Nixon v. State

55 Ala. 120

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

MANNING, J. —

The indictment in this cause was founded on the act of February 13th, 1875, “to amend section 3705 (159) of the Revised Code,” enacting that “ Any person who removes, conceals, or sells any personal property, for the purpose of hindering, delaying, or defrauding any person who has a claim thereto under any written instrument, lien created by law for rent or advances, or any other lawful or valid claim, verbal or written, with a knowledge of the existence thereof,” shall, on conviction, be punished as if he had stolen the same. There was a form prescribed in the Revised Code (p. 812, No. 39) for the offense denounced by section 3705, before the amendment of it as above; according to which form, it was not necessary that there should be any description, or special mention, of the written instrument which the section then required as the basis of the claim that was intended to be protected by provisions in the laws against crimes; and the change made by the statute does not require any change of the form, in this particular. When, therefore, after the words in the indictment, ‘‘ with a knowledge of the existence of said mortgage or lien,” it was added that it was “ executed by him to the said Wilkinson,” &c., this addition was wholly unnecessary. No description of the instrument was required by law, and evidently a precise description was not intended. What was said about it in the indictment might, though, have the effect of restricting the prosecution to evidence of an instrument creating the lien, not at variance with the one described. — 1 Bish. Or. Proc. § 485. But, whether it would or not, the averment in tbis indictment does not prevent tbe introduction of a deed, like tbe one objected to in tbe court below, wbicb was in fact executed by defendant, although by another person also, to Wilkinson. There was no error, therefore, in allowing this instrument to be read in evidence.

2. Nor was tbe indictment bad because it charges in tbe alternative, following tbe words of tbe statute, that defendant “ did sell, remove, or conceal, one bale of cotton.” Tbis form of accusation is expressly authorized by sections 4123 and 4125 of tbe Bevised Code.

3. What defendant said at tbe'time be sold tbe bale of cotton to tbe witness Sims, about tbe reason why be sold it, was properly excluded. He could not be permitted to make evidence for himself in that way. Nor was there any error in refusing to permit tbe defendant, upon a cross-examination of tbe witness Sims, to show that one Stuart, who was then in court as a witness in tbe cause, but bad not been examined, was agent of Wilkinson, and bad, since tbe bale of cotton was disposed of, said that a settlement and satisfaction bad been made by defendant, of the debt for wbicb tbe mortgage was 'given. No predicate bad been laid for an impeachment of Stuart; and defendant could not, by any transaction of bis, after tbe commission of an offense against tbe laws, suspend or prevent their operation. We find no error in the charge of tbe court that was excepted to.

Tbe judgment must be affirmed.