Robberson v. State , 3 Tex. Ct. App. 502 ( 1878 )

Winkler, J.

The appellant was indicted under article 773 of the Penal Code (Pasc. Dig., art. 2425), for fraudulently disposing of a certain bale of cotton, alleged to have been mortgaged to one Galen Hodges as security for the payment of $50 due from Robberson to Hodges, with intent to defraud the mortgagee.

The indictment charges that the offense was committed in Matagorda County. This prosecution was commenced, the trial had, and the appellant convicted in Matagorda County. The proof shows that the cotton was removed from Matagorda County and sold in Brazoria County.

On the trial below the defendant requested the court to charge the jury that, if the bale of cotton was sold in Brazoria County, and not in Matagorda County, they must acquit the defendant. This charge was refused, and the defendant took a bill of exceptions to the ruling, and sets it out as one of the grounds in his motion for a new trial, and assigns it as error.

The question here raised is this: Does the proof sustain the charge set out in the indictment?

It will readily be seen, from an examination of the article of the Penal Code under which this prosecution is attempted, that its provisions may be violated in several ways. First, by removing the mortgaged property, or any part thereof, out of the state; second, by selling the mortgaged property; and, third, by otherwise disposing of the mortgaged property, with intent, in either case, to defraud the mortgagee, or person holding such lien, whether as the original party or one to whom it may have been transferred. It is also necessary that the lien upon the property be in force, valid and subsisting, and that the debt to secure which the lien was created had not been paid. Satchell v. The State, 1 Texas Ct. App. 438.

The offense of removing the property would only be complete on its removal out of the state. A charge based on a sale of the property would be supported by proof of such sale, and would involve the question of venue, or where the selling occurred. What would constitute a disposition of the property otherwise than by removal or sale is not clearly defined in the Code; but it is believed that any other placing of the property beyond the reách of the mortgage creditor, and with the fraudulent intent mentioned in the article, would lay the party liable, under its provisions, to indictment. But the two modes — namely, removing or selling — would not be included in the expression otherwise.

This prosecution is not pretended to be based upon a removal of the property beyond the state, but can only be maintained on the clause making it penal to sell the property ; which necessitates the inquiry as to whether, under this clause, the prosecution could be maintained in a county other than the one in which the selling took place.

The Code of Criminal Procedure, chapter 2, part 3, from article 190 to article 208, both inclusive (Pasc. Dig., arts. 2657—2676), prescribes the counties in which offenses may be prosecuted ; by reference to which it will be seen that by the provisions of the several articles of this chapter there are numerous offenses which may be prosecuted in more than one county, and by the concluding article it is provided that, “ in all cases except those enumerated in previous articles of this chapter, the proper county for the prosecution of offenses is that in which the offense is committed.” Pase. Dig., art 2676.

The offense charged in the present case does not come within any of the exceptions mentioned in this chapter of the Code, and must be prosecuted in the county in which the offense was committed.

We have already seen that, if the appellant is guilty of any offense charged in the indictment, it is for selling the mortgaged property. This being the offense made by the indictment and the evidence, we are of the opinion that proof of a sale of mortgaged property in Brazoria County would not support a conviction on a prosecution commenced and had in the county of Matagorda. The court erred in refusing to give the instruction to the jury on this subject; and, for this error, and because there was no sufficient evidence to support the verdict, the court should have granted a new trial.

Other questions are presented in the record which have not been considered, and as to which there is room for controversy; but, as they may not arise on a subsequent trial, we have not deemed it important to consume now the time necessary to a proper understanding of them.

For the reasons above set out the judgment must be reversed and the case remanded.

Reversed and remanded.