State v. Perry

• Decision Date: 22 February 1911
• Citation: 70 S.E. 304,87 S.C. 535
• Parties: STATE v. PERRY.
• Court: South Carolina Supreme Court

70 S.E. 304

87 S.C. 535

STATE v. PERRY.

Supreme Court of South Carolina

February 22, 1911

Appeal from General Sessions Circuit Court of Saluda County; R. C Watts, Judge.

M. H Perry was convicted of selling and disposing of mortgaged property, and he appeals. Reversed and remanded.

Thurmond & Ramage, for appellant. Geo. Bell Timmerman, Sol., for the State.

JONES C.J.

Appellant was indicted for selling and disposing of personal property under mortgage or lien in violation of section 337 of the Criminal Code of 1902, and, upon conviction, was sentenced to imprisonment in the penitentiary for six months, or a fine of $100.

The first question presented is whether there was error in overruling the demurrer to the indictment. Omitting formal matters, the indictment charged: "That M. H Perry on the first day of November in the year of our Lord one thousand nine hundred and nine with force and arms, at Saluda, in the county of Saluda and state of South Carolina did willfully and unlawfully sell and dispose of certain personal property, to wit, two bales of cotton and one horse and one mule over which a lien existed-- that is to say, a certain chattel mortgage in favor of Reid & Chapman, a firm composed of G. T. Reid and A. W. Chapman, made and duly executed by M. H. Perry to secure payment of one hundred and seventy-five dollars--and that the said M. H. Perry did not then and there have the written consent of the lienee, nor did he, the said M. H. Perry, pay the debt secured by said chattel mortgage within ten days after sale, nor did he within said period deposit the amount of said indebtedness secured by said chattel mortgage with the clerk of the court of common pleas for the county of Newberry in which the mortgage debtor then resided, the said M. H. Perry then and there well knowing said lien to exist, against the form of the statute," etc.

The solicitor announced that the evidence would be confined to the sale and disposal of the cotton. The grounds of demurrer were: First. That the property, two bales of cotton, is not alleged to be of any value whatsoever. Second. That the nature and character of the offense is not sufficiently described in the indictment in that it fails to state the names of the person, corporation, or firm to whom the cotton was sold.

Section 337 provides: "Any person or persons who shall sell or dispose of any personal property on which any mortgage or other lien exists, without the written consent of the mortgagee or lienee or the owner or holder of such mortgage or lien, and shall fail to pay the debt secured by the same within ten days after such sale or disposal, or shall fail in such time to deposit the amount of the said debt with the clerk of the court of common pleas for the county in which the mortgage or lien debtor resides, shall be deemed guilty of a misdemeanor and on conviction thereof shall be imprisoned for a term not more than two years or be fined not more than five hundred dollars, or both, in the discretion of the court; provided, that the provisions of this section shall not apply in cases of sales made without knowledge or notice of such mortgage or lien by the person so selling such property; provided, further, that when the value of such property does not exceed twenty dollars, the punishment shall not exceed a fine of one hundred dollars, or imprisonment not exceeding thirty days."

Under our construction of this statute the value of the property disposed of is material in determining the grade of the offense and the punishment prescribed therefor. It in effect creates two offenses, one disposing of personal property under lien when the property does not exceed $20 in value punishable by a fine of $100 or imprisonment not exceeding 30 days, and this offense is within the jurisdiction of a magistrate. State v. Pinckney, 74 S.C. 447, 54 S.E. 606. The other offense is disposing of personal property under lien when the property exceeds $20 in value, punishable by imprisonment not more than 2 years or a fine of not more than $500, or both, in the discretion of the court, an offense exclusively within the jurisdiction of the court of general sessions. Whenever the value of property is material it should be alleged in the indictment. State v. Gossett, 9 Rich. Law, 432; Clark's Criminal Pro. 226. This...