Cobb v. State , 100 Ala. 19 ( 1893 )

STONE, C. J.

Section 3835 of the Code makes it a felony to remove or sell, any personal property known to be under certain specified liens, “for the purpose of hindering, delaying or defrauding any person who has a claim thereto.”

Section 3836 makes it a misdemeanor in any one to sell or convey “personal property upon which he has given a written mortgage, lien, or deed of trust, and which is then unsatisfied in whole or in part, without first obtaining the consent of the lawful holder thereof to such sale or conveyance.”

To constitute a violation of the first of these sections it is necessary that the removal or sale shall be effected with the intent to delay, hinder or defraud some person who has a claim thereto. A person found guilty under this section must “be punished as if he had stolen the same.” The intent with which the sale or conveyance is made, the other conditions being shown, is not an essential inquiry in a prosecution under section 3836. The enumerated acts, without more, constitute the misdemeanor.

It is obvious that the ingredient which magnifies the offense into a felony, as declared in section 3835, is the fraudulent intent. That is, the intent to defraud the mortgagee or lienee, in the matter of the lien secured to him by the mortgage, or other specified lien. To make good the averment of such fraudulent intent, the tendency of the removal or sale must be to impair the available value of the security, or to obstruct, delay, or hinder its enforcement. Less than this can not delay, hinder, or defraud, and, consequently, does not furnish evidence of such intent. We can conceive of cases of sale or removal which could have no tendency to impair the available value of the security, or to obstruct, delay, or hinder its enforcement. One case of harmless sale would be presented, if the purpose and effect were to pay off and discharge the lien or incumbrance ; or, if such incumbrance were otherwise paid off. So, a removal which did not obstruct, delay, or hinder the enforcement of the lien, would furnish no evidence of an intent to defraud. There may be other cases, which would not fall within the punitive provisions of the statute.

The statute declares that a person violating its provisions, must “be punished as if he had stolen the same.” This simply declares the punishment. It does not make the crime larceny, nor impart to it all the properties of that crime. Charge No. 1 asked by defendant would have been appropriate if the indictment had been for larceny.—Rountree v. State, 58 Ala. 380; McMullen v. State, 53 Ala. 531. It was not, however, adapted to this case. We will add, if the mortgaged goods were sold or traded in the neighborlio.od, and were afterwards openly owned and kept in the neighborhood, and there was no attempt to put them beyond the reach of the mortgagee, or to hinder him in the enforcement of his lien, this was a circumstance the jury should consider in determining whether the defendant had “the purpose of hindering, delaying, or defrauding” the mortgagee.

While McIntosh, the prosecuting witness, was on the stand, he was asked by defendant if he did not cut logs and timber from defendant’s lands, and he answered “I did. I got 85 or 100 logs at 1 cent per foot.” The bill of exceptions then proceeds, “Here the State by its solicitor objected to this question and answer of defendant, and moved to exclude the same from the jury. Which motion, upon it being made to appear to the court that the logs were cut under a written contract which the defendant executed in 1888, the court sustained, and excluded this answer of the witness from the jury.” There was an exception to this ruling.

It will be perceived that the objection to this testimony was, that the logs were cut under a written contract executed in 1888. This objection was not well taken. The real inquiry was, whether McIntosh owed the defendant anything on account of the logs. If he did, or if ■ the circumstances were such as to create in the mind of the defendant the belief that there was such indebtedness, this was a circumstance the jury should have been allowed to consider, in determining whether the sale, or sales were made “for the purpose of hindering, delaying, or defrauding” McIntosh. Coming up, as the question did, collaterally, the rule which requires the production of the highest and best evidence does not apply. Any legal evidence bearing on the inquiry of fraudulent intent was admissible.—Alsabrook v. State, 52 Ala. 21; Mattison v. State, 55 Ala. 224; Johnson v. State, 73 Ala. 523; Black v. State, 83 Ala. 81.

Reversed and remanded.