64 Ark. 194 | Ark. | 1897
This is an indictment for the crime of removing mortgaged property, to which the defendant interposed a demurrer, and, the same being sustained by tbe court, judgment •was rendered for defendant, and tbe state appeals. Tbe demurrer is as follows, to-wit: “Tbe defendant, C. C. Crawford, demurs to tbe indictment herein, and for cause says that tbe same does not state facts sufficient to constitute a public offense, and for tbe further reason that said indictment does not sufficiently set forth tbe circumstances attending tbe commission of the offense.” From tbe argument we infer that one of tbe particular objections to tbe indictment raised by tbe demurrer is that it does not name tbe person to whom tbe cotton was sold.
In several jurisdictions among tbe American states tbe name of tbe person to whom tbe mortgaged property has • been disposed of is held to be essential in tbe indictment, notably Texas, North Carolina and Nebraska. But this is held to be proper in those states, by analogy to tbe doctrine held there as to naming tbe person to whom' tbe illicit sale of intoxicating liquor is charged to have been made. But we do not bold tbe same doctrine as to sale of intoxicating liquors in this state, but on tbe contrary have held that it is not necessary to name tbe person to whom the liquor has been sold: Hence with us there is no such necessity or reason to name tbe person to whom mortgaged property has been sold.
Besides, in tbe case of Nebraska, at least, tbe language of tbe statute on tbe subject of disposing of mortgaged property is somewhat different from ours; for, while tbe language of ours (Sand. & H. Dig., § 1868) is: “It shall be unlawful for any person to sell, barter, exchange or otherwise dispose of, or to remove beyond tbe limits of this state, or of tbe county in which a landlord’s or laborer’s lien exists, or in which a lien has been created by virtue of a mortgage or deed of trust, any property of any kind, character, or description, upon which a lien of tbe kind, enumerated above exists, ” etc., tbe language of tbe Nebraska statute (Comp. Stat. c. 12, § 9) is: “Any person who, after having conveyed any article of personal property to another by mortgage, shall, during the existence of tbe lien or title created by such mortgage, sell, transfer, or in any manner dispose of tbe said personal property, or any part thereof, so mortgaged, to any person, or body corporate, without procuring the consent, in writing, of the owner or holder of the debt secured by said mortgage to any such sale, transfer or disposal, shall be deemed guilty of a felony,” etc. In the latter, the language seems to give something more of emphasis' to the existence of the purchaser, and therefore there is some more reason to require his name to be stated in th¿ indictment than with us.
Another objection to the indictment seems to be that the manner of the disposal of the cotton is not stated with sufficient particularity. It is true that in the part charging the intent only the words “dispose of ” are used, and that is a phrase including many other terms denoting the manner of parting with the ownership and control .of-property, but in the stating part immediately preceding it is alleged that the defendant sold the cotton. It would be well to state the manner of disposal with particularity whenever it is necessary to state it at all, but we do not think this indictment should have been held bad on demurrer for a failure to do so, since it sufficiently puts defendant on notice of not only of what he was charged with having done, but also as to the manner- in which he was charged to have committed the offense.
Reversed and remanded, with directions to overrule the demurrer, and to proceed with the cause.
