
    McClure v. State.
    
      (Nashville,
    
    December Term, 1938.)
    Opinion filed Feb. 4, 1939.
    
      Sam Holding and Marine W. Bledsoe, both of Columbia, for plaintiff in error.
    W. F. Barry, Jr., Assistant Attorney-General, for the State.
   Mr,. Chiee Justice Green

delivered the opinion of the Court.

The defendant has been convicted of obtaining money under false pretenses, given a sentence of three years in the penitentiary, and has appealed in error to this court.

The facts are not disputed. The defendant did not testify. The evidence shows that in 1935 the defendant sold a black filly to one J. 0. Miller for $100', defendant representing that he had a good title to the animal and that the same was not encumbered. It developed later that defendant had previously executed a chattel mortgage covering this filly and some farm implements to the Columbia Production Credit Association and that this mortgage was of record in tbe register’s office at Columbia.

The defendant being in default on Ms mortgage, tbe Credit Association set about enforcing tbe same and found that tbis animal bad been sold by defendant as above stated. Miller was advised of tbe mortgage on tbe animal, investigated tbe matter, and turned tbe filly over to tbe Credit Association. Tbe Association sold tbe filly for $100', which sum it applied on tbe mortgage debt. Defendant in no way reimbursed Miller, and Miller is out tbe sum of $100 by reason of defendant’s fraud and misrepresentation in assuring that be bad good title to tbe animal involved.

Defendant was heretofore indicted under Code, Sec. 10972, making it an offense to dispose of personal property covered by registered mortgage “with tbe purpose of depriving tbe mortgagee, trustee, or any beneficiary of tbe same, or any part thereof, or of tbe proceeds, or any part thereof” a felony.

Before arraignment on tbis charge, tbe defendant paid to tbe Credit Association, after tbe sale of tbe filly, tbe balance due on said mortgage indebtedness. Section 10975 of tbe Code provides that a person so paying such an indebtedness before be is arraigned for trial shall not be held liable under section 10972.

Notwithstanding that defendant bad paid off tbe debt, be was convicted in tbe former case. Tbe theory of tbe State was that tbis statute was not only intended to protect tbe bolder of a registered mortgage, but also to protect subsequent purchasers and transferees. On appeal tbis court reversed tbe judgment of conviction holding that tbe provisions of Code, Sec. 10972, were intended for the protection of the mortgagee, trustee, or beneficiary only, and tlie mortgagee in the case having been paid off, defendant should have been discharged. McClure v. State, 172 Tenn., 424, 113 S. W. (2d) 63.

Thereafter the indictment in the case before us was returned and the defendant has been convicted of false pretenses under section 10949 of the Code as heretofore stated.

Several assignments of error are made on behalf of the defendant, but as explained in the brief filed for defendant, these assignments raise only three questions. These questions we shall consider separately but not in the order in which counsel discuss them.

One proposition is that the defendant having been previously indicted and tried on the charge of disposing of mortgaged property in the sale of this black filly to the prosecutor herein, and finally discharged in that case, cannot be proceeded against under this indictment charging him with obtaining money under false pretenses in the sale of the same animal to the same prosecutor.

We think this proposition can not be maintained. The defendant has not been put in jeopardy heretofore for the offense of which he is convicted herein. In Dowdy v. State, 158 Tenn., 364, 13 S. W. (2d), 794, decisions of this court on double jeopardy were reviewed and rules deducible from those decisions were set out. Buie No. 4 so formulated was expressed as follows:

“4. But when the same facts constitute two or more offenses wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution would not be a bar to the second, although the offenses were both, committed at the same time and by the same act.”

Neither of these offenses — disposing of mortgaged property or of obtaining money under false pretenses— is necessarily included in the other. The off enses are of equal grade, both subjecting the offender to a minimum punishment of three years and a maximum punishment of ten years. Facts necessary to conviction of one offense do not necessarily sustain a conviction of the other offense. One might dispose of mortgaged property to the hurt of the mortgagee without injury of any kind to the person to whom the property was turned over. Indeed the person acquiring the property from the mortgagor might connive at the fraud upon the mortgagee.

