State v. Tom Prince

Appellant was tried and convicted in the Circuit Court of Crawford County on an information charging him with selling and disposing of mortgaged property without the written consent of the mortgagee and without informing the purchaser that the property was mortgaged. The jury fixed his punishment at imprisonment in the penitentiary for two years and he was sentenced accordingly. From this sentence he has perfected his appeal, but has filed no brief. The information was drawn under Section 3348, Revised Statutes 1919, which defines the offense charged in the following language: "Every mortgagor or grantor in any chattel mortgage or trust deed of personal property who shall sell, convey or dispose of the property mentioned in said mortgage or trust deed, or any part thereof, without the written consent of the mortgagee or beneficiary, and without informing the person to whom the sameis sold or conveyed that the property is mortgaged or conveyed by such deed of trust. . . . for the purpose of defrauding the mortgagee, . . . *Page 842 shall, if the property be of the value of fifty dollars or more, be deemed guilty of a felony," etc. (Italics ours.) The case made by the State's evidence establishes that appellant gave the Crawford County Bank a chattel mortgage on certain live stock, described in the information, to secure the payment of his promissory note; that he defaulted in the payment of the note; and that he sold one of the steers and a calf, covered by the mortgage, for the sum of fifty dollars, without the consent of the mortgagee. The State concedes that there wasno proof of appellant's failure to inform the purchaser that thestock was mortgaged. Appellant stood on his demurrer to the evidence and the jury found him guilty, as above indicated. I. The information, though not drawn with great care and preciseness, sufficiently pleads the essential elements of the offense sought to be charged, as defined by the statute. It fully advised appellant of the nature and cause of theInformation. accusation against him. The extra burden assumed by the State in pleading immaterial matters was not harmful or prejudicial to him and was properly treated as surplusage. [Sec. 3908, R.S. 1919; State v. McConnell,240 Mo. 269.] II. In the motion for new trial only general complaint is made as to the rulings of the trial court in the admission and exclusion of evidence and in the giving and refusal of instructions. Errors so assigned are not reviewableAssignments. here under Section 4079 as amended by the Act of 1925 and numerous recent decisions of this court. [Laws 1925, p. 198; State v. Standifer, 289 S.W. 856; State v. Murrell, 289 S.W. 859; State v. Vesper, 289 S.W. 862.] III. The verdict is general in form, definite in meaning and responsive to the issue tendered by the information andVerdict. the plea. It is therefore good in form and substance. IV. We come now to the question of the sufficiency of the evidence. The sales of mortgaged property condemned by the statute are those made "without the written consent of the mortgagee or beneficiary, and without informing the person to whom the same is sold or conveyed that the propertyInsufficient is mortgaged." Under the plain and positiveEvidence. provisions of this statute the failure to notify the purchaser that the property is mortgaged is equally as much a constituent element of the offense defined as the failure to get the consent of the mortgagee. As said by the St. Louis Court of Appeals in the case of State v. Munsen, 72 Mo. App. l.c. *Page 843 545, "The statute was enacted as well for the protection of purchasers as mortgagees." And as was said by WAGNER, J., in the early case of State v. Hirsch, 45 Mo. l.c. 430: "The only question is on which side was the burden of proof cast. The general rule is familiar to all: that the burden of proof is on the party holding the affirmative; but to this rule there are some exceptions. Thus, in an indictment for keeping a ferry and ferrying people without a license, or a dram-shop, and selling liquor without license, it is incumbent on the defendant to show that he is licensed. [Wheat v. State, 6 Mo. 455; Schmidt v. State, 14 Mo. 137.] In these cases the acts are in themselves unlawful, and the proof lies peculiarly within the knowledge of the defendants, and is easily producible by them. But in other cases where it requires the application of extrinsic evidence to make out the case, the averment, although negative, should be accompanied with at least prima-facie proof." The application of this rule to the case at bar settles the question now under consideration. It is manifest that the State has failed to discharge its burden of proving every constituent element of the crime charged, and that the evidence is not sufficient to sustain a judgment of conviction. And it follows that the demurrer to the evidence should have been sustained. We are fully supported in this conclusion in the more recent cases of State v. Langley, 248 Mo. l.c. 552, and State v. Garrett, 276 Mo. l.c. 313. See also 2 Chamberlayne's Modern Law of Evidence, sec. 960. The judgment is reversed and the cause remanded. Higbee andDavis, CC., concur.