Medley v. State

SAMFORD, J. The defendant was charged under section 5004 of the Code of 1923 with selling personal property upon which he had given a lien, without first obtaining the consent of the lien holder. Some objections were made to the secondary proof of the mortgage covering the property in question. Proof was made that defendant had signed a mortgage covering the bale of cotton sold, and that the mortgage had been delivered to defendant and was not at the time of trial in the possession or under the control of the mortgagee. A copy of the record of the mortgage from the record book of mortgages in the probate office of Barbour county, duly certified, was then admitted in evidence. Whatever questions of merit may have arisen by and on account of the rulings of the trial court regarding the introduction of this copy were rendered of no avail by the admissions of the defendant, while testifying as a witness, that he did sign a mortgage payable to the mortgagee and in the presence' of the witness whose name appears to be signed as such to the mortgage offered in evidence. It is also admitted by the defendant in ' his testimony that he sold a bale of cotton raised on his farm to Mr. Burch, without having first obtained the consent of the mortgagee. It is the contention of the defendant that at the time of the sale of the bale of cotton to Burch he had paid the full amount due on the mortgage. There seems to be no doubt that the mortgage is now paid, but whether it was paid at the time of the sale of the bale of cotton was a question of fact for the jury. A subsequent payment of the mortgage debt after an illegal sale- of mortgaged property by the mortgagor does not purge the illegal act of its criminality and is no defense to a criminal prosecution. Steed v. Knowles, 79 Ala. 446. This was a question [36] for the jury and was fully and fairly submitted to them by the trial judge. We find no error of a prejudicial nature, and the judgment is affirmed. Affirmed.