Lawhorn v. State

• Decision Date: 09 June 1913
• Parties: LAWHORN v. STATE
• Court: Arkansas Supreme Court

158 S.W. 113

108 Ark. 474

LAWHORN v. STATE

Supreme Court of Arkansas

June 9, 1913

Appeal from Fulton Circuit Court; George W. Reed, Judge; reversed.

STATEMENT BY THE COURT.

The appellant was tried and convicted at the February term, 1913 of the Fulton Circuit Court for the offense of selling mortgaged property. The indictment alleged, substantially that the said I. E. Lawhorn on the 10th day of October, 1911 with the intent to cheat and defraud one E. L. Jackson, did feloniously sell, barter, and dispose of six hundred pounds of seed cotton of the value of $ 18, upon which cotton the said E. L. Jackson then and there had a lien by virtue of a certain mortgage. Many exceptions were saved at the trial and have been presented for our consideration, but we discuss only the question of instructions, as it is decisive of the case.

E. L Jackson for the state testified as follows: That in May, 1911, he and one R. A. Holloway were engaged in the general mercantile business, as partners, and the defendant Lawhorn became indebted to them in the sum of thirty-five dollars, and to secure this debt, gave them a mortgage on a crop of cotton to be raised by him in that year, described as "two-thirds of six acres of cotton to be raised on J. H. Decker's farm in the year 1911." He further testified, that on the day before the defendant sold the cotton, he was told by him that he was going to take the cotton down to Salem and sell it, as he could get more for it there than he (witness) could pay him for it. That he did not consent that this should be done, but he told the defendant that if he did do so he must bring him the proceeds of it; "that is, must pay me what the cotton brought, and that is the only way I gave my consent." That the defendant paid him only a part of the money derived from the sale of the cotton. It was also shown that before the cotton was picked, Jackson bought out the interest of his partner and became the sole owner of the debt secured by the mortgage.

The evidence on the part of the defendant tended to show that Jackson consented to the sale, but required that the proceeds of the cotton be paid him. That ten dollars of the money was paid to a merchant at Salem for supplies furnished defendant, on the credit of his landlord, to enable him to make a crop and one dollar was paid to Jackson and the remainder was spent for other purposes, not authorized by Jackson. Other cotton was picked by defendant, but became involved in litigation between Jackson and defendant's landlord, and Jackson failed to collect his entire debt.

Instructions were asked by defendant to the effect that if Jackson consented to the sale of the cotton, or that if the sale was not made with the intent existing at the time to defeat the enforcement of the mortgage, that defendant could not be convicted. These instructions were refused and defendant was convicted and given a sentence of six months in the penitentiary, and this appeal is prosecuted from that judgment.

Judgment reversed and cause remanded.

Kay & Black, for appellant.

1. Before defendant could be found guilty it must be shown that he made the sale with the intent to defeat the mortgagee's debt. This question should have been submitted to the jury. 68 Ark. 491; Kirby's Dig., § 2011; 34 Ark. 469.

2. Where the mortgagee consents to the sale, the mortgagor can not be convicted, even though he violates a condition that the proceeds should be accounted for. 69 Iowa 741; 94 Ga 766; 63 Ala. 61; 7 Cyc. 62, notes.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. It is not necessary to show a criminal intent under the statute. 43 Ark. 284.

2. Appellant did not have the consent of the mortgagee. 63 Ala 61; 69 Ia. 741; 37 Ark. 412; 44 S.W. 491; §§ 1868, Sand. & Hill's Dig., 2011 Kirby's Dig., and 1693, Mans. Dig. The offense is complete when the property is sold. In the sections in S. & H. Dig. and Kirby's...