State v. Holmes

• Decision Date: 02 March 1897
• Citation: 120 N.C. 573,26 S.E. 692
• Court: North Carolina Supreme Court
• Parties: STATE. v. HOLMES.

26 S.E. 692

120 N.C. 573

STATE.

v.HOLMES.

Supreme Court of North Carolina.

March 2, 1897.

Disposing of Mortgaged Property — Evidence —Burden of Proof.

A prima facie case of disposing of mortgaged property is made out by proof that defendant mortgaged his crops, and sold a partthereof, leaving the mortgage unsatisfied, even where the crops were subject to a prior landlord's lien.

Appeal from superior court, Wake county; McIver, Judge.

R. P. Holmes was convicted of disposing of mortgaged property, and appeals. Affirmed.

Indictment under section 1089 of the Code for disposing of mortgaged property. Execution of the mortgage was admitted. The evidence for the state showed that defendant was a renter; that he admitted to a witness the selling of a part of the crop mortgaged; that no part of the proceeds was applied on the mortgage, and that a balance was still due thereon. Defendant introduced no evidence. The defendant requested the court to charge: (1) That the lien of the landlord, Honeycutt, was superior to that of Holding, Davis & Co.; and, before the jury could convict, the state must prove to their satisfaction that defendant had raised on Honeycutt's land more of the crop described in the mortgage than was necessary to pay the rent; otherwise, the lien attempted to be given by the execution of the mortgage did not attach, and defendant would not be guilty under this indictment. (3) That it was required of the state, in order to convince the jury that the corn was disposed of with intent to hinder, delay, and defeat the rights of Holding, Davis & Co., to show that the rent of Honeycutt had been theretofore paid, and that the com sold had remained after the rent was paid, and that, after selling the corn, there was not enough corn, cotton, fodder, cotton seed, and potatoes raised on the land to satisfy the debt of defendant then unpaid, and as secured by the mortgage. The court refused to charge as requested, but told the jury that, if they believed the evidence of the state, the defendant was guilty. The defendant excepted. There was a verdict of guilty, and the judgment of the court was that the defendant pay a fine of $25 and costs. Defendant appealed.

Shepherd & Busbee and W. L. Watson, for appellant.

Atty. Gen. Walser, for the State.

CLARK, J. It was in evidence that the defendant, who was a renter, had sold part of the crop which was embraced in a mortgage given by him, and that a balance was still due thereon. The defendant offered no evidence. If there had been evidence that defendant had sold the corn to pay the prior lien for rent (State v. Ellington, 98 N. C. 749, 4 S. E. 534), or that sufficient of the crop had been retained to pay off the mortgage (State v. Manning, 107 N. C. 910, 12 S. E. 248), or tending to show that the sale had been made under circumstances making it justifiable, — as, for instance, the sale of perishable property merely to prevent loss, then the intent would have been a matter to have been left to the jury. But such matters of defense were peculiarly within the...