Cooper v. State

37 Ark. 412

• Court: Supreme Court of Arkansas
• Decided: November 15, 1881
• Status: Published

Opinion

English, C. J.

On the third of September, 1881', Isaac-Z. Cooper was indicted in the Circuit Court of Lawrence county for removing mortgaged property, etc.

There were three counts in the indictment, the first count charging, in substance:

That said Isaac Z. Cooper, on the first day of June, 1881, in the county of Lawrence, etc., feloniously did remove beyond the limits of said county, one sorrel horse, of the value of fifty dollars, upon which sorrel horse then and there did exist a lien, by virtue of a deed of trust executed by the said Isaac Z. Cooper, on the thirteenth day of January, 1881, in favor of Gr. Kaufman, as trustee, for the benefit of E. Krone & Co., a firm composed of E. Krone and J. B. Oppeuheimer, which said deed of trust was endorsed as follows, to-wit:

“This instrument is to be filed, but not recorded.

“E. Krone & Co.,

“By Gabe.”

And was duly filed in the office of the Recorder of Deeds in and for said county of Lawrence; he, the said Isaac Z. Cooper, then and there not having the consent of the said Gr. Kaufman, trustee as aforesaid, or E. Krone & Co., so to ■do, against the peace, etc., etc.

The second count charged, in substance ;

That the said Isaac Z. Cooper, on the first day of June, 1881, in the county aforesaid, feloniously did secrete a certain sonel horse, of the value of fifty dollars, on which said sorrel horse then and there did exist a lien, by virtue of a deed of trust executed by the said Isaac Z. Cooper, on the thirteenth day of January, 1881. in favor of G. Kaufman, ■as trustee, etc., etc.

The remainder of this count was the same as the first.

The third count charged, in substance :

That the said Isaac Z. Cooper, on the first day of June, 1881, in the county aforesaid, feloniously did “sell, barter, ■or otherwise dispose of ” a certain sorrel horse, of the value of fifty dollars, on which said sorrel horse a lien then and there existed, by virtue of a certain deed of trust executed by the said Isaac Z. Cooper, on the thirteenth da}' of January, 1881, in favor of G. Kaufman, as trustee, etc., etc.

The remainder of this count was the same as the first and second.

The defendant entered a demurrer, in short, to the whole indictment, which the court overruled ' he was tried on the plea of not guilty, the jury found him guilty, and fixed his punishment at imprisonment in the penitentiary for two years. He filed a motion for a new trial, which was overruled, and he was sentenced in accordance with the verdict.

I. Did the court err in overruling the demurrer to the indictment? Did it charge against appellant any public offense?

EemoTmg morfcft?ty!PRel tiieiien?s Appellant was indicted under the Act of the third of x L ruary, 1875 (Acts of 1874-5, p. 129), which is as follows :

“Sec. 1. That sectiqn 1409 of Gantt’s Digest be and the same is hereby amended so as to read as follows: Any person, or persons, who shall hereafter remove beyond •the limits of this State, or of any county wherein the lien may be recorded, property of an}' kind, upon which a lien shall exist, by virtue of a mortgage, deed of trust, or by contract of parties, or by operation of law, or who shall sell, barter, or exchange, or otherwise dispose of any such property, Avithout the consent of the person or persons in AArhose favor such lien shall have been created or exists by Iuav, or Avho shall secrete the same, or any portion thereof, shall be deemed guilty of a felony,” etc.

The original act thus amended, passed December 21, 1846, provided that “Any person who shall remove beyond the limits of the State, or of any county wherein the lien may be recorded, property of any kind upon which a lien shall exist by virtue of a mortgage, deed of trust, or otherwise, as now prescribed by law, without the consent of the person in whose favor such lien shall have been created,, upon conviction thereof, shall be sentenced to hard labor in the penitentiary,” etc,

At the time the original act was passed, and at the time it was amended, under our system of registration, a mortgage, or dehd of trust, properly acknowledged and filed in the recorder’s office, was constructive notice to all persons, from the time of the filing. Gantt’s Dig. Secs. 860, 4288; Hannah v. Carrington, 18 Ark., 85; Oats v. Walls, 28 Ark., 248.

When the conveyance was so filed the lion was, in legal effect, for all purposes of notice, recorded. Such must have been the understanding of the Legislature when the acts were passed making it criminal to remove, etc., property on which a lien so existed. If the conveyance must actually be recorded before it is an offense to remove, secrete, sell, barter or exchange, or otherwise dispose of the property, it may be done without the commission of any crime, at any time between the filing of the instrument and . its actual registration. It is not to be supposed that the law-makers left open such a gap for the perpetration of wrong without punishment. There can be no good reason why the maker of a mortgage, or deed of trust should be punished for wrongfully removing or disposing of property covered by it, after the deed is actually recorded, and go unpunished for the same wrongful act, done after he has-solemnly executed and acknowledged the conveyance, and it has been filed for record, but before the recorder has had time or convenience to copy it on his record book. The latter is within the spirit of the statute, and as much within the mischief intended to be prevented by them as the former.

Mimg-the oient. ac°°£eoes? So, upon principle, we thinlc, a mortgage, or deed of trust, of personal property, filed in the recorder’s office, under'the provisions of the Act of the tenth of March, 1877, (Acts of 1877, p. 80), is a recorded lien within meaning and intention of the Act under which appellant Avas indicted, though, by the terms of the Lien Act, such conveyance is never to be actually recorded.

