Jones v. State

• Decision Date: 14 January 1897
• Citation: 113 Ala. 95,21 So. 229
• Parties: JONES v. STATE.
• Court: Alabama Supreme Court

21 So. 229

113 Ala. 95

JONES v. STATE.

Supreme Court of Alabama

Jan 14, 1897

Appeal from circuit court, Walker county; James J. Banks, Judge.

Jim Jones was convicted of removing property on which there was a lien, knowing at the time of the existence thereof, and appeals. Reversed.

The indictment contained two counts. In the first count, it was charged that the defendant, with the purpose to hinder, delay or defraud J. W. Hood, who had a lawful and valid claim thereto, removed the property. In the second count the claim to the property was laid in T. J. Snow. On the trial of the cause, as is shown by the bill of exceptions, the solicitor offered to introduce in evidence the mortgage purporting to be signed by W. J. Jones and his wife, which recited that it was given to secure the payment of the sum of $350 due by a note executed by the mortgagors on March 4, 1891, the date of the execution of the mortgage. In this mortgage there was conveyed the property which the defendant was charged with having removed. The mortgage was attested by one witness and was acknowledged by the mortgagors before said attesting witness as a notary public, and there was attached thereto the certificate of the judge of probate of Walker county that it had been recorded in his office,-the mortgage purporting to have been executed in Walker county. The defendant objected to the introduction of this mortgage in evidence upon the grounds (1) that the mortgage purported to have an attesting witness, and the execution of the same was not proved by said witness; (2) that the mortgage showed on its face that the mortgage was evidenced by a promissory note and the note was not produced. The court overruled this objection, allowed the mortgage to be introduced in evidence and the defendant duly excepted. The solicitor then offered to introduce in evidence the promissory note executed by the mortgagors on March 4, 1891, for $350, and payable to the order of John W. Hood. This note was attested by one witness. The defendant objected to the introduction of this note in evidence, upon the following grounds: "(1) That it purported to have an attesting witness and the execution of the said note had not been proven by said attesting witness. (2) Because the said note was irrelevant." The court overruled this objection, allowed the note to be introduced in evidence, and to this ruling the defendant duly excepted. Upon the introduction of J. W. Hood, the mortgagee, in the mortgage above referred to, he testified that he indorsed upon said mortgage the following transfer: "I, J. W Hood, this day transfer the within mortgage to T. J. Snow except Long note amount of it is $134.50, with interest from date March 1st, 1892, without recourse on John W. Hood. [Signed] J. W. Hood." The defendant objected to this testimony, as to the proof of the transfer, on the grounds (1) that said transfer purports to be a part of the debt and the consent of the debtor to the transfer is not shown, and (2) because the transfer purports to be by collateral security, and was made without the transfer of the original debt. The court overruled this objection, and the defendant duly excepted. The witness Hood further testified that the time he made this transfer he delivered to T. J. Snow the note and mortgage introduced in evidence. That he took the said note from W. J. Jones and agreed to let him have the amount of money mentioned therein if he could raise that much, and if he could not, that he would let him have as much as he was able to raise; that under such agreement and after the execution of the note, he let said Jones have $195, and afterwards took in part payment, a note from one B. M. Long for $144.50; that no other payment had been made on the note and mortgage while he held it. Upon the introduction of T. J. Snow, as a witness for the state, he testified that after the mortgage was transferred to him nothing was paid on it by the mortgagor; that he went to the residence of the mortgagor who then turned over to him the property described in the indictment, and he, Snow, kept it in his possession; that after giving due notice of the sale, he took the property to Hewitt, in Walker county, Ala., for the purpose of selling it under the mortgage; that while he was waiting for the sale, the defendant, together with one Aus Jones cut the horses loose, notwithstanding he, Snow, forbade their doing so; and that the horses were sent to the home of W. J. Jones, the mortgagor, where, as the witness knew, they had remained ever since. This witness further testified that the trade between him and Hood, in reference to the note and mortgage, was as follows: Hood owed the witness money, and the witness agreed to take the note and mortgage, and make his money out of it, if he could, and apply it to Hood's debt. The witness further testified that Aus Jones, the son of W. J. Jones, brought him $30, and offered it to him in full payment of the balance due on the note and mortgage, and that the witness said "it was nothing to him, and if Hood was willing, he would do so"; that he offered to take the $30 and give a receipt for the amount, but refused to give up the horses; but Aus Jones would not deliver him the $30 under such circumstances. W. J. Jones as a witness for the defendant, testified that he had paid on the Long note $144.50, and that after the transfer to Snow he calculated that the balance due was $30, which amount he sent to Snow by his son, Aus Jones, but Snow declined to accept it; that on the day the property was to be sold, he considered that the mortgage had been paid in full, and directed the defendant to take the horses and carry them home. This was substantially all the evidence in the case. In its general charge, the court instructed the jury, among other things, as follows: "I charge you that if the property was taken by the defendant for the purpose of hindering, or delaying any one it was Mr. Snow." To the giving of this charge, the defendant duly excepted, and also separately excepted to the court's refusal to give the following charge, among others, requested by the defendant: (1) "If you believe the evidence you cannot convict the defendant under the second count of this indictment."

Coleman & Bankherd, for appel...