104 Neb. 380 | Neb. | 1920
The defendant was charged with violation of section 534, Rev. St. 1913, which section reads as follows: “Any person who, after having conveyed any article of personal property to another hy mortgage, shall, during the existence of the lien or title created by such mortgage, sell, transfer, or in any manner dispose of the said personal property, or any part thereof so mortgaged, to any person or body corporate, without first procuring the consent, in writing, of the owner and holder of the debt secured by said mortgage, to any such sale, transfer, or disposal, shall be deemed guilty of a felony.
Defendant pleaded not guilty, and at the close of the evidence on behalf of the state, upon motion of counsel for defendant, the trial court instructed the jury to render a verdict finding defendant not guilty. The state brings this petition in error to have decided the question of law involved in the trial court’s ruling.
It appears that defendant gave a mortgage to the Central City National Bank on a certain manure spreader, and that defendant sold the spreader at a public sale. The clerk of the sale was president of the mortgagee bank, and as clerk received the procéeds of the sale of the spreader. The record is not clear on whether the clerk gave express oral consent to this sale, but there . was either oral consent in so many words or acquiescence by remaining silent. Defendant bought a team of horses at the sale, and the clerk turned the proceeds of the spreader over to the party selling the horses, knowing at the time that the mortgaged spreader had been sold. The bank has since been unable to collect the full amount of the mortgage debt, and defendant has boasted that he “got the tin.”
The doing of the inhibited act constitutes the crime. The statute was enacted to prevent the fraudulent transfer of mortgaged chattel property.
An examination of the history of this statute to its present form clearly indicates the purpose of the legislature to be the protection of the mortgagee in his security, and to permit him to have the full value -of the chattel property applied to the mortgage debt. Prior to the present enactment the offense consisted in the selling of the mortgaged property without the consent of the mortgagee; the. present 'statute being that the consent to the sale by the mortgagee must be in writing. It is clearly within the province of the legislature
Under section 534, Rev. St. 1913, an indictment in the words of the statute is sufficient. The statute in question contains all the elements of the crime for which it is sought to provide punishment. The offense is purely statutory. The criminal act charged is made to consist in doing the things which the statute inhibits and makes their commission a crime. Hence, the law does not provide for criminal intent as being an essentially concomitant ingredient of the crime.
We recognize the necessity of enforcing the property rights of a mortgagee. He should receive ample protection against fraud, annoyance and unnecessary expense. The question of guilt should turn upon whether or not the mortgagee has in fact been injured by the mortgagor. < •
< Exceptions to ruling on motion are
Sustained.