
    5315.
    Mathis v. The State.
    Decided January 20, 1914.
    Indictment for misdemeanor; from Walker superior court — Judge Wright. September 6, 1913.
    
      J. E. Rosser, W. M. Henry, for plaintiff in error.
    
      W. H. Ennis, solicitor-general, W. B. Shaw, contra.
   Pottle, J.

On the trial of one charged with the violation of section 714 of the Penal Code, where the accused, in his statement to the jury, claimed that he had been informed that the holder of the lien described in the indictment consented for him to dispose of the property covered by the lien, it was not error to charge the jury as follows: “I charge you that if the defendant, when he sold to the person named in the indictment, Ervin Powell, the mule described therein, falsely and fraudulently represented to the said Powell that there was no lien against the mule, when in fact there was against it the lien described in the indictment, and if the defendant knew that there was such a lien on the mule, the defendant would be guilty, and this would be true even if the owner or controller of said lien had told the defendant that he might sell the mule.” The gist of the offense defined by the section is the false and fraudulent representation that the property sold is not subject to a lien. If the property be in fact subject to a lien, and this is known by the accused, and he falsely and fraudulently represents that there is no lien, and the person to whom the representation is made is thereby defrauded, the accused is guilty even though the holder of the lien might orally have consented for the property to be disposed of.

Judgment affirmed.  