62 So. 427 | Miss. | 1913
delivered the opinion of the court.
Appellant was indicted, under section 1168 of the Code of 1906, for selling two bales of cotton previously mortgaged without informing the purchaser of the incum-brance.
According to our understanding of the evidence, the cotton in question was the property of appellant, and was raised by him, or his tenant ; certain it is that it did not belong to Mrs. I. M. Monasco, so far as the record discloses. The instrument, or so much thereof as is necessary to an understanding of this opinion, which the state introduced in evidence to show that the cotton alleged to have been sold by appellant had been previously conveyed to a trustee to secure an indebtedness, reads this way:
“This deed of trust, made the 24th day of January, A. D. 1910, witnessetk: That whereas, Mrs. I. M. Mo-nasco, party of the first part, is indebted to E. Watts & Co. in the sum of ($275.00) two hundred and seventy-five dollars, evidenced by one promissory note of even date, with ten per cent, interest from date; and whereas, said
This instrument was signed by Mrs. I. M. Monaseo and by appellant, J. M. Monaseo. It will be observed that Mrs. Monaseo is named in the instrument as “party of the first part,” and that “the party of the first part”, conveys the property described to J. M. Moore, trustee. It will be noted that the name of appellant is nowhere mentioned in the body of the instrument. The instrument is unambiguous, and needs no interpretation. It is recited that the party of the first part, Mrs. I. M. Mo-
' The theory of the state is that appellant bargained and delivered the cotton to the Ship Island Lumber Co.; and that is precisely what the indictment alleges. The evidence for the state tends to show that appellant delivered the cotton to the Ship Island Lumber Co. telling the company’s representative that, if he would let him have one 'hundred and twenty-five dollars on the cotton, he could take charge of it, and he (appellant) would have a settlement with him the following week. So the company paid appellant one hundred and twenty-five dollars and took charge of the cotton. This was neither a sale, barter, exchange, or mortgage, nor did the transaction constitute the giving of a deed of trust upon the cotton. Before appellant could be convicted under section 1168 of the Code, it was necessary for the state to show that appellant either sold, bartered, exchanged, mortgaged, or gave a deed of trust on the cotton. This was not shown, and even though the deed of trust given by Mrs. Monaseo, and signed by appellant, covered the cotton, the conviction cannot stand, because the evidence does not prove the crime charged in the indictment.
Reversed and dismissed..