Wallace v. State, 26302.

• Decision Date: 16 June 1937
• Docket Number: No. 26302.,26302.
• Citation: 55 Ga.App. 872,192 S.E. 81
• Parties: WALLACE. v. STATE.
• Court: Georgia Court of Appeals

55 Ga.App. 872

192 S.E. 81

WALLACE.

v.STATE.

No. 26302.

Court of Appeals of Georgia,

Division No. 1.

June 16, 1937.

Syllabus by the Court.

In a prosecution for the fraudulent sale of personal property on which there is a mortgage or bill of sale to secure a debt under Code, § 67-9901, where the evidence disclosed that the holder of the bill of sale impliedly consented to the sale of the property by the defendant to the party to whom defendant did actually sell it, a conviction is not warranted. In such case two elements of the offense are lacking, absence of consent, and an intent on the part of the defendant to defraud the holder of the bill of sale to secure a debt.

The judge erred in overruling the motion for new trial.

Error from City Court of Millen; L. P. Strickland, Judge.

H. C. Wallace was convicted of making fraudulent sale of mortgaged personalty, and he brings error.

Reversed.

C. E. Anderson, of Millen, for plaintiff in error.

D. A. Bragg, Sol. pro tem., of Millen, Chas. G. Reynolds, of Atlanta, and Milton Carlton, of Millen, for the State.

GUERRY, Judge.

"D. A. Bragg, Sol. pro tem. of the city court of Millen, in the name and behalf of the citizens of Georgia, charge and accuse H. Carl Wallace with the offense of mis demeanor * * * for that the said H. Carl Wallace on the 15th day of May, 1936, * * * did * * * unlawfully * * * after having executed to W., E. Alwood a certain mortgage covering with other property therein named, a certain automobile, to wit, one 1931 model Chevrolet coach automobile, motor number 2785817 did sell and otherwise dispose of said automobile, before the payment of the mortgage debt, without the consent of and with intent then and there to defraud the mortgagee, and to the loss and damage of mortgagee in the sum of $70. * * *" On this accusation the defendant was convicted, and he excepts to the overruling of his motion for new trial which contains only the general grounds.

This accusation is based on Code, § 67-9901, which provides: "If any person, after having made a mortgage deed to personal property, or bill of sale to secure debt, shall sell or otherwise dispose of said property or cause the same to be removed beyond the limits of the State before the payment of the mortgage debt or debt secured by bill of sale, without the consent of, and with intent to defraud, the mortgagee, and loss shall thereby be sustained by the holder of the mortgage or bill of sale, the offender shall be punished as for a misdemeanor." To sustain a conviction under this section, the evidence must show that the defendant sold or otherwise disposed of property after having made a mortgage deed thereto, or bill of sale to secure a debt, and that (1) the sale was without the consent of the mortgagee or person holding the bill of sale to secure a debt, (2) was with the intent to defraud the mortgagee or person holding the bill of sale to secure a debt, and (3) that the mortgagee or holder of the bill of sale to secure a debt suffered loss thereby. Morrison v. State, 111 Ga. 642, 36 S.E. 902; Reece v. State, 5 Ga.App. 663, 63 S.E. 670; Davis v. State, 7 Ga.App. 332, 66 S.E. 960; Thompson v. State, 12 Ga.App. 201 (2), 76 S.E. 1072; Farmer v. State, 18 Ga.App. 307 (3), 89 S.E. 382; White v. State, 24 Ga.App. 74, 100 S.E. 39; Dempsey v. State, 94 Ga. 766, 22 S.E. 57, 58.

We have carefully read and considered the evidence before us, and we are prepared to hold that it is not sufficient to support the conviction, in that it does not clearly show that the sale was made without the consent of the prosecutor, or that there was any intent to defraud the prosecutorin the sale of the property. The first of the State's two principal witnesses was Thetus Lewis, the gist of whose testimony was that he purchased the automobile in question from the defendant, and that the defendant did not advise him that Mr. Alwood had a bill of sale thereon, but that he learned of the existence of the bill of sale before he finished paying the defendant for the car. Alwood, the other witness, to whom defendant had executed a bill of sale on the automobile (and on whose testimony this conviction must rest), testified very clearly on direct examination that the defendant sold the automobile without his permission or consent and to his loss and damage of $70. However, on an examination of his testimony on cross-examination, and when considered as a whole, it appears that he did give his consent to the sale of the automobile to Lewis, at least impliedly so, and his testimony thus tends to rebut any inference of intent to defraud him on the part of the defendant, which might arise from the sale of the automobile, on which there was an outstanding bill of sale to secure a debt. To illustrate, it appears...