Beard v. State , 43 Ark. 284 ( 1884 )

Cockbxll, C. J.

i. selling Mortgaged Pr°perty. Appellant was tried and convicted under an indictment in two counts, charging him in one, with selling, and in the other, with bartering, parts of a crop of cotton which he had previously mortgaged. The indictment contained all the averments necessary under the statute to a full description of the offence, and the proof was sufficient to every point. The court instructed the jury fairly and almost in the language of the statute.

The apellant asked two instructions, however, which the court refused. The first was upon the theory that if appellant planted the crop in question as “ a cropper on shares,” he had no interest in it which he could mortgage, and he should he acquitted. This was properly refused.

Interest jeotoXifc By the common law a mortgage of chattels not in esse or thereafter to be acquired by the mortgagor was void. This rule has, however, been practically anulled in and some other States by the incorporation of the principle of the Civil Law on this subject into our equity jurisprudence. Such a mortgage can be recorded with like effect as other chattel mortgages and equity will enforce it without question whenever there is anything for the mortgage to take hold of. Apperson v. Moore 30 Ark., 57; Hendrick v. Britain, 63 Ind., 438.

This was true of a mortgage by a “ cropper on shares’» of his crop prior to the Act of Feb. 11th, 1875. McGee v. Fitzer, 37 Texas, 27; Potts v. Newell, 22 Minn., 561; 1 Wash., R. P., *365. This Act put an end, in this State, to the unseemly conflict between law and equity in respect to mortgages of unplapted or immature crops, by making them good at law as well as in equity. Jarrett v. McDaniel, 34 Ark., 598.

2. ckimim»t. The second instruction was to the effect that the jury find that appellant disposed of the mortgaged property, with the felonious intent of depriving the mortgagee of his debt, before they could find a verdict of guilty.

The legislature a have the unquestioned right, so long as they keep themselves within the pale of the Constitution, to command the performance of such acts as are right, and to prohibit such .as they may conceive to be wrong, and their right is equally indisputable to say whether the intention shall be presumed from the mere act prohibited, or whether in addition to that act the State shall also show the iutent which prompted its commission.” Shover v. State, 10 Ark., 264.

The statute upon which the indictment in this case is based, makes it a crime to dispose of personal property, under particular circumstances. When a party voluntarily does the act prohibited, he is charged with the criminal intent of doing it, and no other or further intent need be shown. Seelig v. State ante 96; U. S. v. Ulrice, 3 Dillon, 532; Com. v. Mash, 7 Met., (Mass.) 472.

It was not error to refuse to instruct the jury as asked.

Affirmed.