#### McClaskey v. State.

Opinion delivered March 23, 1925.

1. MORTGAGES — DISPOSING OF MORTGAGED CHATTELS — ÑECESSITY <>F Demand. — It is not necefesary, under' Crawford &' MoseS’ Dig. § 2552, to sustain a conviction of a ‘mortgagor for disposing of mortgaged chattels, that demand should have been made on hitti for the debt or' the mortgaged property or that hé refuse payment of the debt.

2. Mortgages — disposing of mortgaged chattels — concealment. —In a prosecution for disposing of, a mortgaged automobile, where it was proved tljat the mortgagor had placed the,,car in a garage, and told the mortgagee that he could not find it, it was not error to refuse to exclude testimony in regard to the oar, since, if the mortgagdr concealed the car so that it could not be found for the purpose of foreclosing the. mortgage, this would constitute a disposition of same, within the moaning of Crawford & Moses’ Dig., § 2553.

3. Mortgages — disposing, of mortgaged chattels — variance in description.' — In a prosecution, under Cráwford & Moses’ Dig., § 2552, for disposing of a mortgaged wagon and an automobile where the indictment described the. wagon as “one 3-inch Bane ., log wagon,’’ whereas . the , mortgaged wagon was ■ properly described, as a “3 1-4 inch Bane log wagon,” held,, there. .was no fatal, variance. . .

4. " Mortgages — disposing of mortgaged chattels — indictment.— ! An indictment for disposing of 'mortgaged property in violation of Ctawford & Modes’ Dig., •§ 2552, need not allege the name-Of ' the person to. whom’ the. property was sold or that the purchaser was unknown.,. ; :. . ; :

,5. , Mortgages, — disposing of mortgaged chattels^-inpictment.— Án indictment for disposing of mortgaged property held sufficient to charge that there was a debt due to the mortgagee,'and ■that disposition was made' With Monidus intent to defeat the ■ holder ."Qf .the mortgage ini the collection of’his debt.

6. Mortgages — disposing of .mortgaged chattels-t-indictment.— An indictment fop disposing of mortgaged, property need not allege that' the mortgage hád been recorded. or filed, as. the mortgage'is‘good Us between mortgagor and mortgagee whether ■acknowledged or not.

7. . .Mortgages —• disposing .of .mortgaged chattels — evidence,— In a prosecution for disposing of a mortgaged wagon and automobile, though certain mules embraced in the. mortgage Were hot mentioned in the indictment, testimony in regard to thíéir disposition Was relevant on' the question of'the mortgagor’s ■ good faitlt in disposing of’the wagon and autdmobiie. ■ ' -

*3408. Criminal law — repetition of ' instructions. — Refusal to give requested instructions which were fully covered by those given by the court was not error. :

9. Criminal law — argument of,, prosecuting;, attorney. — jr-In >a prosecution .under'Crawford &, Moses’ Dig.,. §. 2552, for disposing of a mortgaged wagon and.automobile, argument of the ..prosecuting attorney that the mortgagor had misled the.mortgagee in giving the mortgage, and “he is a.s guilty .as man can be and he ought to be convicted,” was a mere-.expression as to defendant’s guilt, and was not improper.

Appeal from Craighead Circuit Court, Jonesboro District; Basil Baker, Special Judge;

affirmed.

Boy Stigler and T. A. Burner, for,.appellant

•H. W. Applegate, Attorney General, and Barden Moose, for appellee.

Smith, J.

-Appellant was indicted- for disposing of

certain personal ¡property upon’ which ‘a mortgage lien existed.. Omitting the formal parts, the indictment reads as follows: “The said Otto McClaskey aforesaid, on the first day of January, 1924, did unlawfully, knowingly, and feloniously sell, barter, exchange and dispose of one 3" Bane log-wagons of the value of $150 and one Oakland automobile of the value of $150, all of the total" value of $300, upon which log-wagon and Oakland .automobile one J. W. McCormack.had a chattel mortgage -to secure -the payment of $82.90 due him by the .said Otto McClas-key, with the felonious intent to defeat the holder-of said mortgage in the collection of the .said debt seCuried by such mortgage.” .' - •

The indictment was demurred to on the -ground that it did not charge a pliblic offense. • The demurrer was overruled, and an exception was saved to that ruling.'

' The testimony on the, part of the State was to the effect that the debt matured .and was, not paid, .upon demand, and that neither the wagon nor the- -automobile was available for-the purpose of foreclosing' the Mortgage. . ' ' -

■In the case of Stewart'v. State, 139 Ark, 403,. it was held that the statute under which appellant was indicted and convicted (§ 2552, C. & M. Digest) did'not require, *341as a condition for conviotion for disposing of mortgaged property, that a demand 'be made on the mortgagor for the ddbt or mortgaged property or the refusal of payment of the indebtedness on the mortgagor’s -pari It is insisted that the undisputed testimony shows-that appellant did not dispose of the automobile, and that reversible error was committed in not excluding from the. jury any consideration of the disposition of the automobile. ....

