Monasco v. State, 62 So. 427

Monasco v. State

62 So. 427 | Miss. | 1913

Cook, J.,

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 *559party of the first part expect said B. Watts & Co. to advance him money, and sell supplies and merchandise during the year 1910, at such prices as may he agreed upon at the time of delivery or at the usual and customary credit prices in the town of Seminary, Miss.; and whereas, said party of the first part has agreed to secure the payment of said indebtedness, as also any further amounts that may be advanced as aforesaid, and not mentioned herein: The party of the first part, in consideration of the premises, as well as for ten dollars to be paid by J. M. Moore, trustee, does hereby bargain, sell, assign, set over, and convey to said trustee the following described property, situated in Covington county, Miss., viz.: My entire interest in any and all crops of cotton, corn and all other agricultural products planted and now being raised by me and any hands I may employ during the year 1910, on land belonging to me, now leased and occupied by me, or any other land I may rent and cultivate during said year, and any and all cotton and corn that may be due said party of the first part as rent for said year, and my unexpired lease of the land aforesaid, and the northwest quarter of the southwest quarter of section twenty-five, township seven north, of range 15 west, and any increase of property, real or personal, that may be hereafter acquired by purchase or otherwise, the title to which unto said trustee, or any successor, I warrant and agree forever to defend. In trust, however,” etc.

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-*560nasco, is indebted to E. Watts & Co. in the amount of two hundred and seventy-five dollars, evidenced by a promissory note, and that E. Watts & Co. is expected to make further advances, and that in consideration of the premises “the party of the first part” executes the deed of trust. It is true that the word “him,” instead of “hex*,” is used in describing the party to whom the further advances are to be made; but this does not change-the essential fact that the property conveyed in trust was conveyed .by Mrs. Monaseo, and not by appellant. It follows, therefore, that the cotton in question was not. covered by this deed of trust.

' 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..