Hardeman v. State , 1884 Tex. Crim. App. LEXIS 57 ( 1884 )

Willson, Judge.

In substance the indictment charges that the defendant, on the third day of June, 1882, executed to J. E. Wilson a valid mortgage lien, in writing, upon “eighteen acres of cotton, then and there being movable property,” “ and that he thereafter, on the first day of October, 1882, sold said cotton to divers persons with intent to defraud said Wilson,” etc.

T'o constitute the offense attempted to be charged in this indictment, the property upon which the lien was given must have been “personal or movable property” at the time such lien was executed. (Penal Code, Art. 797.) It is no offense against the law of this State to sell or otherwise dispose of real property upon which the owner has given a written lien.

Before proceeding further we should determine what meaning should be given to the words “eighteen acres of cotton,” used in the indictment in describing the property mortgaged. We think that but one reasonable signification can be placed upon them, and that is that the property consisted of a cotton crop growing upon eighteen acres of land. This would be the ordinary signification of the words, and they must be thus understood. (Rev. Stats., Art. 3138; Penal Code, Art. 10.)

What character of property is a crop of growing cotton, considered with reference to the offense of which defendant stands convicted? Is it “movable property” within the meaning of Article 797 of the Penal Code? If not, then it is unnecessary to consider this case further, because it is to that character of property alone that this indictment applies.

It is true that the indictment alleges that the eighteen acres of cotton were movable property. Such allegation, however, is but a conclusion of the pleader’s and is not sufficient unless the other statements show that it was that kind of property. Thus, suppose the allegation had been that the property consisted in eighteen acres of land, followed by another allegation that the land was movable property; it would not be contended that the latter controlled the former allegation, and that therefore the indictment charged the offense known to the law. The two allegations would be repugnant to and contradictory of each other, and the indictment would unquestionably be bad. But suppose in the case before us the allegation had been that the property consisted in so many pounds of cotton, and that the same was personal property, or was movable property, these allegations would have been consistent with each other, and the latter would have determined the character of the property. In this case the allegation that the property was movable can add nothing to the sufficiency of the indictment, unless the description of the property, “eighteen acres of cotton,” may mean cotton in that state or condition which would render it movable property.

We now recur to the question, is growing cotton movable property, as alleged in the indictment? “Movable” property is such as attends a man’s person wherever he goes, in contradistinction to things immovable. (3 Bouvier’s Law Die., word “Movables”) Thus money, jewelry, clothing, household furniture, boats and carriages are said to follow the person of the ■owner wherever he goes; they need not be enjoyed in any particular place; and hence they are movable. (1 Schouler’s Per. Prop., p. 35.) Certainly a crop of cotton growing upon land .cannot bv any stretch of the rules of construction be brought within this definition of movable property. It is most clearly a thing immovable. It may, however, become movable. Says the author last quoted: 61 Fruits, so long as they are hanging on the trees, the crops until they are gathered, and timber trees while they are standing, are things immovable, or real estate, because they are attached and appendant to the ground. But when the fruits or crops are gathered, or the trees cut down, as they then cease to be attached to the soil, they become movables.” ■ (1 Schouler’s Per. Prop., p. 123.) We think it too plain to be controverted, or to require a further investigation of authorities, that a crop of growing cotton is immovable property, and is not within the meaning of “movable property” as used in the article of the Penal Code under which this conviction was obtained.

But it may be said that the cotton was personal if not movable property, and if so that the offense attempted to be charged could be committed in relation to it. This position is correct. If the property be either personal or movable it is the subject of the offense denounced by the Code. It is to be observed, however, that' this indictment does not allege, or in any manner show, that the property was personal property. It characterizes the same as movable property, and the two words are by no means synonymous in their legal signification, and do not mean the same thing in the Code. There may be personal property which is not movable. Personal property not only includes movable property, but more. It is a more comprehensive word. Thus, crops growing upon land are held to be personal property, so far as not to be considered an interest in land, under the Statute of Frauds. (2 Bouvier’s Law Dic., “ Personal Property,”) So annual crops, if fit for harvest, may acquire the character and incidents of personal property, so far as to be subject to execution as personal chattels. (Horne v. Gambrell, W. and W. Con. Rep., sec. 997.) But it has never been held that an ungathered crop, still appendant to the ground, is, under any circumstances, movable property. Whilst the question as to whether or not cotton growing is personal property within the meaning of the article of the Code referred to, is not presented directly for our determination, we deem it not improper for us to say that in our opinion crops do not become personal property, as a general rule, until they are ready to be harvested. Until that time they are regarded as partaking of the realty. (1 Schouler’s Per. Prop., p. 133, et seq.; Freeman on Executions, sec. 113.) In this case it appears from the indictment that the lien upon the cotton was given in the month of June, at which time the crop could not have been ready for gathering, and it was not, therefore, personal property.

In our opinion the indictment charges no offense against the law of this State, and the court erred in overruling the defendant’s motion in arrest of judgment, based upon its insufficiency; wherefore the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

Opinion delivered April 12, 1884.