State v. Torrence.State v. Torrence.
Thе indictment charges that the defendant “did unlawfully, wilfully, -and feloniously obtain from J. M. Surrat and another goods, wares, and merchandise to the amount of $22.34, asserting аt the time that he was the owner of a ehose in action against the Southern Railway Company, and agreeing in writing to apply said wages, or the рroceeds, to the amount of $22.34, to the discharge of said debt, whereаs the said Will Torrence has failed, or refused, to so apply said wagеs, but disposed of the same in some other manner than agreed in said representation, contrary to the form of the statute,” etc. The defendant moved in arrest of judgment because “the bill of indictment did not charge an indictable offense.” On the argument this was treated as an indictment for false pretense, and, if so, the motion should have been granted; for false prеtense is the “false representation of an existing fact, made with intent to deceive, and which does deceive.” But an examination shows that the indictment is under Code, sec. 1027, for “obtaining advances upon represеntation of the ownership of property and promising to apply the same to payment of the debt, and failing to do so.” The indictment follows thе statute, and there is no ground for the motion in arrest of judgment unless the statute is in сonflict with the constitutional provision (Art. I, sec. 16) prohibiting “imprisonment for debt, except in cases of fraud,” and we can not see that it is. If is not the failure to pay the debt which is made indictable, but the failure to apply cеrtain property which, in writing, has been pledged for its payment, and advances made on the faith of
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such pledge. It is on the same footing as Codé, sеc. 1089, for disposing of mortgaged property. It is tbe fraud in disposing of or withholding рroperty which the owner has in writing agreed shall be applied in paymеnt of advances made on the faith of such
quasi
mortgage, to one who has thus
pro tanto
become the owner thereof, and the subsequent conversion of said property, and diversion оf the proceeds to the detriment of the equitable owner and in fraud оf his rights. The evident object of the statute was to enable persons to оbtain advances upon articles whose nature, or whose value, would not justify the execution of a formal mortgage thereon. The only cаse so far decided upon this section
(State v.
Whidbee,
No error.