State v. Miller

• Decision Date: 10 November 1906
• Citation: 74 Kan. 667,87 P. 723
• Parties: STATE v. MILLER.
• Court: Kansas Supreme Court

87 P. 723

74 Kan. 667

STATE v. MILLER.

Supreme Court of Kansas

November 10, 1906

Syllabus

Proof of a purpose to defraud is essential to a conviction under section 4259 of the General Statutes of 1901, forbidding the sale of mortgaged personal property without the written consent of the mortgagee, and in a prosecution under such section an instruction is erroneous which undertakes to enumerate all the elements of the offense and makes no mention of the wrongful intent of the defendant.

Where an information charging the fraudulent concealment of mortgaged personal property describes the mortgage as one executed by the defendant and his wife to secure a note signed by them, and the evidence shows that, while the mortgage was signed by both, and included an assumption of liability for any deficiency, the note secured was signed by the defendant alone, the variance is not material, no prejudice being shown.

It is not required that different felonies prosecuted upon the same complaint and warrant shall be therein stated in separate counts.

Appeal from District Court, Graham County; Chas. W. Smith, Judge.

John I. Miller was convicted of fraudulently concealing mortgaged property and selling the same, and appeals. Judgment on first count affirmed, and on second count reversed and remanded.

G. W Jones, for appellant.

C. C Coleman, Atty. Gen., and John S. Dawson, for the State.

OPINION

MASON, J.

John I. Miller was prosecuted upon an information charging him in one count with fraudulently concealing mortgaged personal property and in another with selling such property without the written consent of the mortgagee. He was convicted upon each count, and appeals.

The second count contained an allegation that the sale complained of was made with the purpose of defrauding the mortgagee, but the instructions upon that branch of the case, in enumerating the matters necessary to be found by the jury in order to convict, omitted all reference to such fraudulent intent, so that the jury were authorized to find the defendant guilty if he sold the mortgaged property without the written consent of the mortgagee, irrespective of his motive. The question is therefore presented whether the statute (Gen. St. 1901, § 4259) makes it a crime to sell mortgaged chattels under any and all circumstances unless authority to do so is given in writing? The language of the section involved upon its face seems to bear that construction. It reads: "That any mortgagor of personal property or any other person who shall injure, destroy or conceal any mortgaged property, or any part thereof, with intent to defraud the mortgagee, his executors, administrators, personal representatives, or assigns, or shall sell or dispose of the same without the written consent of the mortgagee, or his executors administrators, personal representatives, or assigns, shall be deemed guilty of larceny." A somewhat similar statute was so construed in State v. Reeder, 36 S.C. 497, 15 S.E. 544, and the construction was approved in State v. Rice, 43 S.C. 200, 20 S.E. 986. Beard v. State, 43 Ark. 284, is to the same effect, but is accompanied by a strong dissent. State v. Bronkol, 5 N.D. 507, 67 N.W. 680, leans in the same direction, but there the use of the word "willfully" in the statute affects the matter. On the other hand, expressions indicating a contrary view are to be found in the following cases, in none of which, however, was it necessary to decide the question. Foster v. State, 88 Ala. 182, 7 So. 185; State v. Hurds, 19 Neb. 316, 27 N.W. 139; State v. Ruhnke, 27 Minn. 309, 7 N.W. 264. A similar question was involved in State v. Eastman, 60 Kan. 557, 57 P. 109. The statute there under consideration declared it to be embezzlement for an agent to fail to pay over money to his principal under certain circumstances, nothing being said with regard to his motive. Complaint was made of the failure of the trial court to instruct the jury that no conviction could be had unless they found that the defendant intended to convert the money to his own use. The court said: "The general rule, of course, is that a guilty intent is a necessary ingredient of crime. Bishop, Stat. Crime, § § 132, 231, 351, 362. We do not understand it to be disputed in this case as a general proposition. However, its application to the case is denied because of the failure of the statute to declare intent to be an ingredient of the offense. There are some cases which hold that, unless made so by statute, a guilty intent is not necessary to the commission of offenses mala prohibita; that is, not inherently bad, only bad because prohibited. The offense charged against the defendant in this case is not bad merely because prohibited, but it is malum in se-bad in itself. It is a species of embezzlement, and is classified by the statute in immediate...