State v. Murphy

• Decision Date: 11 May 1949
• Docket Number: 16215.
• Parties: STATE v. MURPHY.
• Court: South Carolina Supreme Court

53 S.E.2d 402

214 S.C. 517

STATE v. MURPHY.

No. 16215.

Supreme Court of South Carolina

May 11, 1949

C. Walker Limehouse, Orangeburg, Hydrick &amp Hydrick, Orangeburg, for appellant.

Julian S. Wolfe, Solicitor, Orangeburg, T. B. Bryant, Jr. Orangeburg, for respondent.

FISHBURNE, Justice.

A grand jury of Orangeburg County returned an indictment charging the appellant, J. J. Murphy, with disposing of personal property under lien, Code Section 1277. Upon trial of the case in the Court of General Sessions, at the September, 1948 term, he was found guilty and sentenced to serve imprisonment for a period of six months.

He prosecutes this appeal from an order denying his motion for a directed verdict made at the close of the testimony offered on behalf of the state. Error is also assigned relating to the admission of incompetent testimony, and with reference to the court's instructions to the jury.

We will deal first with the issue as to whether the trial court erred in refusing the motion for a directed verdict. The appellant offered no testimony. He was charged in the indictment with selling and disposing of ten Grade Guernsey heifers purchased from J. L. McLain for the sum of $1,500, which were covered by the lien of a purchase money mortgage executed and delivered by him to McLain on March 20, 1947.

The heifers were kept by appellant on a farm owned by G. E Fogle, three or four miles from the city of Orangeburg. From time to time McLain would visit the place to see how the cattle were faring. Upon receiving information several months after the sale that Murphy had sold and disposed of the mortgaged cattle and had left for parts unknown, McLain went to the Fogle place, but failed to find the cattle. Nor did he find Murphy. He thereupon made a diligent effort to locate the Guernsey cows. He went to the farm of D. E. Watford about five miles from the Fogle place, and there recognized and identified one of the heifers which he had sold appellant. McLain was positive in his testimony with reference to the identity of this particular heifer, which he described as a pretty one of solid red color--a dark red. None of the heifers sold by McLain to Murphy were ever recovered by him. Watford volunteered no assistance to the sheriff in picking out the cows he bought from appellant from his herd of Guernseys numbering more than seventy-five.

After locating the red heirs at Watford's place, McLain brought a claim and delivery proceeding against Watford and several other parties, but the sheriff was unable to make any seizure because of his inability to identify the mortgaged property from the description given in the mortgage. Watford testified that he had bought seven Guernsey cows from appellant. The chattel mortgage described the cattle merely as 'Ten (10) Grade Guernsey heifers this day purchased by me from James L. McLain.'

In our opinion, the trial judge committed no error in overruling the motion for a directed verdict and submitting this case to the jury. The evidence is easily susceptible of the inference that appellant sold at least one of the mortgaged heifers to Watford--the red heifer identified by McLain. The mortgaged cattle are indiscriminately referred to in the evidence as heifers or cows.

Error is assigned on the ground that a verdict of acquittal should have been directed because the description contained in the chattel mortgage is too vague and too uncertain for the mortgage to constitute a valid lien. There is no merit in this contention. The trial judge charged the jury that a mortgage which merely describes the property as a given number out of a larger number of chattels of like character and description, without giving any data or indicating any means whereby the particular chattels intended to be mortgaged can be separated or distinguished from the remainder, is void for indefiniteness as against third persons, but such a mortgage would be valid between the parties.

The foregoing charge correctly stated the general rule that a mortgage of a specified number of articles out of a larger number is not good as against third persons or others acquiring adverse rights, unless it furnishes the data for separating the mortgaged property from the mass of articles. 10 Am.Jur., Sec. 58, page 753; 14 C.J.S., Chattel Mortgages, § 61, page 669. But as between the parties, the description of the property mortgaged is sufficient if it so identifies the chattels that the mortgagee may identify, with a reasonable degree of certainty, what property is subject to his lien. Accordingly, a description insufficient as against third persons without notice may be amply sufficient as between the mortgagor and mortgagee. 14 C.J.S., Chattel Mortgages, § 57(2), page 659.

In this criminal prosecution, the rights of third persons were not involved and the evidence shows that McLain, the mortgagee, had no difficulty in identifying one of the heifers sold by appellant to Watford as being subject to the lien of his mortgage.

Error is assigned because the trial judge charged the law of circumstantial evidence and the law applicable to accomplices in the absence of any relevant evidence relating to such issues.

The only evidence...