43 Neb. 745 | Neb. | 1895
Plaintiff in error was convicted in the district court of Burt county of removing mortgaged property out of the county, with intent to deprive the owners of the mortgage ■of their security. At the commencement of the trial the defendant objected to the introduction of any evidence, on the ground that the information does not charge a crime, which objection was overruled, and an exception was taken by counsel for the prisoner. This ruling is assigned as ■error.
The information, after the usual formal averments, sets forth the charge against the prisoner in the following terms: “That George H. Wilson, late of the county aforesaid, did, on the 15th day of November, A. D. 1894, in the county of Burt and state of Nebraska, aforesaid, duly mortgage and thereby convey to Monroe and Stauffer, said Monroe & Stauffer being a partnership composed of Henry W. Monroe and Samuel W. Stauffer, and no others, the following personal property, to-wit: One bay mare named Nell, age seven years, weight about 1,000 pounds, diamond brand on shoulder; one bay mare named Minnie, aged six years, weight' about 750 pounds, branded W on right shoulder; and that afterwards, to-wit, on the 26th •day of November, 1893, during the existence of the lien ■and title created by said mortgage, and without the knowledge or consent of said Monroe & Stauffer, or said Henry W. Monroe or said Samuel W. Stauffer, or either of them, •or any of them, unlawfully, willfully, and feloniously did remove, permit, and cause to be removed said mortgaged
It is first urged by counsel for plaintiff in error that the information is insufficient, in that it fails to allege the mortgage was in writing. It is unnecessary to decide whether the provisions of the statute under which the information is founded extend only to written chattel mortgages, but assuming, for the purposes of this case, that the section does not extend to or comprehend mortgages which are merely verbal, we are nevertheless of the opinion the averment in the information that the plaintiff did “duly mortgage and thereby convey,” etc., is sufficient, and would authorize the introduction in evidence of a written mortgage. This allegation must be construed to mean that the defendant executed such a mortgage as is contemplated by the statute. It was not necessary to set out in the information the mortgage in hcee verba. The statute does not require such particularity in charging the offense. Unreasonable strictness should not be required in criminal
It is next insisted that the information is fatally defective and insufficient in not alleging that the mortgage was given to secure a valid indebtedness. This is hypercritical and untenable. The section we have been considering defines the offense which it creates. It contains all the elements which the law-makers saw fit to require' should exist to constitute the crime. A mortgage must have been made conveying personal property to another, and the mortgagor-must have removed, permitted or caused to be removed some portion of the property out of the county where it was situated when such mortgage was given thereon, during the existence of the lien or title created by the mortgage, with the intent to deprive the owner of his security. The crime is complete when all these things occur. Mr. Bishop, in his work on Criminal Procedure (vol. 1, sec. 611), says: “To the extent to which the statute defines the-offense, leaving the rest, if anything, to the common law, it is ordinarily adequate, while nothing less will in any instance-suffice, to charge the defendant with all the acts within the statutory definition, * * * substantially in the words-of the statute, without further expansion.” The doctrine laid down by this eminent author is sound law as well as good sense. The failure to allege the indebtedness which? the mortgage was given to secure does not invalidate the information.
It is contended the information fails to state a crime for-the reason that it does not allege that Monroe & Staufferwere the owners of the mortgage debt. It is averred that they were the owners of the mortgage at th.e time the property was removed, which complies with the terms of the statute.
Further objection is made to the information because it does not charge or show that the property removed had any
It is urged that the evidence fails to sustain a conviction, for the reason that there was no proof that the removal of the property impaired the security of the mortgagees. It was shown upon the trial that a portion of the mortgage debt had been paid prior to the commission of the acta charged in the information, and that the wagon, the remaining property described in the mortgage, had been increased in value by painting and other repairs. The contention of plaintiff in error is that no criminal liability exists under the statute in removing mortgaged property, where the mortgagor leaves at the disposal of the mortgagee sufficient property covered by the mortgage to fully liquidate the indebtedness. This position is unsound. The-gist of the offense is the fraudulent removal with the intent to deprive the owner of the mortgage of his security. The fact that mortgagor was solvent, or had other property than that described in the mortgage from which the mortgagees could have collected their debt, or that the wagon was ample security for the claim, can make no difference. The mortgagees were entitled to have satisfaction out of the specific property on which their mortgage was a lien. By the fraudulent removal of a portion of the property
Objection is made to the ruling of the trial court in permitting the officer who made the arrest to testify what the prisoner said to him at the time. This evidénce was stricken out by the court as soon as given. We cannot reverse the judgment because of the admission of this testimony, since the point was not passed upon by the trial court. A motion for. a new trial was duly filed, but no ruling was ever had thereon in the lower court, hence, the decisions made during the progress of the trial cannot be considered by this court. (Dillon v. State, 39 Neb., 92.) There being no reversible error in the record, the judgment, is
Affirmed.