119 Iowa 505 | Iowa | 1903
Plaintiff seeks to recover damages for "three different prosecutions instituted by defendant ■against plaintiff in justice’s court for selling mortgaged ■chattels without the written consent of the mortgagee in violation of the provisions of Code, section 4852. With reference to the evidence it is sufficient to say that defendant as agent for another held chattel mortgages on domestic animals of plaintiff to secure the repayment of borrowed money; that in two or three different instances
The most important question presented by counsel for appellant is as to the construction of Code, section. 4852,. which reads as follows:
We are not willing to adopt the construction of the statute contended for. It is true that statutes may be so framed-as to make the doing of a prohibited act punishable as a crime, without regard to the intent or circumstances. At least, such a proposition is frequently stated; and we are-content for the present to accept it, although we must confess a doubt as to whether, if there was evidence tending to show that the person doing the prohibited act was insane or acting under compulsion, it would still not be for the jury to say, in prosecutions under such statutes, whether the defendant actually entertained what in law is denominated a criminal intent. But such statutes, so far as they have come before the courts for interpretation, have uniformly been in the nature of police regulations, having for their purpose the prevention of acts such as the selling of intoxicating liquors, the running of gambling houses, and the like, which the legislature has seen fit to stigmatize as inimical to the public welfare, and has therefore endeavored to prevent by proper legislation. In these statutes the legislature has had in contemplation, not the prevention of acts injurious to the person or property of individuals, and therefore in general contrary to public policy, but acts regarded as contrary to the public welfare, without particular reference to their injurious consequences to the safety-of property and the person. The statute before- us, however, relates primarily to the protection of the rights of mortgagees in regard to mortgaged property. It declares the prohibited acts to be larceny, and provides for their punishment as such; thereby bringing them- within the general category of wrongs to private property.. In the-absence of any particular language in the statute itself,, we would be inclined to hold that the same general principles-with reference to criminal intent would be applicable-under this statute as under other statutes- calculated to-
This was the view taken by this court in Walker v. Camp, 69 Iowa, 741, in construing the statutory provision thin in force with relation to the sale of mortgaged prop•erty, the court saying: “The seller of the mortgaged property is not to be convicted therefor w ithout a criminal •intent. If the consent is such, in whatever way it may be .given, that the seller honestly believes that he is authorized to sell the property, his honest act cannot be converted into a criminal one by a technical rule of evidence, •framed for the protection of civil rights.” This language was used in answer to the contention in that case that a -consent given before the mortgage was executed, and not •embodied in the mortgage, could not be shown for the purpose of negativing criminal intent on the part of the •mortgagor in making a sale which was without any consent .■given after the mortgage was executed.
Counsel insist, however, that this case is no longer pertinent, in-view of a subsequent change cf the statute,
There was evidence in this case which would warrant the jury in finding that the sales of the mortgaged property made by the plaintiff were with the approval of the
We need not further discuss the assignments of error as to the giving and refusal of instructions, so far as they relate to this matter, for the whole burden of complaint in 'this respect is founded on the contention (which we find to be unwarranted) that no oral consent of the mortgagee, and no honesty of belief on the part of the mortgagor founded upon any such consent, would relieve the mortgagor from criminal liability for selling the mortgaged property.
Other assignments of error with reference to the ad■mission or exclusion of evidence are argued, but they are not -of sufficient importance to justify discussion in this opinion.
The interrogatories asked in behalf of defendant and refused, were not such as to call for answers which would have been determinative of the case, and therefore the ruling of rthe trial court in this respect was correct.- — Aefirmeu.