Atwell v. State , 63 Ala. 61 ( 1879 )

MANNING, J.

By the statute “ to amend section 3705 (159) of the Revised Code,” approved February 13th, 1875, it was enacted, 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; or if any person or persons buy, receive, or conceal any such property, with such knowledge of the existence of any such claim, with like intent; upon conviction thereof, he "or they shall be punished as though he or they had stolen the same.”

Appellant was found guilty as charged in a count of the indictment, which alleged that he “ did remove, conceal, or sell one yoke of oxen, personal property, for the purpose of hindering, delaying, or defrauding Calvin 0. Colquitt, who had a claim thereto under a written mortgage, with a knowledge of the existence of such mortgage; against the peace and dignity of the State.” The indictment was returned by the grand jury before the Code of 1876, in which the statute quoted was, with some alteration of the language, embodied, became the law of the State. And the accusation is made in the terms of the act, and in accordance with the form prescribed in the Revised Code of 1867, for the like offense denounced in section 3707 of that Code. In the Code of 1876, the form of the indictment is somewhat changed. The court did not err in overruling the motion in arrest of judgment. Nixon v. The State, 55 Ala. 120; Glenn v. The State, 60 Ala. 104.

2. To say in an indictment, entitled in the commencement The State of Alabama, that the offense it charged was committed “ against the peace and dignity of the State,” is equivalent to saying “ against the peace and dignity of the State of Alabama.”

3. What the defendant said when he was negotiating a sale of the oxen, in regard to the permission to do so received from the mortgagor, was not admissible. If it were, any person, while intending to violate the law, might, in the act of doing so, make evidence by his declarations for his own defense. — Nixon v. The State, supra.

4 Nor did the circuit judge err in refusing to allow Deloach to testify what he had heard Calvin C. Colquitt, the mortgagee of the oxen, say of Alfred Colquitt having charge of his business. Calvin Colquitt had himself been upon the stand as a witness, and was not interrogated about any such declaration. When a person, competent to testify, is present, and examined as a witness in a causé, his statement of what he has said, of any matter involved in it, must be heard, before a third person can be permitted to prove what he said. And, generally, his attention must be called to the time, place, and presence, when and in which the declarations to be proved are supposed to have been made.

5. But, was not defendant entitled to show that Alfred Colquitt, who took from him the mortgage to Calvin C. Colquitt, for advances to make a crop with, was openly acting, during the year 1875, as the apparent general agent of the latter between him and his customers ? Alfred Colquitt had testified, that he was the clerk of Calvin C., “ and was in charge of his business of merchandizing in Bullock, Crenshaw county, and as such clerk filled out the said mortgage,” &c.; and that in the fall of 1875 (the mortgage debt being payable the 1st of October in that year), “ he met defendant in the road, near Smithville,” and was told by him that “ he wanted to sell said oxen to them, to pay the mortgage, as he would not be able to pay it,” except by a sale of property. To which said Alfred answered, “that they did not want them [the oxen], and had no use for them. Defendant then stated that he would sell them to some one else ; to which witness [Alfred Colquitt] replied, that he supposed it would be all right, if they got their money.” Another witness, who was present, testified, that defendant told Alfred Colquitt he wanted to sell the oxen, because he could get more for them than Colquitt could by selling under the mortgage. It was after this that defendant took the oxen into another county, and negotiated for a sale of them there ; and Alfred Colquitt, following after, brought them back, and sold them under the mortgage at Bullock. Alfred Colquitt testified, at the trial of this cause, that he had no authority from Calvin C., to give permission to defendant to sell the oxen.

Now, unless defendant removed the oxen, or concealed or sold them, “ for the purpose of hindering, delaying, or defrauding Calvin 0. Colquitt/’ he was not guilty of the offense he was charged with. The mortgage covered other property besides the oxen, to-wit, a cow and calf, a mare eleven years old, “ five head ” of other cattle, and forty acres of land; which latter defendant returned to, and lived on, after he had removed and sold the oxen. And if it was to save this property, or some of it, by paying the mortgage debt, Wholly or in part, by the proceeds of the sale of the oxen, that he took them into another county to sell them, he ought to have been allowed to shoW that Alfred Colquitt was so apparently the general agent of Calvin C., that he, defendant, might in good faith suppose that, in all that the former did and said about the mortgage debt and property, and in all that was said to him about it, Alfred Colquitt represented and acted for Calvin C. Colquitt. The former used the plural number as if speaking for Calvin C., as well as himself.

“ Defendant proved by several witnesses, that his general character for honesty was good in his neighborhood.”. Tet the jury may have supposed that, because Alfred Colquitt testified that he had no authority from Calvin C., to give permission to defendant to sell the oxen, defendant must be guilty, for having undertaken to do so. But, if the removal of the oxen out of the county was not made by the defendant for the purpose of hindering, delaying, or defrauding Calvin 0. Colquitt, but to enable defendant to raise money to by or partially pay the mortgage debt, and he had just reasons for believing, and did believe, he had the consent of his mortgagee, through Alfred Colquitt, to dispose of them for that purpose, he should not be found guilty under the indictment in this cause. The evidence excluded’ was relevant, and may have been useful in establishing this defense.

Let the judgment be reversed, and the cause remanded.