{ "id": 8721820, "name": "McClaskey v. State", "name_abbreviation": "McClaskey v. State", "decision_date": "1925-03-23", "docket_number": "", "first_page": "339", "last_page": "346", "citations": [ { "type": "official", "cite": "168 Ark. 339" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "157 Ark. 283", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1357173 ], "opinion_index": 0, "case_paths": [ "/ark/157/0283-01" ] }, { "cite": "65 Ark. 80", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609317 ], "opinion_index": 0, "case_paths": [ "/ark/65/0080-01" ] }, { "cite": "64 Ark. 194", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907397 ], "opinion_index": 0, "case_paths": [ "/ark/64/0194-01" ] }, { "cite": "43 Ark. 378", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894440 ], "opinion_index": 0, "case_paths": [ "/ark/43/0378-01" ] }, { "cite": "160 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720999 ], "opinion_index": 0, "case_paths": [ "/ark/160/0233-01" ] }, { "cite": "139 Ark, 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1596425 ], "opinion_index": 0, "case_paths": [ "/ark/139/0403-01" ] } ], "analysis": { "cardinality": 666, "char_count": 15782, "ocr_confidence": 0.456, "pagerank": { "raw": 1.0815385109656052e-07, "percentile": 0.562625851931908 }, "sha256": "64407394fbe2a4aebf7c6bf16877e89496a70721cb5632880a055df82e0c75b3", "simhash": "1:b4ed9e5578e4c297", "word_count": 2579 }, "last_updated": "2023-07-14T17:11:28.689459+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "McClaskey v. State." ], "opinions": [ { "text": "Smith, J.\n-Appellant was indicted- for disposing of\ncertain personal \u00a1property upon\u2019 which \u2018a mortgage lien existed.. Omitting the formal parts, the indictment reads as follows: \u201cThe 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.\u201d .' - \u2022\nThe indictment was demurred to on the -ground that it did not charge a pliblic offense. \u2022 The demurrer was overruled, and an exception was saved to that ruling.'\n' 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. . ' ' -\n\u25a0In the case of Stewart'v. State, 139 Ark, 403,. it was held that the statute under which appellant was indicted and convicted (\u00a7 2552, C. & M. Digest) did'not require, as 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\u2019s -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. ....\nThe 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.\nThe 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: \u2022 : - :\nAppellant had been engaged in sawmilling,- and owned several wagons. It was admitted that lie h\u00e1d 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 the indictment described the wagon as \u201cone 3.\" Bane log-wagon,\u201d 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;\n'' 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 id\u00e9ntified the wagon produced at the trial and which appellant admitted, he had sold Hannah'as the wagon pointed out to him by'appellant.\nThe size 3\" has relation to the spindle, and a 314\" wagon was one whose spindle\u2019was 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 Ba\u00f1e 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.'\nAppellant 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. \u2019 1\nW.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 \u25a0 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.\nThe; 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.\nThe rule in such cases is stated in Underhill\u2019s Criminal Evidence (3d ed.), \u00a7 80, as follows': \u201cIn 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.\n. In the case of Pritchett v. State, 160 Ark. 233, the d\u00e9fendaht 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.\nIJpon the authority of the cas\u00e9 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.\n\u25a0The 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, \u2022\nIn the c\u00e1se of State v. Crawford, 64 Ark. 194, it was h\u00e9lddhat 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.\nWe;',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.\nThe .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\u2019it was acknowledged or not.\nt);-We think the venue was sufficiently charged and proved.\n. 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: \u201c3d. Now therefore, if you find beyond a reasonable doubt that the defendant, Otto M'cClaskey, did, in the Jonesboro District of\u2018Craig-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 \u00f3\u00f1e 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 mortgag\u00e9d't\u00f3 J. iW. McCormack, and without his consent 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\u2019that there was such mortgage, then you will- find- the. defendant guilty as charged in the indictment.