The Act provides that the mortgage, or trust deed, shall •be a lien on the property therein described, from the time of the filing, and the same shall be kept there for the inspection of all persons interested, and said instrument shall be, thenceforth, notice to all the ivorld of the contents thereof, without further record, except as hereinafter provided. Sec. 1.

The fourth section requires the recorder to keep a book, in Avliicli shall be entered a minute of mortgages and trust deeds of personal property, etc,, ruled in separate columns, and showing the time of reception, names of mortgagor and mortgagee, date of instrument, amount secured, Avhen due, description of property, etc.

This minute book is, by the act, substituted for full registration, when the mortgagee indorses on the deed, “This-instrument to be filed, but not recorded.” ' '

Why should the maker of a mortgage, or trust deed, go-unpunished for Avrongfully removing property from thecountAr Avhere the instrument is made matter of public, record in the mode prescribed by the statute, and is a lien upon the property, and notice to all the world? Or why permit him to remove it from the State, or secrete it, or sell, barter, exchange, or otherwise ’dispose of. it, in fraud of the rights of creditors secured by it, and yet be guilty of no crime? • In view of justice, there can be no difference between his wrongful conduct and that of one who removes or disposes of property covered by a deed spread at length on a record book in the recorder’s office ; and the Legislature intended no such distinction in the criminal Acts.

The demurrer was to the whole of the indictment, arid if any one of the three counts was good, it was properly overruled.

The first count, for removing the horse, embraced in the trust deed, beyond the limits of Lawrence county ; and the second count, for secreting the horse, was good. .

2. indict-disposal. The third count charged that appellant “feloniously did barter, or otherwise dispose of ” the horse.

There are several modes by which the offense intended to be punished by the Statute may be committed, as by removing the property beyond the limits of the State, or of the county, or to secrete it, or, in the language of the act, to “sell, barter, or exchange, or otherwise dispose of any such property,” etc.

A sale is an exchange of goods or property for money paid or to be paid. Barter and exchange are of about the same meaning. Barter — the exchange of one commodity of article of property for another. Exchange of goods — a commutation, transmutation, or transfer of goods for other goods, as distinguished from sale, which is a transfer of goods for money. Burrill Law Die.

A count charging the sale of the property would be good.

So a count charging a barter or exchange of the property, or using either word, or both in the conjunctive, would be good. 1 Bishop on Crim. Pro., secs. 585 to 592.

But the third count in the indictment, charging that appellant did “sell, barter or otherwise dispose of” the horse, was too uncertain in an indictment for felony, and had there been a separate demurrer to this count, it should have been ■sustained.

In drafting an indictment, under the Statute, if there is uncertainty about the mode in which the offense may have been committed, counts may be added, charging it in different modes.

i. verdict; on several ‘when. II. The verdict was general upon the indictment. Where ■there is a general verdict of guilty on an indictment o o j sisting of several counts, if any one of them is good, it sufficient. Brown v. State, 10 Ark., 607. But the good count must be sustained by evidence. State v. Mathis, 3 Ark., 84.

It appears from the • bill of exceptions that on the trial there was no evidence that the appellant removed the horse ■embraced in the deed of trust (which, with its certificate of •acknowledgment and endorsement of filing by the recorder, was read in evidence) beyond the limits of Lawrence county, as charged in the first count of the indictment.

Nor was there any evidence that he secreted the horse, as charged.in the second count.-

There was evidence conducing to prove that in the spring, or early in the summer of 1881, appellant sold or traded the horse to one Gentry, wflo lived near him, in Lawrence county, and that he disposed of the horse to another person, •and it was taken to Randolph county.

Appellant admitted that he knew he was doing wrong when he.sold or traded the horse.

But all this evidence related to the third count in the indictment, which charged that he “feloniously did sell, barter, or otherwise dispose of” the horse.

The appellant objected to so much of the first instruction given by the court to the jury as charged them “that if they found, from the evidence, that defendant secreted, or sold, or bartered, or otherwise disposed of said sorrel horse, they should find him guilty,” on the ground that it was too-general and misleading — “that he could not .ell what the otherwise was.”

This objection, though overruled by the court, was well taken. It would be unsafe to permit an accused to be convicted in a case involving liberty on a charge so loóse and uncertain.

iñEemo°rtf property Soned0 by g i 7 i H §' other perty. III. Appellant asked the court to charge the jury that:— “H tke ÍU1T hnd, from the evidence, that E. Krone & Co. agreed with the defendant that thejr would accept another in place of said sorrel horse, and that said E- Krone& Co. took possession of said other horse, this was a satisfaction of the lien of said Krone &-Co. on said sorrel horse, and they will find for .the defendant.”

This instruction was refused by the court, and properly. There was evidence that appellant first represented to the-beneficiaries in the trust deed that the sorrel horse had died, but that after they ascertained that this was not the truth— that he had sold or traded the horse to Gentry — and had him arrested, he delivered to the trustee another horse, which he sold, and credited the price on the trust debt.

It was well for the appellant thus to satisfy his creditors, but this was no condonation of his offense against the public.

But for the errors above indicated the judgment must be reversed, and the cause remanded to the court below for a new trial; or appellant may be held to answer, a new indictment, at the election of the prosecuting attorney.