Fountain v. State

• Citation: 13 So. 492,98 Ala. 40
• Parties: FOUNTAIN v. STATE.
• Decision Date: 06 June 1893
• Court: Alabama Supreme Court

13 So. 492

98 Ala. 40

FOUNTAIN v. STATE.

Supreme Court of Alabama

June 6, 1893

Appeal from city court of Decatur; Wm. H. Simpson, Judge.

John Fountain was convicted of selling or removing mortgaged property, and appeals. Affirmed.

The evidence for the state tended to show that on December 15 1890, the defendant bought of one C. E. Marks a yoke of oxen and wagon, and gave a mortgage on this property, and another yoke-a red ox and a brown ox-and wagon, which the defendant already had in his possession, to secure the payment of the debt so incurred. This mortgage became due on the 10th of March, 1891. When the mortgage fell due, on March 10, 1891 Marks went to the defendant, and called for the property, and found that the defendant did not have the red and brown oxen in his possession. The defendant told Marks that these oxen had died. Marks asked the defendant to show him where the carcasses were, and defendant went with him, and showed him one carcass, but could not find but one, which Marks claimed was the carcass of a cow which he himself had hauled off a few days before. Marks testified that he had seen these oxen in the defendant's possession about 10 days before this time. Marks got three steers and the two wagons from the defendant, and has never made any sale of this property under the terms of the mortgage. One J. I. Murphy, a witness for the state, testified that some time in the latter part of the year 1890, about the 1st of December, he saw the defendant offer for sale a yoke of oxen to one Edgefield, but did not remember the description of the oxen. One Breedlove, another witness for the state, testified that in December, 1890, the defendant sold to Edgefield a yoke of oxen; that he was uncertain about the date, but it was some time in December 1890, before Christmas; and that he also heard the defendant say that he sold the oxen to said Edgefield. Taylor Harris, a witness for the defendant, testified that he hauled off for the defendant two dead oxen-one of which was a red one, and the other flea bitten-some time about January, 1891. The defendant, being introduced as witness in his own behalf testified that one of the steers he mortgaged to Marks died about January 15, and the other about January 18, 1891, and that the oxen he sold to Edgefield were not the oxen covered by the mortgage which he had given to Marks, but that he sold them in December, 1890, before he executed said mortgage. In rebuttal the state introduced two witnesses, who, after testifying that they were acquainted with the defendant, and knew his reputation for truth and veracity in the community in which he lived, testified that his reputation for truth and veracity were bad, and that they would not believe him on oath. Upon the introduction of all the evidence the defendant requested the court to give the following written charges and separately excepted to the court's refusal to give each of them, as asked: (1) "If the jury believe the evidence, they must acquit the defendant." (2) "If the jury believe the testimony of Marks, that the defendant had the yoke of oxen in question in this case in his possession about March 1, 1891, they cannot find him guilty of the sale to Edgefield, in December, 1890." (3) "The fact that Marks did not get back the yoke of steers covered by the mortgage, by itself, does not furnish any presumption that the defendant sold or removed the yoke of oxen, as charged in the indictment." (4) "Unless it is proved, beyond a reasonable doubt, that the defendant sold or removed a yoke of oxen, the jury cannot find him guilty under the indictment. The sale or removal of one ox is not sufficient." (5) "If the jury find that Marks took from the defendant, at the time when he took possession of...