Monasco v. State

• Decision Date: 30 June 1913
• Docket Number: 16,595
• Citation: 105 Miss. 551,62 So. 427
• Court: Mississippi Supreme Court
• Parties: JOE MONASCO v. STATE

62 So. 427

105 Miss. 551

JOE MONASCO v. STATE

No. 16,595

Supreme Court of Mississippi

June 30, 1913

APPEAL from the circuit court of Covington county, HON. W. H HUGHES, Judge.

Joe Monasco was convicted of selling mortgaged cotton and appeals.

The facts are fully stated in the opinion of the court.

Reversed and dismissed.

M. U Mounger, for appellant.

This was a very weak case against the defendant, and the verdict of guilty must undoubtedly have been caused by either prejudice or undue influence. Defendant was convicted evidently on the testimony of W. J. Morris, agent for the prosecuting corporation who attested that he bought the cotton straight out. The great weight of evidence is against this theory. In the first place, the first count in the indictment alleges, that it was deposited for future sale. Morris told Moore immediately afterwards, that he did not buy it; that he got uneasy about it and sent for it. This evidence given by disinterested witnesses for the state corroborates appellant in the point that there was no sale. The first count in the indictment does the same thing; and yet on the unsupported testimony of Morris, an interested witness, who had an old account that he wanted to collect against appellant, the appellant was convicted, although he was further corroborated by Fairchilds and Rawls as above referred to. The state relied upon the conviction of appellant for failing to tell the Ship Island Lumber Co. about the R. Watts & Co. trust deed. This was the only trust deed introduced in the record.

It was alleged in the indictment that there was a lien in favor of R. Watts & Co. It was not alleged that there were several liens so far as this trust deed is concerned. Defendant testified that there was no intention to give a lien on the crop and that he did not know that R. Watts & Co. held a lien on the crop. His testimony on this point is nowhere disputed so far as this trust deed is concerned; so that there is no evidence to show that appellant knew there was a trust deed or lien on the crop, unless it be argued that he knew that he himself held a trust deed on this cotton which he had transferred to R. Watts & Co.; that they held the same at the time the money was advanced, and that he was guilty for failing to inform the Ship Island Lumber Co. of this trust deed. In the first place in regard to this, he was being tried for obtaining money under false pretenses under section 1166, and not for selling mortgaged property under section 1168. The state proceeded as if they were trying him for obtaining money under false pretenses. It would not have been fair to try defendant for two crimes at the same time. Again it would have been a variance because it was not alleged that R. Watts had more than one lien; and if they introduced the one to prove another it would have taken the defendant by surprise. There is absolutely no proof in the record that R. Watts held any other trust deed from Monasco except on cross-examination. Monasco said something about endorsing the deed he held from A. L. Fairchilds. There is absolutely no proof in the record that R. Watts & Co. held that trust deed at the time the money was advanced to Monasco by the Ship Island Lumber Co.; and there is no proof that it was unpaid so far as R. Watts & Co. is concerned. If it was put up with R. Watts & Co. at all it must have been placed there at a collateral security; and there is no proof that at that time it was unredeemed. Appellant was a very ignorant man, couldn't read and write; and I don't think that he knew whether or not this trust deed had ever been endorsed to R. Watts & Co. If it had been it would have been easy to have proven it by the original deed or the record of the same. I do not really think that the deed was ever transferred or endorsed to R. Watts & Co. at all, but the court instructed the jury that they could not convict the defendant for failing to tell the Ship Island Lumber Co. about the deed from A. L. Fairchilds to appellant, or failing to tell the Ship Island Lumber Co. about any other lien of R. Watts & Co. So it must necessarily follow that defendant was convicted merely because he did not tell the Ship Island Lumber Co. that R. Watts & Co. held the trust deed, as we have shown. The record conclusively shows that appellant didn't know about this trust deed, hence his conviction for that reason alone was erroneous. Again the trust deed referred to was a deed from Mrs. J. N. Monasco to R. Watts & Co., and was signed by appellant as her husband. The only way that the record shows or attempts to show that the cotton in question was mortgaged, was by showing that it was cotton raised by A. L. Fairchilds on a place claimed to be owned by appellant. The mortgage referred to gave R. Watts & Co. a lien on any cotton that the hands of Mrs. J. N. Monasco might raise; but it did not give a lien on any cotton that the hands of appellant might raise, hence there was no proof in the record that R. Watts & Co. had a lien on this particular cotton.

Instruction number one for the state is wrong because it instructs the jury that if they believe that defendant obtained the money in manner and form as charged in the second count in the indictment, then it is the sworn duty of the jury to convict; it is not charged in the second count in the indictment that appellant knew of any deed and trust to R. Watts & Co., but before the jury could legally be authorized to convict, it must be alleged in the indictment that he knew of the lien, and then be proved that he knew of it. According to this instrument, the defendant could be convicted without this being alleged and without its being proven. This seems to me to be absurd.

The court erred in refusing to give the appellant instruction number three. This was the law of the case evidently; the defendant wanted this instruction so that they could put it square up to the jury that under the law and the evidence in this case they would have to believe that there was a straight out sale of the cotton to Morris before they could convict. As before said, that was the theory of the state in the case, and there was a straight out sale; because Morris swore that there was a straight out sale. But when the state gets its instructions, it instructs the jury that if defendant bargained the cotton and so forth, he is guilty and when defendant asks for instructions on the theory that the title must have passed before there can be a conviction in this case, the court refused the instruction. If we had gotten our instructions, we could have said to the jury, "Before you can convict in this case, you must believe that there was a complete sale beyond all reasonable doubt; you cannot believe there was a complete sale beyond a reasonable! doubt because there was no price entered on the books at the time in the regular business way; there was no entry at all made on the books at the time. The cotton was not actually turned over to the Ship Island Lumber Co. Morris told Moore he did not buy it. Hence you cannot believe beyond all reasonable doubt that there was a sale. "Under the state's instructions, counsel for the state could argue and did argue to the jury, if you believe there was some negotiations in regard to the cotton and that the Ship Island Lumber Co. advanced $ 125 to defendant, and defendant did not tell the Ship Island...