43 Ark. 378 | Ark. | 1884
On the 21st day of February, 1884, the grand jury indicted Harberson for the offense of selling ■property subject to a mortgage. A demurrer was made to the indictment ©n the grounds that it was vague, indefinite, uncertain and insufficient, and because the facts did not constitute a public offense. It was sustained, and the State appeals.
The indictment charges that “ the said Harberson on the 1st day of October A. D. 1883 in the County and State aforesaid, unlawfully and feloniously did sell one horse, without the consent of Cunningham & Cubage, a firm composed of J. B. Cunningham and J. D. Cubage in whose favor a lien then and there existed on the said horse, by virtue of a mortgage, executed and delivered on the 14th day of March, 1883, by said Harberson to J. T. Swindle, which mortgage was on the 5th day of April, 1883, filed with the clerk of said county to be there kept as a public record, endorsed as follows, to-wit; “ This instrument is to be filed but not recorded, J. T. Swindle”, which mortgage was on the 8th day of September, 1883, assigned and transferred by said Swindle to said Cunningham & Cub-age, and the said horse was sold without the consent of said J. T. Swindle.”
The act of February, 3d, 1875, makes it a felony in any one to “ sell, barter or exchange, or otherwise dispose of ” any property “ upon which a lien shall exist, by virtue of a mortgage, deed of trust, or by contract of parties, or by operation of law.”
It has been held from the force of other words in the Statute, that this penal provision applies only to such liens as are recorded.
A filing with an indorsement that it is only to be filed but not recorded is for the purposes of this act equivalent to recording. But no mortgage can be either recorded or filed, unless it be duly acknowledged.
The court moreover is not thorougly satisfied with the allegation as to the sale. It does not state the vendee, or that it was to a person unknown. This court has held that not to be necessary in the ease of a sale of liquor, and it might not be considered a fatal defect to have omitted it in this case if that were all. Nevertheless this is a felony and not a misdemeanor, and it would be better to'be more definite, and to advise the defendant more certainly of the specific transaction upon which the charge is founded. The court however rests its decision on the grounds first above stated.
Affirm.