\u201d :i .: .\nWe think this instruction correctly submitted the material issues in the ease. - , ... ..,-b\n: 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 \u2014 which the court uefused fp give \u2014 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 \u2018 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\u2019 in the indictment as\u2019 having -been fraudulently disposed of, the testimony, in regard to-their disposition was releyant on the question of appellant\u2019s good,faith in disposing of the wagon and the automobile. ' \u25a0 \u2022 :\nAppellant asked an instruction to ; the effect that the jury must find beyond a reasonable \u2019doubt that he disposed of the wagon with the fraudulent inteht\u2019of'defeat-ing the mortgage lien; and this instruction might,well have been given in the language-in which, he asked it, but 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. \u2022\n\u25a0 Other instructions asked- by appellant, in so far as they correctly declared the\u2019 law, were covered 'by the instructions given. ''\nIn his concluding argument the prosecuting attorney said: \u201cI 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. \u201d\nIt 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\u2019s opinion as to the appellant\u2019s guilt, and we have frequently held that such arguments are not improper. Spier v. State, 157 Ark. 283.\n\u25a0 As we find no prejudicial error, the judgment is affirmed.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Boy Stigler and T. A. Burner, for,.appellant", "\u2022H. W. Applegate, Attorney General, and Barden Moose, for appellee." ], "corrections": "", "head_matter": "McClaskey v. State.\nOpinion delivered March 23, 1925.\n1. MORTGAGES \u2014 DISPOSING OF MORTGAGED CHATTELS \u2014 \u00d1ECESSITY <>F Demand. \u2014 It is not necefesary, under' Crawford &' MoseS\u2019 Dig. \u00a7 2552, to sustain a conviction of a \u2018mortgagor for disposing of mortgaged chattels, that demand should have been made on hitti for the debt or' the mortgaged property or that h\u00e9 refuse payment of the debt.\n2. Mortgages \u2014 disposing of mortgaged chattels \u2014 concealment. \u2014In 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\u2019 Dig., \u00a7 2553.\n3. Mortgages \u2014 disposing, of mortgaged chattels \u2014 variance in description.' \u2014 In a prosecution, under Cr\u00e1wford & Moses\u2019 Dig., \u00a7 2552, for disposing of a mortgaged wagon and an automobile where the indictment described the. wagon as \u201cone 3-inch Bane ., log wagon,\u2019\u2019 whereas . the , mortgaged wagon was \u25a0 properly described, as a \u201c3 1-4 inch Bane log wagon,\u201d held,, there. .was no fatal, variance. . .\n4. \" Mortgages \u2014 disposing of mortgaged chattels \u2014 indictment.\u2014 ! An indictment for disposing of 'mortgaged property in violation of Ctawford & Modes\u2019 Dig., \u2022\u00a7 2552, need not allege the name-Of ' the person to. whom\u2019 the. property was sold or that the purchaser was unknown.,. ; :. . ; :\n,5. , Mortgages, \u2014 disposing of mortgaged chattels^-inpictment.\u2014 \u00c1n indictment for disposing of mortgaged property held sufficient to charge that there was a debt due to the mortgagee,'and \u25a0that disposition was made' With Monidus intent to defeat the \u25a0 holder .\"Qf .the mortgage ini the collection of\u2019his debt.\n6. Mortgages \u2014 disposing of .mortgaged chattels-t-indictment.\u2014 An indictment fop disposing of mortgaged, property need not allege that' the mortgage h\u00e1d been recorded. or filed, as. the mortgage'is\u2018good Us between mortgagor and mortgagee whether \u25a0acknowledged or not.\n7. . .Mortgages \u2014\u2022 disposing .of .mortgaged chattels \u2014 evidence,\u2014 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 th\u00ed\u00e9ir disposition Was relevant on' the question of'the mortgagor\u2019s \u25a0 good faitlt in disposing of\u2019the wagon and autdmobiie. \u25a0 ' -\n8. Criminal law \u2014 repetition of ' instructions. \u2014 Refusal to give requested instructions which were fully covered by those given by the court was not error. :\n9. Criminal law \u2014 argument of,, prosecuting;, attorney. \u2014 jr-In >a prosecution .under'Crawford &, Moses\u2019 Dig.,. \u00a7. 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 \u201che is a.s guilty .as man can be and he ought to be convicted,\u201d was a mere-.expression as to defendant\u2019s guilt, and was not improper.\nAppeal from Craighead Circuit Court, Jonesboro District; Basil Baker, Special Judge;\naffirmed.\nBoy Stigler and T. A. Burner, for,.appellant\n\u2022H. W. Applegate, Attorney General, and Barden Moose, for appellee." }, "file_name": "0339-01", "first_page_order": 357, "last_page_order": 364 }