115 Ala. 14 | Ala. | 1896
The general charge requested by the defendant should have been given for the reason that no evidence of the venue was adduced.
This instruction was probably requested on the theory that there was no evidence in the case tending to show, or authorizing the inference, that the defendant removed the property for the purpose of hindering, delaying or defrauding any person having á claim thereto. It cannot be supported on that theory, when it is considered that the fact of removal with knowledge of the claim itself raises an inclusive presumption of such intent, and whether the other evidence in the case overturned this presumption was a question for the jury. We deem it not out of place, however, to say that the evidence shown in this record in rebuttal of the idea of bad intent on the part of the plaintiff, while not sufficient to take that inquiry from the jury, was yet of a character to strongly challenge the court’s discretion in favor of the defendant on a motion for a new trial.
The indictment is drawn under section 3835, not under section 3836.- The question whether the party having the claim on the property removed consented to the removal operates only collaterally in the case upon the direct inquiry whether the defendant had the purpose to hinder, delay or defraud. Under section 3836, the consent of a party having a written mortgage, lien or deed of trust to a sale or conveyance of the property is an absolute defense. It would seem that the instructions given by the court to which exceptions were reserved could have apt reference only to a case under the latter section, which this is not.
There was no merit in defendant’s objection to the introduction of the mortgage in evidence. A mortgagee is a person having a claim to the property embraced in the mortgage under a written instrument, within the language of section 3835.
The court correctly charged the jury in effect that mere ratification by the person having the claim on the property removed or sold of the act of selling or removing could not purge the act of criminality.
Reversed and remanded,
