention of the jury in this matter is too plain for discussion. The charge of the court sufficiently presented the issues arising in the case. The jury found the defendant guilty, and we see no reason to disturb the verdict. The judgment and sentence of the lower court are accordingly affirmed.
Affirmed.
