The defendant was indicted in Har-nett county, under section 1089 of The Oode, for disposing of mortgaged property ; and at August Term, 1893, of the Superior court of Harnett, the case was removed to the county of Johnston for trial. When the case was called the defendant moved to quash, upon the following grounds: (1) That the counts in the bill of indictment were repugnant ; (2) that the description of the land in the mortgage and bill was insufficient: (3) that the transcript of the order of removal was insufficient. Upon the motion being denied by the court, the defendant excepted. There were two counts in the bill, in one of which it was charged that the defendant disposed of the property with intent to hinder, delay, and defeat the rights of “J. A. Green, business manager of the Farmers’ Alliance Exchange of Harnett couhty,” and in the other count, to hinder, delay, and defeat the said “J. A. Green, business manager and agent of the Farmers’ Alliance Exchange of Harnett county.” The defendant contends that the further descriptive word, “agent,” in the second count, creates a repugnance and contradiction between the two. There is nothing in this position. The two counts relate to one transaction, varied simply to meet the probable proof, and the Court will neither quash nor force an election. State v. Parish, 104 N. C., 679. Resides, there is no difference between the terms “agent,” and “manager,” and the latter word may be treated as surplusage in this connection.
The lands upon which the mortgaged crops were grown were described in the mortgage and bill as “18 acres on my [defendant’s] own land, in Averasboro township, Har-nett county, North Carolina.” The land was sufficiently
The transcript from Harnett was not sufficient in form or substance, and his Honor should have continued the cause, upon the motion to quash, and have had a writ of certiorari issued to the clerk of that county for a full and true transcript of the record in the case. If the imperfection of the transcript had not been discovered until a motion in arrest of judgment, he should have suspended the judgment until a full transcript should be sent from Harnett. This Court has, by certiorari, procured a full and perfect transcript from Harnett county, and it is sufficient in all respects. This proceeding on our part finds precedent in the case of State v. Craton, 6 Ired., 164; State v. Randall, 87 N. C., 571.
In the course of the trial the defendant objected to the introduction of the mortgage, because of insufficient description of the land conveyed therein upon which the crops were grown. This objection has been disposed of already, in discussing the motion to quash.
J. A. Green, a witness, testified that he was the business manager of the alliance and that there was a minute of his election on the books of the_ alliance. The defendant insisted that this was a matter of record, and should be proved by the record itself. His Honor overruled the objection, and his ruling was correct. It was a collateral matter, purely, and could be proved by parol. State v. Wilkerson, 98 N. C., 696; State v. Credle, 91 N. C., 647 (641.)
In the argument of the case, the solicitor, in addressing the jury concerning the defendant, who had been examined as a witness in his own behalf, made use of the following language : “You are asked to repudiate the evidence of Mr. Green, a man of good character, and to accept in full
In Ms charge his Honor told the jury that the mortgage rested on a good consideration, whether it was given, as testified by defendant, for a balanee due on a former-debt, or whether, as testified by the witness G-reen, for supplies furnished after the date of the mortgage. The defendant excepts, but on what ground it is not. clear. His Honor was correct in the ruling. Woodlief v. Harris, supra; Harris v. Jones, 83 N. C., 317.
The court farther charged the jury: “The State must •satisfy you beyond a reasonable doubt that the defendant disposed of the mortgaged cotton raised on his own land— which is the only crop in question — with intent to defeat the rights of the mortgagee. If you believe the defendant disposed of the cotton to persons other than the mortgagee, and at the time of the disposition the debt secured by the mortgage was unpaid, then the burden is on the defendant to satisfy you that he made such disposition without the intent to defeat the rights of the mortgagee. This he may do by showing that he honestly believed he had a set-off against the alliance for cotton delivered in 1890, and corn sold on their order, sufficient of itself, or together with the bale delivered in 1891, to extinguish the mortgage debt. But you must remember that, before the defendant can be called upon to make an explanation as to his intent in the disposition, the fact of the disposition must be proved by the State beyond a reasonable doubt, and also the fact that the mortgage debt had not at the time of the disposition been paid by the corn claimed to have been' sold by the defendant on account of the alliance, or by the bale of the ’91 crop claimed to have been delivered, or in any other way. Of course, if he brought all the cotton he made on his own land to the alliance, he is not guilty, and the State
There was a verdict of guilty, after which the defendant’s counsel moved for a new trial for errors in the charge, as pointed out, failure to correct the solicitor in his address to the jury, and that the mortgage had been improperly recorded and probated (there were no exceptions to the registration or probate of the mortgage). The motion was denied, and the defendant appealed. There was no error in his Honor’s refusal to grant a new trial. The defendant then moved in arrest of judgment, upon the grounds set forth in the motion to quash, which motion his Honor denied, and' pronounced judgment, and the defendant appealed. There was no error in any of the rulings of the court, and the judgment is affirmed.
Affirmed.