The testimony shows that appellant, had .plaped-, the automobile in a garage at Nettleton, which is in the. disr tr,ict of the county in which the venue of .the offense is laid, for storage and repairs. This garage was operated by a man named Edwards,, and he testified that the automobile had been in his-garage since the summer of 1924 (the trial occurred November 22, 1924), and..that his charges for repairs amounting to $30 had not. been paid. But it does not appear that, McCormack, the mortgagee, was advised of the location of the automobile -until that fact was developed at the trial. On the contrary, McCormack testified that appellant told him the .wagon had been stolen, and that the automobile was somewhere in the county, but the witness was unable to find either. Under these facts, we think.no error was committed in not excluding the testimony in regard to the automobile.

The mortgage has been .executed at Bono, , which Was also in the district of the county in which' the .venue of the offense was laid, and both the wagon and! the automobile had been removed from that neighborhood^' and McCormack testified that he could find neither:' If appellant had in fact concealed the automobile so that it could not be- found for the purpose of foreclosing the - mortgage, this would constitute a- disposition of it within the meaning of the statute: • : - :

Appellant had been engaged in sawmilling,- and owned several wagons. It was admitted that lie hád sold a wagon to a man named Hannah, and- this: 'wagon was present at the trial and was visible to the 'witnesses while testifiying'in the case. It will be observed that *342the indictment described the wagon as “one 3." Bane log-wagon,” and the wagon sold Hannah was a 3%". Bane log-wagon. : Appellant testified that he owned a 3" Bane log-wagon, but he testified that this wagon had been stolen from him, and that the wagon sold Hannah was not the wagon covered by the mortgage;

'' McCormack testified, however, that the wagon mortgaged was pointed out to him, that appellant walked np to the wagon, shook it, and said it was the wagon to be mortgaged, and the witnesses idéntified the wagon produced at the trial and which appellant admitted, he had sold Hannah'as the wagon pointed out to him by'appellant.

The size 3" has relation to the spindle, and a 314" wagon was one whose spindle’was 314 inches, and consequently a slightly larger' wag-on' than one whose spindle was 3 inches in size. The whgon sold Hannah by appellant was a Bañe log-wagon, but its spindle was 314") and it' is insisted that this difference makes a .fatal variance in the description of the property alleged to have been mortgaged and disposed of.'

Appellant asked an instruction to the effect that this difference was material and constituted a fatal variance,; but the court refused to. so instruct the jury, and treated .this difference as immaterial, provided the jury.found that appellant had in fact disposed of the wagon mortgaged with the fraudulent intent of defeating -the mortgage lien. ’ 1

W.e think no error was committed. in this respect. The^ wagon- mortgaged was, a Bane log-wagon, and the one sold-Hannah was a Bane log-wagon, and we think the ■ difference between 3 inches and-314 inches in the size of the spindle did not constitute a fatal variance. The party who drew the mortgage, testified that the description employed was furnished by appellant himself, and McCormack testified . that the wagon described in the mortgage- was the- one which appellant had pointed out to him.

*343The; defendant conld not have 'been misled in the preparation of his defense, and the State conld not have prosecuted him again had he been acquitted, because-of this difference in description.

The rule in such cases is stated in Underhill’s Criminal Evidence (3d ed.), § 80, as follows': “In deterbairiing whether a variance is material, the question to be decided is, does the indictment so far fully' and correctly inform the defendant of the criminal act with- which he is charged' that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of 'being twice put in jeopardy -for the same offense? If this be not -so, then the variance is material, and, the State having -failed to prove the crime in substance as it is alleged, the acquittal of the accused should be directed.

. In the case of Pritchett v. State, 160 Ark. 233, the défendaht was charged with the crime of arson, alleged to have been committed by burning a railroad bridge designated as bridge 7807, when, according to tbe proof, the bridge burned was designated by the railroad as No. 7807. The indictment had further described the bridge as one'owned by the railroad company and as being three miles'northeast of Eureka Springs, and we held" the variance'was not of sufficient substance in its nature to prove fatal.

IJpon the authority of the casé of State v. Harberson, 43 Ark. 378, it is insisted.that the indictment is defective because: (I) it does not allege to whom the sale was; made^or that.the vendee was unknown; (2) it. does not allege that the debt was unpaid; (3) it does not. allege that the inprtgage was acknowledged, and it therefore' does.not appear that the instrument was one which could be recorded; and (4), it does not allege the venue of the existing .lien.

