Wilburn v. State

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Wilburn v. State, 29 S.W. 149, 60 Ark. 141 (Ark. 1895)
• Decision Date: 05 January 1895
• Parties: WILBURN v. STATE

29 S.W. 149

60 Ark. 141

WILBURN v. STATE

Supreme Court of Arkansas

January 5, 1895

Appeal from Lee Circuit Court, GRANT GREEN, JR., Judge.

Reversed and remanded.

E. D Robertson for appellant.

The lease to Davis, and the lease back to Wilburn did not create any lien on appellant's crop. 7 Ark. 253; 31 id. 597; 33 id. 387. Derrick was an innocent purchaser for value without notice of any lien, if there was one.

James P. Clarke, Attorney General, and Chas. T. Coleman for appellee.

OPINION

WOOD, J.

The defendant appealed from a conviction of false pretenses. The indictment charged him with feloniously and falsely pretending to W. T. Derrick "that he, the said W. C Wilburn, was then and there the legal owner of a certain growing crop of cotton and corn then situate on the land of him the said W. C. Wilburn," and did then and there execute a deed of conveyance of the said crop to W. T. Derrick, as security for the sum of one hundred and eighty-five dollars in value of money and property to be thereafter furnished to said Wilburn by said Derrick. And then and there, by reason of said false representations and pretenses, did unlawfully and feloniously obtain of the said Derrick the sum of four dollars of good and lawful paper arid silver money, currency of the United States of America, property of the said Derrick and of the value of four dollars, and a lot of molasses and flour and meat and corn, the property of the said W. T. Derrick, and of the value of fifteen dollars."

Derrick, the prosecuting witness, testified that, "on the 13th day of June, 1892, the defendant came to me, and asked me to furnish him some money and supplies to enable him to make a crop which he stated he then had upon his own place in Marianna, which he offered to give me a mortgage on to secure the advances. He said he had no incumbrances on it. I advanced him four dollars in money, and during the crop season advanced him goods and supplies amounting to about twenty-eight dollars, advancing him the last item, some meal, on September 6, 1892." This was all the evidence as to the kind and value of the property obtained.

The proof did not support the allegations of the indictment, which specifically named and described the money and property obtained. The proof should have been equally specific. The prosecution having alleged that the defendant obtained four dollars of paper and silver money, and a lot of molasses and flour and meat and corn, of the value of fifteen dollars, should have shown, under this allegation, that silver and paper money and molasses, flour, meat and corn were obtained by reason of the false pretenses. He shows that four dollars were obtained, but does not show whether it was gold, silver or paper money. He shows that goods amounting to twenty-eight dollars were obtained, but does not show whether the goods were molasses, flour, meat and corn, as charged, or potatoes, chickens, eggs and meal. Meal is mentioned in the proof, but is not mentioned in the indictment. The defendant, under a charge of this kind, had a right to insist upon the State making out the case she had alleged. The proof was not responsive to the allegations, and for this reason the cause must be reversed.

2. In view of a new hearing, we deem it necessary to notice the fourth ground of the motion for new trial, which is as follows: "That the court erred in allowing plaintiff to introduce the evidence of the contents of the rent note executed by Ben Lomax to defendant, without requiring plaintiff to prove the destruction or loss of the note." Witnesses testified that, prior to the mortgage executed by defendant to Derrick, the defendant had rented his entire place for the year 1892 to one Ben Lomax, and that the rent contract was evidenced...