State v. . Holmes

26 S.E. 692 | N.C. | 1897

It was in evidence that the defendant, who was the renter, had sold part of the crop which was embraced in a mortgage given by him and that a balance was still due thereon. The defendant offered no evidence. If there had been evidence that defendant had sold the corn to pay the prior lien for rent, S. v. Ellington, 98 N.C. 749, or that sufficient of the crop had been retained to pay off the mortgage, S. v. Manning, 107 N.C. 910, or tending to show that the sale had been made under circumstances making it justifiable, as, for instance, the sale of perishable property merely to prevent loss, then the intent would have been a matter to have been left with the jury. But such matters of defence were peculiarly within the knowledge of the defendant and should have been put in evidence by him. It would be impossible for the State to anticipate and offer evidence to disprove these and all other possible circumstances which might negative the intent. Upon the facts here found, that the defendant executed the mortgage upon his crop and sold a part thereof, leaving the mortgage still unsatisfied, no other facts being before the jury, the intent to hinder, delay and defeat the mortgage, was the "natural and necessary" consequence of such a state of facts. S. v. Manning, supra. The defendant is presumed to have intended the necessary consequences of his own act. The jury could not act upon the surmise that there might be other crops, or that the corn had been sold to pay prior liens or taxes, or other justifiable purposes. His Honor, (576) therefore, properly instructed the jury, if they believed the evidence, to find the defendant guilty. S. v. Riley,113 N.C. 648.

In like manner, upon an indictment for selling liquor without license, if the sale is shown, the burden devolves upon the defendant to show that he had a license to sell. S. v. Morrison, 14 N.C. 229; S. v. Wilbourne,87 N.C. 529; S. v. Emery, 98 N.C. 668; S. v. Smith, 117 N.C. 809. On an indictment for entry on land without license, under The Code, sec. 1120, the burden of showing the license devolves upon the defendant, S. v. Glenn,118 N.C. 1194. So, also, on an indictment for murder, on the trial of which the intent is most essential, if the killing with a deadly weapon is proved or admitted the law presumes malice, and the burden of proving matter in excuse or mitigation devolves upon the prisoner.

Besides, the statute (The Code, sec. 1089) makes the failure to produce the mortgaged property, when demanded by the mortgagee, prima facie evidence of the disposition of it "with the intent to hinder, delay or defeat" the mortgagee, a fortiori proof of the actual sale of such property raises a presumption of such intent. Formerly it was necessary to allege in the indictment the name of the person to whom the mortgaged property was sold (S. v. Pickens, 79 N.C. 652; S. v. Burns, 80 N.C. 376), but this is expressly made unnecessary under the amended statute, as it is in The Code.

No error.

Cited: S. v. Blackley, 138 N.C. 623; S. v. Connor, 142 N.C. 708.

(577)