Dempsey v. State

• Decision Date: 08 October 1894
• Citation: 22 S.E. 57,94 Ga. 766
• Parties: DEMPSEY v. STATE.
• Court: Georgia Supreme Court

22 S.E. 57

94 Ga. 766

DEMPSEY v. STATE.

Supreme Court of Georgia

October 8, 1894

Syllabus by the Court.

1. No disposition of personal property held under a conditional purchase is a punishable offense under the act of September 28, 1883, except by selling or incumbering the property, the title of the act not being sufficiently comprehensive to embrace any other mode of disposition.

2. As the constitution requires the trial of all criminal cases to be in the county where the crime was committed, the provision in the act above referred to which subjects the offender to be tried in the county of his residence is unconstitutional as applied to cases in which it affirmatively appears that the offense was committed in some other county. But in other cases, as the fact of residence in a particular county would warrant the inference, nothing to the contrary appearing that any act done by the accused was done in that county there is no necessary conflict with the constitution.

3. Where the vendor expressly gives the conditional vendee permission to sell the property on condition that the proceeds shall be paid to him, failure to comply with the condition will not render criminal a sale of the property under such permission.

4. An indictment charging the accused with fraudulently selling "one bay horse" is not supported by evidence that the property sold was a "Texas pony," without any evidence whatever touching the color or sex of the animal. But where, from the prisoner's statement, together with the evidence for the state, it can fairly be inferred that the Texas pony was a bay horse, there could be a conviction so far as this element of the case is concerned.

Error from superior court, Catoosa county; T. W. Milner, Judge.

W. L. Dempsey was convicted of selling incumbered personal property, and brings error. Reversed.

W. E. Mann and R. J. & J. McCamy, for plaintiff in error.

A. W. Fite, Sol. Gen., for defendant in error.

LUMPKIN J.

1. On September 28, 1883, the general assembly passed an act "to make penal the selling or encumbering personal property held under a conditional purchase, and to provide a penalty for the same." In the first section of that act it is declared that "no person holding personal property under a conditional purchase and sale, where, by the terms of said purchase, the title to said property is retained by the vendor, until paid for, shall be permitted to sell, dispose of or encumber said property with the view or intent to defraud or defeat said vendor's rights, or where such selling, disposing of or encumbering of said property tends to the injury of said vendor, unless the same be done by the consent or approval of said vendor." The next section of the act makes penal a violation of the provisions of the first section, and provides for the punishment of the same. See Acts 1882-83, pp. 111, 112. A casual inspection will be sufficient to show that the title of the act is not sufficiently broad or comprehensive to include any disposition of personal property held under a conditional purchase, except selling or incumbering the same. Consequently, so much of the body of the act as makes criminal any other disposition of personal property so held is in plain violation of that provision of the constitution which declares that no law shall pass which "contains matter different from what is expressed in the title thereof." Code, § 5067. Therefore it was error to charge: "If...