62 Vt. 195 | Vt. | 1890
The opinion of the court was delivered by
This case was heard upon a general demurrer to the indictment, which contains three counts.
We think ' each count in the indictment is defective in substance.
The first count does not in terms aver the making of a chattel mortgage. It avers that the respondent, “ wilfully intending to cheat and defraud his creditors by giving a mortgage, etc.” There is no averment that he did give a mortgage except as we infer it. As the perjury assigned was committed in the execution of a chattel mortgage, it is essential that the execution of the chattel mortgage be precisely and definitely alleged.
The second count, like the first, declares the purpose of the respondent to defraud his creditors by executing a chattel mortgage to Willie H. Collins. In this count it is averred that the "respondent fraudulently caused a mortgage of certain personal ;■property to be made, etc. Ho could not defraud his creditors by mortgaging certain personal property, unless it be such property as his creditors could reach. Nothing is disclosed in this count inconsistent with the inference that this certain personal property was exempt from attachment, and we are not to infer a criminal conveyance of property unless the indictment, on its face, discloses its criminal character.
In the third count the allegation of a purpose to defraud creditors is omitted. No wrong motive in executing the mortgage is charged. It avers that the respondent made and executed a mortgage of personal property to Willie H. Collins, and then proceeds to aver that he swore falsely respecting the debt, and concludes with the averment that said mortgage was not made
The statute under which this indictment was drawn provides that perjury may be predicated in cases where an oath is required 'by law. A mortgage of personal property is good at common law between the parties without any óf the formalities prescribed for a statutory chattel mortgage. Merely charging that the respondent executed a mortgage of personal property does not ■charge that such mortgage was a statutory one, requiring the •formalities provided for by the statute. One of such formalities is the execution of an affidavit, to be sworn to by both mortgagee ■and mortgagor. The count avers “ that in the execution of said mortgage the hereinafter mentioned affidavit became and was necessary, pertinent and material.”
It then proceeds to charge that the respondent made oath to a ■certain affidavit, reciting certain facts which the count declares •to be false. There is no allegation that the mortgagee executed this affidavit. Hence the count does not disclose the execution of a statutory chattel mortgage, and therefore does not show that the false oath taken by the respondent was one required by law.
The indictment is bad, therefore, in each count. The indictment is open to other objections, but those pointed out are sufficient for the purposes of this demurrer.
'We have not considered the question discussed in argument as to the formalities required under our chattel mortgage act to constitute the taking of the oath required by the statute. The ■decision of that question is fraught with grave consequences, especially if it be hold that the customary ceremony used in ■courts must be substantially observed. That great laxity and great carelessness exist in practice we can easily believe, but how far such laxity would be held fatal, we leave for consideration hereafter.
Judgment reversed, and judgment that the demurrer he sustained and the indictment held insufficient.
