Mooney v. State , 25 Tex. Ct. App. 31 ( 1888 )

White, Presiding Judge.

Error in this case is confessed by the Assistant Attorney General in behalf of the State. The prosecution was based upon article 797 of the Penal Code as amended by act of March 31, 1885. (Willson’s Texas Crim. Stats., section 1395, part 1.) This article of the Code reads: “If any person has given or shall hereafter give any mortgage, deed of trust or other lien in writing upon any personal or movable property, or growing crop of farm produce, * * * and shall sell or otherwise dispose of the same with intent to defraud the person having such lien either originally or by transfer, he shall be punished,” etc.

The offense consists in fraudulently disposing of any personal or movable property, or growing crop of farm produce, .’which. has been mortgaged. If it be conceded that the indictment sufficiently sets forth the statutory offense, still the evidence does not support the allegations as to a growing crop, because the mortgage was executed upon the fifteenth day of January, 1887, and was to become a lien upon a crop not then growing, and not even planted. It was a mortgage upon something not then in esse. But the property is described in the indictment as “all crops raised by him the said Mooney, -during the year 1887, said crops consisting of sixteen acres of cotton and five acres of corn, which said crops are to he grown by the said Mooney on the plantation of Sam McVea,” etc.

We are of opinion the indictment itself is defective, and that the motion to quash should have been sustained. Where the mortgaged crop is one in anticipation only—not planted and not in existence when the mortgage is executed, we think, in order to bring the offense within the statute, it should be alleged substantially that the accused executed a mortgage upon a crop to be planted—that the same was afterwards planted by him, that when the same was planted and was growing or grown the said mortgage attached to and became a lien upon the same; and that the accused fraudulently disposed of the same, etc. (1 Texas Ct. App., Civ. Cas., sections 594, 595; Devereaux v. The State, 41 Texas, 383.) Other requisites for such an indictment are given in No. 519 of Willson’s Criminal Forms.

Because the indictment is insufficient in its allegations, the judgment is reversed and the prosecution thereunder is dismissed. Reversed and dismissed.