Holcomb v. State

Citation94 So. 917,19 Ala.App. 24
Decision Date30 May 1922
Docket Number6 Div. 974.
CourtAlabama Court of Appeals

Rehearing Denied Oct. 31, 1922.

Appeal from Circuit Court, Jefferson County; A. B. Foster, Judge.

F. H Holcomb was convicted of removing personal property with the purpose of defrauding one who had a lawful claim thereto under a written instrument, and he appeals. Affirmed.

Certiorari denied 94 So. 921.

Denson & Ivey, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.


The indictment here was under section 7342 of the Code (1907) and charged the defendant with having sold or removed certain personal property with the purpose to hinder, delay, or defraud P.J. Martin, who had a lawful and valid claim thereto, under a written instrument, having at the time a knowledge of the existence of such claim. As answer to this indictment, the defendant filed a plea of former acquittal in which it was averred that he had already been put to trial upon an indictment under section 7423 of the Code (1907) charging him with selling or conveying the identical property described in the present indictment, upon which he had given a written mortgage, and which was then unsatisfied, without first obtaining the consent of the lawful holder thereof; and that upon said trial he had been acquitted of said charge by a jury. The plea further averred that the offense charged in this indictment is based upon the same matter and transactions as that for which he was tried and acquitted in the first indictment.

To this plea the state interposed several grounds of demurrer. The court sustained these demurrers, and the defendant insists that reversible error was committed in so doing.

In order to constitute an offense under section 7423 of the Code 1907, one must "sell" or "convey" personal property upon which he has given a written mortgage, lien, or deed of trust, and which was then unsatisfied in whole or in part, without first obtaining the consent of the lawful holder thereof to such sale or conveyance; while under section 7342, Code 1907, the offense therein denounced may be committed by "removing" or "selling" personal property, if such removing or selling is done with the purpose of hindering, delaying, or defrauding any person who has a claim thereto, under a written instrument, lien created by law for rent or advances, or other lawful or valid claim verbal or written, provided that such removing or selling of such property is done with a knowledge of the existence thereof.

It will thus be seen that these two offenses are of a different character and their constituent elements vary in a marked degree. The first offense, "selling or conveying mortgage property," is a misdemeanor, without regard to the value of the property involved, and under a prosecution for this offense the burden rests upon the prosecution to prove, by the required degree of proof, that the accused under the named conditions, that is to say, without the consent of the holder of the claim and with a knowledge of its existence, "sold" or "conveyed" the property in question, and a mere removal of such property would not be sufficient upon which to predicate a judgment of guilt for this offense.

The second above-mentioned offense, "removing or selling personal property to which others have a claim," is a felony provided the value of the property involved is $25 or more; and to constitute this offense "any removal" of the property in question, if done with a knowledge of the existence of the lien or claim, and with the purpose of hindering, delaying, or defrauding the person who has the claim thereto, makes the offense complete.

In order to successfully plead former jeopardy, it must be shown that the offense charged in the two prosecutions is the same in law and in fact, for the words "same offense" mean the same identical act and crime. Several rules have been laid down by the authorities for determining whether the crimes are identical. The rule most applicable here is to ascertain whether the facts alleged in the second indictment would, if given in evidence, have warranted a conviction on the first indictment mentioned in the plea. We think not, for the reason that on the trial of the first indictment the evidence may have failed to disclose the fact that the defendant either "sold" or "conveyed" the mules and wagon in question, and yet it may have been shown conclusively that the accused had "removed" same with the intent and for the purpose indicated. In this event a prosecution for selling or conveying the mortgaged property must of necessity fail, and a further prosecution to meet the facts developed would not be improper or in any manner tend to invade the constitutional right of defendant not to be twice put in jeopardy for the same offense.

The case of Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am. St. Rep. 79, cited by appellant and relied upon as a direct authority to sustain his contention of the identity of offenses, is not in point. In the Hurst Case the act of accused in carrying the file into the jail, etc., was the identical act complained of in the two indictments; but here this is not the case, for it is not contended by the state that this defendant sold or conveyed the mules and wagon, but the insistence is, and the testimony offered by the state tends to show, that the defendant "removed" the property from place to place in order that the prosecutor might not be able to locate it. It was for the jury to say, from the evidence, whether this is true or not, and, if true, whether or not P.J. Martin had a claim thereto under a written instrument, as contended, and that the accused in removing said property did so with the knowledge of the existence of such claim and for the purpose of hindering, delaying, or defrauding Martin, the person named in the indictment.

The testimony offered by defendant, on the other hand, tends to show that the defendant had paid the claim in full prior to the filing of the indictment, and that he had made no attempt to conceal the whereabouts of the property, but was acting in good faith in the matter. There is no evidence that the property was sold, but there is some evidence to the effect that it was removed from place to place, and that the defendant told different stories to one Cole, a deputy sheriff who tried to locate the property, having given to Cole erroneous information as to where the property could be found on two different occasions.

The evidence is in irreconcilable conflict. The duty therefore devolved upon the jury to say which version of the testimony was correct.

Under the terms of the present indictment, it must appear that the defendant entertained a purpose to hinder, delay, or defraud while, under the first indictment, such purpose was not necessary to a conviction. In other words, the two statutes covered offenses which are entirely different, and there is not an...

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11 cases
  • Sovereign Camp, W.O.W. v. Reed, 7 Div. 240.
    • United States
    • Supreme Court of Alabama
    • November 16, 1922
    ...payment, respectively, July 12, 1920, and April 6, 1921. The judgment was of date of May 3, 1921, for $1,078.22. The evidence fails to [94 So. 917.] disclose when the proof of death, beneficiary certificate, and receipt book reached the home office of defendant at Omaha, Neb. It is fair to ......
  • Felder v. State, 3 Div. 701.
    • United States
    • Alabama Court of Appeals
    • June 30, 1931
    ...16 Ala. App. 647, 81 So. 139; Powell v. Folmar, 201 Ala. 271, 78 So. 47; Hines' Case, 17 Ala. App. 509, 87 So. 696; Holcomb v. State, 19 Ala. App. 24, 94 So. 917; Ex parte Holcomb, 208 Ala. 698, 94 So. 921; Anderson v. State, 19 Ala. App. 120, 96 So. 634; Id., 209 Ala. 489, 96 So. 636; Mote......
  • Cox v. State, 7 Div. 845.
    • United States
    • Alabama Court of Appeals
    • March 22, 1932
    ...in finding from the evidence that the defendant had disposed of the car. Martin v. State, 3 Ala. App. 90, 58 So. 83; Holcomb v. State, 19 Ala. App. 24, 94 So. 917. In addition to the above, the legal presumptions to be drawn therefrom as to defendant's intent to defraud, which may be presum......
  • Taylor v. State, 8 Div. 908
    • United States
    • Alabama Court of Appeals
    • August 17, 1965
    ...Folmar v. State, 19 Ala.App. 435, 97 So. 768, puts the onus of persuasion by showing consent on the defendant. III. In Holcomb v. State, 19 Ala.App. 24, 94 So. 917, headnote 3 'In a prosecution for removing chattels with intent to defraud one having a claim thereto under a written instrumen......
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