43 S.C. 200 | S.C. | 1895
The opinion of the court was delivered by
Under an indictment for selling and disposing of certain personal property, covered by an alleged lien, in violation of section 277 of the Criminal Statutes of South Carolina (2 Bev. Stat. 1893, p. 356), the defendant was convicted; and from the judgment rendered he appealed to this court upon theseveral grounds which will be hereinafter noticed.
The paper claimed to constitute the lien above referred to is in the following form: “The State of South Carolina, County of Barnwell. Know all men by these presents, that I, H. W. Bice, of the said county, in 'consideration of the sum of two hundred and fifty dollars to me advanced in cash by H. J. Moody, of Barnwell County, said State, have bargained and sold unto the said H. J. Moody the following personal property: one grey mare named Maud, one large grey horse named Paul, * * * now in my possession, and which I promise to deliver on demand to H. J. Moody.” When this paper was offered in evidence by the prosecution, claimiug it to be a mortgage, the defendant objected, on the ground that the paper was not a mortgage or other lien, contemplated by the statute under which defendant was indicted, but was an absolute bill of sale. The Circuit Judge overruled the objection, holding the paper to be a mortgage; to which ruling the defendant duly excepted.
The defendant’s grounds of appeal are as follows: 1st. Because of error in admitting the paper, claimed to be a mortgage, in evidence, and in holding the same to be a mortgage. 2d. Because of error in refusing to charge defendant’s first request, which was as follows: “The jury are instructed that if the property mentioned in the indictment was sold or disposed of in the State of Georgia, then the defendant must be acquitted, as the crime contemplated by our statute was not committed in this State.” 3d. Because of error in refusing to charge defendant’s second request, which was as follows: “The jury are
In reference to this last ground of appeal, the Circuit Judge, in settling the “Case,” makes these remarks: “I notice nothing wrong except the last sentence of the fourth and last ground of appeal. The objectionable words are these: ‘Such act not necessarily being a sale or disposition as mentioned in the statute.’ This would convey just the opposite of what I did say. I charged the jury that if he (Eice) put the said property out of the reach of Moody, by carrying the same out of the State, or otherwise, the offence would be complete — that would be a disposition such as was mentioned in the statute.”
The judgment of this court is, that the judgment of the Circuit be reversed, and the case remanded to that court for a new trial.