Osborne v. State
| Decision Date | 13 October 1913 |
| Citation | 160 S.W. 215,109 Ark. 440 |
| Parties | OSBORNE v. STATE |
| Court | Arkansas Supreme Court |
Appeal from St. Francis Circuit Court; J. M. Jackson, Judge reversed.
STATEMENT BY THE COURT.
Appellant was indicted for the crime of disposing of mortgaged property, upon which a lien existed, with the intent to defraud the holder of the lien, the indictment alleging:
"* * * That said Chester Osborne, in the county and State aforesaid, on the 20th day of May, A. D. 1912, then and there unlawfully and with the intent to cheat and defraud one Eugene Williams, did sell one red cow, of the value of twelve dollars, upon which the said Eugene Williams then and there had a lien, by virtue of a certain mortgage or deed of trust, which was duly executed acknowledged and delivered to the said Eugene Williams by the said Chester Osborne; that the said Chester Osborne's sale of said cow was with the felonious intent to defeat the said Eugene Williams, the holder of said lien, and the collection of his debt, which was more than ten dollars, against the peace, etc."
A demurrer was interposed to the indictment and overruled.
The testimony shows that after the overflow of the Mississippi River in 1912, the appellant sold a red cow, for the disposition of which he was indicted, to one McFall, who paid him $ 12.50 for her and butchered her some time in the fall in September or October. It was also shown that he had executed a deed of trust on the 30th day of March, 1912, to S. H. Mann, as trustee for Eugene Williams, to secure certain indebtedness, conveying certain personal property particularly described, and "twenty-five head of cattle," "all the cattle I now own," etc along with the crops of corn and cotton to be raised by him that year.
Appellant testified that he sold the cow, and did so openly, with the consent and under the direction of Theo Bond, a member of the firm of Scott Bond & Sons, who held a prior mortgage upon said cow, particularly describing her, dated March 22, 1911. That he needed some money to move some tenants back on his place, and went to Mr. Williams first for the money, and couldn't get any money from him. He then went to Scott Bond & Sons, and they told him to sell the cow, included in the mortgage, and take that money and use it for the purpose of putting his tenants back on the place after the overflow which he did.
The court refused to allow him to introduce and read in evidence the mortgage to Scott Bond & Sons, of said date, in which the cow was included with other property, to secure the payment of a note for $ 500 and advances. A member of that firm testified that appellant came to them for money to move the family back into the bottoms on his place, and, not having the money, they directed him to sell the red cow covered by their mortgage and get the money, and that he did so by their direction and with their knowledge and consent. That he regarded that his firm became the owner of the cow after October 15, but they had not foreclosed the mortgage.
The court also refused to allow this witness to state what amount appellant owed to said Scott Bond & Sons, on the debt secured by their mortgage on the date of the sale of the cow by him, and likewise the value of the property described in their said mortgage which matured October 15, 1911.
Appellant testified that he did not give any mortgage to Eugene Williams on the red cow. That one George Walker drew the mortgage up in his presence alone, and wanted a mortgage on all his stock, and he explained to him that there was some stock or cattle that Bond had a mortgage on, describing it, including one red cow, and that Walker stated, That he was misled by Walker in giving the mortgage to Williams upon the cow, if it was included therein. That he had no intention to include it. That he did not intend to give him a lien at all on the red cow and the other property in the Bond mortgage, as he explained to Walker at the time he drew the mortgage. He testified further that he had not paid the debt secured by the mortgage. That after the overflow, he came to Forrest City to get $ 5 from Mr. Eugene Williams to put some negroes back on his place, and Mr. Williams refused to let him have it, and, being under obligations to them, he then went to Mr. Bond to get the money, and he not being present, went to Theo. Bond, a member of the firm, who told him he didn't have the money, but that the negroes ought to be put back on the place to make a crop and to see Mr. Williams, who was furnishing him, and being told that Mr. Williams had refused to let him have it, he said I had some cattle upon which they had a mortgage, and that I could go and get them and sell them. That that was all he could do. That he brought the cow down in broad daylight and carried it to McFall's, in Scott Bond & Sons' gasoline launch, and offered it for sale and was paid $ 11.95 in money, which was used to move the tenants back on his place. That he would not have disposed of it, except under the instructions of Mr. Bond, and further:
Q. At the time you sold that cow under the directions of Theo. Bond, did you owe Scott Bond & Sons?
A. Yes, I did. I owed them a debt that was due under the mortgage, that was past due, and a debt which was far more than the value of the stock named in the mortgage.
This question and answer was objected to and excluded from the jury's consideration, over appellant's exceptions. He said further that he did not have in mind at all that Mr. Williams had a mortgage on the cow nor any idea or intention of violating the terms of his mortgage by selling anything that the mortgage covered.
Walker testified that he remembered taking the mortgage for Mr Williams; that Osborne told him that he had twenty head of...
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...there is no mortgage lien after a sale with the lienholder's consent. Lawhorn v. State, 108 Ark. 474, 158 S.W. 113; Osborne v. State, 109 Ark. 440, 160 S.W. 215; Murry v. State, 150 Ark. 461, 234 S.W. 485. See also, Mitchell v. Mason, 184 Ark. 1000, 44 S.W.2d 672. The state argues that, in ......
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