■The statute construed in the Harberson case has been, a-ihended- since the date, of that decision, .and tbe existing 'statute- has been construed in later- cases, •

*344In the cáse of State v. Crawford, 64 Ark. 194, it was hélddhat it was not necessary to allege the name of the per,son'.to 'Whom the property was sold; consequently it was unnecessary to allege that the vendee was unknown.

We;',think.;it i;s- sufficiently charged that there was a debt due-the mortgagee at the time the property was disposed of, and that the disposition was made with the felonious, intent .of defeating the holder of the mortgage in .the collection .of his debt.

The .indictment does not allege that the mortgage was acknowledged, and it would not therefore have been entitled .to- be placed of record, but it was held in the case of State v. Barnett, 65 Ark. 80, that it was not necessary for an indictment to allege that the mortgage had been recorded or filed, as. it was the manifest intent Of the statute to prohibit the mortgagor frqm removing the mortgaged property out of the county whether the mortgage was of record or not. Moreover, the mortgage, was good as between the mortgagor and the mort-. gagee, whether’it was acknowledged or not.

t);-We think the venue was sufficiently charged and proved.

. The court refused to give any of the instructions requested by appellant, but, on its own motion, gave an elaborate, charge consisting of bine instructions, the third of which reads as follows: “3d. Now therefore, if you find beyond a reasonable doubt that the defendant, Otto M'cClaskey, did, in the Jonesboro District of‘Craig-head County, Arkansas, on the 1st day of January, 1924, or within three years prior to the filing of the bill of indictment in court,.April 15, 19'24, unlawfully, knowingly, and feloniously sell, barter, exchange and dispose ot óñe Bane log-wagon or one Oakland automobile, either one or the other, and that such property so sold, bartered, exchanged and disposed of was of the fair market value in excess of the sum of ten dollars, and that such sale, barter,' exchange or disposition thereof when made was of the property that had previously beexi mortgagéd'tó J. iW. McCormack, and without his con*345sent thereto, and that there, was an indebtedness' in excess of ten dollars dne or owing said McCormack secured by said mortgage covering such property.- .as alleged in the indictment to have been 'Sold;-/bartered, exchanged or-disposed .of,: and that-such sale,-barter, exchange or dispositon of said-property, if any was made, was made with the felonious intent to defeat the-holder pf said mortgage, J. W. McCormack, bn -the collection of said debt, if there was a debt, secured by said mortgage as covering said property, if you find’that there was such mortgage, then you will- find- the. defendant guilty as charged in the indictment.” :i .: .

We think this instruction correctly submitted the material issues in the ease. - , ... ..,-b

: The- defendant requested the; court to instruct the .jury not to consider any testimony with reference, to any other property not- described in the. indictment, purpose of this instruction — which the court uefused fp give — was to exclude the testimony of - appellant, himself, elicited on his cross-examination, in regard to -Certain mules which were embraced in the/mortgage. Appellant had testified that these mules had died, and this, of course, was not a disposition of the mortgaged property within the meaning of the statute. 'But ‘ we' think the testimony was material and relevant as bearing on the good faith of appellant in disposing of the. .property described in the indictment. Neither -the-wagon-nor the automobile which were described- bn the indictment was available for the purpose of foreclosing the' mortgage, and, while the mules were n:ot mentioned’ in the indictment as’ having -been fraudulently disposed of, the testimony, in regard to-their disposition was releyant on the question of appellant’s good,faith in disposing of the wagon and the automobile. ' ■ • :

Appellant asked an instruction to ; the effect that the jury must find beyond a reasonable ’doubt that he disposed of the wagon with the fraudulent inteht’of'defeat-ing the mortgage lien; and this instruction might,well have been given in the language-in which, he asked it, *346but this declaration of law was fully covered in instruction numbered 3, set out above, and in the'other instructions given, so there was no prejudicial error in refusing to multiply instructions on this point. •

■ Other instructions asked- by appellant, in so far as they correctly declared the’ law, were covered 'by the instructions given. ''

In his concluding argument the prosecuting attorney said: “I want to say to you that he (appellant) misled the old'man (McCormack, the mortgagee) in giving that mortgage, and he is as guilty as a man can be, and he ought to be convicted. ”

It does not appear from this excerpt just what point the prosecuting attorney was arguing, but it does not appear 'that the argument was improper. It was a -mere expression of the attorney’s opinion as to the appellant’s guilt, and we have frequently held that such arguments are not improper. Spier v. State, 157 Ark. 283.

■ As we find no prejudicial error, the judgment is affirmed.