123 Ark. 28 | Ark. | 1916
Appellant was convicted under an indictment which charged him with obtaining from one J. M. Hoffman a promissory note in the sum of $300 and a certain chattel mortgage on personal property to secure the same, by virtue of a false representation concerning the value of other security given in lieu thereof. It is charged in the indictment that appellant was indebted to Hoffman in the sum of $370, evidenced by a promissory note for $350 and bearing 10 per cent, interest, and to secure the payment thereof he executed to Hoffman a chattel mortgage on his one-third interest in a cotton gin and grist mill, one horse, three cows and calves, and one John Deere binder, all of the value of $370.41, and that he induced Hoffman to surrender said note and release said chattel mortgage and accept in lieu • thereof another mortgage on a tract of land by a false and fraudulent representation that there were only two prior mortgages on the land, when in fact there were three prior mortgages given to secure a sum equal to or in excess of the value of the land.
On the trial of the case, the State adduced testimony tending to establish the allegations of the indictment. The testimony showed that Hoffman held the note of the appellant for the sum named, and the chattel mortgage to secure payment of the same, and that appellant induced him to surrender the note and chattel mortgage and to accept a new note secured by a mortgage on land, upon representations that the land was unencumbered except by a mortgage to a certain loan company and to another party when in truth and in fact a third party named Hendrix also held a mortgage on the land for a large sum.
Appellant adduced testimony tending to show that he made no false representations, but correctly represented to Hoffman that there were three prior mortgages on the land. Appellant also introduced proof tending to show that the original note, which was surrendered pursuant to the alleged false representations, was void on account of usury. The proof tended to show that the note contained a stipulation for interest at the rate of 10 per eent. per annum from date, and that in addition to that appellant gave to Hoffman a cow of the value of about $20, and agreed to release an account for repairing a well in the sum of $5.
The statute makes it an offense for one to “designedly, by color of any false token or writing, or by any other false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or other valuable thing or effects whatever.”- Kirby’s Digest, section 1689.
If it 'be conceded that this section prescribed separate and distinct offenses, rather than different modes of committing the same offense, yet it does not follow that this indictment even attempted to set out two modes of committing the alleged offense, for we think it merely constitutes a charge that the surrender and the cancellation of the securities was obtained; and if that be true, then it constituted an offense under that part of the statute which denounces the obtaining from any person any “right in action” by false pretense.
But an unrecorded mortgage is good between the parties thereto and constitutes a lien which may be enforced as against the mortgagor. Smead v. Chandler, 71 Ark. 505.
“It is no defense,” said Mr. Wharton, “that the prosecutor was not injured.” 2 Wharton on Criminal Law, section 1503.
And it is generally held that “one who obtains money by false pretenses is liable to punishment, though the person from whom it was obtained parted with it in furtherance of an illegal purpose.” Rapalje on Larceny and Kindred Offenses, section 435.
The principles above announced are not precisely the same as those involved in the present case, but they are applicable to the extent that one who obtains from another, by false pretense, the surrender and release of a written obligation which on its face constitutes a valuable right of action, can not be heard to say that it is no offense under the law because the right could be avoided by a plea of usury. We are therefore of the opinion that, the court did not commit error by refusing to submit that question to the jury.
Judgment affirmed.