Briggs v. State

• Decision Date: 23 February 1898
• Parties: BRIGGS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 491

44 S.W. 491

BRIGGS v. STATE.

Court of Criminal Appeals of Texas.

February 23, 1898.

Appeal from district court, Johnson county; J. M. Hall, Judge.

W. J. Briggs was convicted of the fraudulent disposition of mortgaged personal property, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of the fraudulent disposition of personal property under a written mortgage, and his punishment assessed at confinement in the penitentiary for two years; hence this appeal.

There are but two bills of exception in the record. Appellant excepted to the refusal of the court to allow him to prove by one Kendall and others the sickness and destitution of the defendant and family, and the advice of the family physician to leave the place where he lived, or else the family would die; and that he sold or traded said cow for the purpose of getting to Ellis county, to pick cotton to pay the debt he owed the mortgagee. This matter afforded no defense to the charge of fraudulently disposing of the mortgaged cow. The law gives no authority to a person to sell mortgaged property under such necessities. The legislature made it an offense to fraudulently dispose of personal property under a written mortgage, and it seems it is no excuse that the party, when he sold the property, was sick or destitute. This may be a hard phase of the law, but our sole duty is to administer it as we find it.

Appellant also excepted to the action of the court in refusing to give the special instructions requested by him, as follows: "If you believe from the evidence that defendant sold the cow mortgaged, and that he informed the purchaser that said animal was mortgaged, then, in law, Mr. McClung, the holder of said lien, would still have his lien, and the property would still be subject to the payment of the prosecutor's debt, and the disposition could not be fraud in fact." As a matter of law, it is not a defense to this character of prosecution that the appellant may have informed the party to whom he sold the property that it was under a mortgage. See Thornton v. State, 34 Tex. Cr. 469, 31 S. W. 372. Of course, this character of testimony is admissible, and it was so admitted by the court as going to relieve the defendant of the charge of fraudulent intent in the disposition of the property. Although the purchaser may have been informed by appellant that a mortgage existed against the property, yet the sale may still have been made with intent to...