71 So. 971 | Ala. Ct. App. | 1916
Appellant was convicted of having sold without the consent of mortgagee certain cotton seed upon which there was an unsatisfied mortgage lien, in violation of section 7432, Code 1907. Appellant admitted the sale of the cotton seed, but testified that he had requested permission of the mortgagee to be allowed to sell the, seed in order to raise money to give the hands on his (appellant’s) place some Christmas money, and that mortgagee had said that he „ might sell and turn over the proceeds to the women .hands on the place. All of this was denied by the mortgagee.
It does not appear from the record that witness Sallie Hicks was present at the sale to Pace, or knew anything about the money being the proceeds of the seed cotton, and while the question for determination is the consent vel non of the mortgagee, yet, in view of appellant’s version of the matter, the ulterior fact of his having paid money over to Sallie Hicks was a circumstance which, taken in connection with the other testimony, might properly be considered by the jury as having some tendency to bear out appellant’s version of the matter. Whatever of weight or probative force it might have was a matter addressed to the jury. While this is true, the form of the question was objectionable, in that it both calls for a conclusion of the witness and is leading and the court will not be put in error for sustaining the objection.
Charges 1 and 3 were properly refused because-they were involved, confusing, and argumentative, and a similar charge was recently so held.—Bunk James, alias Buster James v. State, in Ms. Charge 2 was a correct statement of the law. Its refusal was error, and must work a reversal.—Howard v. State, 151 Ala. 22, 44 South. 95; Gregory v. State, 140 Ala. 16, 37 South. 259.
The judgment of the court below is accordingly reversed, and the cause remanded.
Reversed and remanded.