Rice v. State

293 S.W. 826, 106 Tex. Crim. 547, 1927 Tex. Crim. App. LEXIS 227

• Court: Court of Criminal Appeals of Texas
• Decided: April 5, 1927
• Docket: No. 10849.
• Status: Published

Opinions

HAWKINS, Judge.

Conviction is for selling mortgaged property, the punishment being two years in the penitentiary.

The indictment alleges that appellant, with intent to defraud S. H. Chapman, sold to W. D. Rivers one “World’s Wonder Gas Engine and Concrete Mixer, two wheelbarrows, six shovels, four picks,” which appellant had theretofore executed a valid mortgage upon to said Chapman. Motion to quash the indictment was based upon the claimed insufficient description of the property. The court only submitted the selling of one “World’s Wonder Gas Engine and Concrete Mixer.” The indictment does not set out the mortgage and no statement of facts is brought to this court, therefore it is impossible for us to know how the property was described in the mortgage. The presumption is that the state introduced the mortgage in evidence and that it was a valid and subsisting mortgage because in the absence of a showing to the contrary every presumption must be indulged in favor of the correctness of the ruling of the trial court. Certainly, in the absence of a statement of facts, this court has no way of ascertaining the contrary. Article 403, Vernon’s C. C. P., 1925, reads as follows:

“When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, is known, shall be sufficient.”

Appellant’s contention seems to be based upon the assumption that the description in the mortgage was the same as that contained in the indictment and if so that it was insufficient to create a lien. He cites the case of Solinsky v. O’Connor, 54 S. W. 935. In that case the mortgage described the property as “2 Ledgerwood Engines,” without giving any number, marks or other means of description. The court held this description insufficient to create a lien as against a judgment creditor of the mortgagor claiming under a writ of garnishment, but the implication seems to be that as between the original parties the mortgage was valid for the reason that parol evidence would be admissible to supply deficiency in description as between the parties.

In the case of Tipps v. Gay, 146 S. W. 306, the property mortgaged was described as follows: “One 3-70 saw, second-hand gin outfit complete, including engine and boiler.” This was held to be a sufficient description, the identity of the property intended to be covered being ascertainable by parol evidence. See also Connally v. Dimmitt County State Bank, 181 S. W. 271; Clark & Boice Lumber Co. v. Commercial National Bank of Jefferson, 200 S. W. 197.

We find some complaint of the charge of the court as being an assumption of facts proven. It is impossible for us to appraise this complaint in the absence of the evidence.

Finding no error in the record the judgment is affirmed.

Affirmed.