And again, one may obtain the money of another by fraudulently representing as unencumbered property sold to that other without any hurt to the mortgagee, trustee, or beneficiary of a registered mortgage 'covering such property. Defendant did exactly that in the instance before us. The mortgaged animal was not carried away nor concealed, the mortgagee’s lien was not impaired nor his remedies embarrassed, and defendant paid the balance due on the mortgage debt and was acquit in the first case before he was arraigned.

The proposition chiefly argued in behalf of defendant is that the registered mortgage gave to the purchaser of this animal constructive notice of the encumbrance on the animal and relieved the defendant of the charge of obtaining money under false pretenses.

In Cook v. State, 170 Tenn., 245, 94 S. W|. (2d), 386, we noted that in some of our earlier decisions it had been said that where a person might have determined by the use of ordinary prudence that representations made to Mm were false, lie coaid not be heard to say that he was deceived and that a prosecntion for false pretenses conld not be maintained. These earlier cases were disapproved and the court concluded that [page 249] “when all the circumstances evince that the representation was made designedly, with an intent to cheat, and was calculated to deceive and capable of defrauding, the prisoner cannot excuse himself by saying that if the victim had been sharp; vigilant, and astute he could have detected the fraud by using the means of detection available to him. ’ ’

Such is the weight of modern authority. Wharton’s Criminal Law (12 Ed.), secs. 1425, 1455; Bishop on Criminal Law (9 Ed.), Sec. 874 (2); Brill Cyclopedia of Criminal Law, secs. 182, 1257; 11 R. C. L., 834. Applying the rule there stated, a number of courts have held that the constructive notice given by registration of an encumbrance on land or personal property did not relieve a defendant of false representations made to the purchaser concerning the title to such property.

In the case of Thomas v. People, 113 Ill., 531, the defendant was indicted for false representations in connection with the sale of certain real estate made by him. Answering a contention similar to the one here made, the court said:.

“He represented his title to be good, and the property to be clear of incumbrances. By these means he got possession of her goods. He neither owned the lots, nor was able to procure a deed conveying the legal title to them, to her — and this want of title and inability the defendants knew when the pretended trade was made. The only question raised upon the facts, demanding attention, is, whether the negligence of the prosecutrix in not having the records examined in respect of the title, can be urged as a defence. We think it does not lie in the months of these defendants to say, that because, by their artifice, they inspired an unmerited confidence, they are guiltless. The offence is the combination to obtain property by false pretences; and the very object might be, and often is, to so influence the party as to prevent the accuracy of the pretences being tested. Whether one owns property, is a fact. The truth in regard to it might, undoubtedly, be disclosed by the record, but it might equally be disclosed by the declarations of the party; and the most dangerous artifice, and that against which it is most important the law should protect simple-minded and credulous people, is that whereby they are induced to forego all investigation, and trust implicitly to the trickster.”

In the case of State v. Hill, 72 Me., 238, the defendant falsely pretended to be the owner of valuable real estate and that there was no encumbrance on the same. The trial court was asked to instruct that, if the mortgages were recorded, it was notice to the prosecutor and negatived the charge that he was deceived by any representations, if made, that the real estate was free from encumbrance. The Supreme Judicial Court of Main said that the request was properly refused, and added:

“The doctrine of constructive notice does not apply in such cases. The parties were in Portland. The land was in Saco. The records were in Alfred, many miles from Portland. Under these circumstances Mr. Best [the prosecutor] had a right to rely upon the defendant’s statement; and if the statement was wilfully false, and Mr. Best was in fact deceived by it, the falsehood was not deprived of its criminality because Mr. Best, by going to Alfred, and searching the public records, could have ascertained the truth.”

Other cases to the same effect are cited by the text-writers to whom reference is maide above.

Another proposition of defendant is that the State having’ elected to prosecute him to a conclusion on the charge of disposing of mortgaged property is estopped to prosecute this second indictment based upon the same transaction.

Prior to arraignment in the first case, the mortgage having been paid off, the transaction was such that only one prosecution could be had against defendant for his part therein. There were not two offenses between which to elect.

Affirmed.  