
    DANIELS v. STATE.
    (No. 8977.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.)
    1. Chattel mortgages &wkey;v234 — Denial of special charge that mortgagor was not guilty of disposing of mortgaged goods, although he did not turn over proceeds of sale to. mortgagee, held error.
    In prosecution for disposing of mortgaged property, special charge that mortgagor would not be guilty of disposing of mortgaged property if he sold such property because mortgagee wanted him to sell it, in order to meet notes, although he did not turn over money received from sale to mortgagee, should have been given, in view of previous sales of part of mortgaged property without objection by mortgagee, and in view of evidence that mortgagee had consented to sale.
    2. Chattel mortgages <&wkey;234 — Denial of special charge that mortgagor was not guilty of disposing of mortgaged goods if mottgagee led him to believe that he had right to sell held error.
    In prosecution for disposing of mortgaged animal, special charge that accused would not be guilty, if he was led to believe that he had right to sell animal, because of acquiescence by mortgagee in previous sales of other animals covered by mortgage, and because of application, by mortgagee of proceeds of such sales to debt secured by mortgage, should have been given.
    3.Chattel. mortgages <&wkey;230 — Mortgagor cannot be prosecuted for failure to turn over -proceeds of sale of mortgaged goods to mortgagee.
    Mortgagor cannot be prosecuted for failure to turn over to mortgagee proceeds of sale of mortgaged goods under law forbidding sale of mortgaged property.
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    R. E. Daniels was convicted of disposing of mortgaged property, and be appeals.
    Reversed and remanded.
    Nat Llewellyn, of Marlin, and W. W. Hair, of Temple, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMOKE, J.

Appellant was convicted, in the district court of Falls county, of disposing of mortgaged property, and his punishment fixed at 2 years in the penitentiary.

The facts in this record show rather a peculiar case. We may not exactly comprehend them. Mr. Linthieum said he was president of the First National Bank of Marlin; that in February, 1922, the bank took appellant’s note for $720.75, which included the amount of a loan with the interest added. Witness said that appellant owed the bank a $320 note that was not due. Neither note, if appellant owed two notes to the bank at that time, was introduced in evidence. Only one mortgage was introduced, which seems to have been given by appellant on the 14th of January, 1922, to secure an indebtedness to the First National Bank amounting to $324. If any new mortgage was executed at the time the note for $720.75 was executed, it is not shown by the record. Mr. Linthi-cum testified that on March 13th appellant brought to the bank $75, which he said was from the sale of a cow, and on September 12th $195.55, which he said was from the sale of 18 hogs, on September 14th $42.92 for the sale of 6 calves. Elsewhere in- his testimony he says that appellant sold 2 of the mules for $290, which apparently was turned over to the bank also. He further testified that appellant paid interest on the note in money amounting to $19.75. If appears that each of these sales of property was made, with the possible exception of the mules, by appellant, without referring the matter to the bank, and that after the sale of the property was made the money was brought to the bank and by them accepted, with knowledge of the fact that the property covered by their mortgage had been sold by appellant. No complaint seems to have been made of any of these transactions, nor any objection to such proceedings. It is further in evidence that in the fall of 1922 appellant sold a mule covered by said mortgage for ,$125, and that the next day he came to see Mr. Linthieum and told him that he had been robbed of the money, from the sale of this mule. Appellant and his wife both testified that Mr. Linthieum told them in August, 1922,’ that he wanted appellant to go ahead and sell the stuff and apply the proceeds to the payment of the note. Appellant himself testified to the sale of the mule, and that the money that he obtained from the sale was taken from him that night, and that he had no opportunity to pay it to Mr. Linthieum.

In this condition of the record appellant asked' a special charge instructing the jpry that, if they believed from the evidence that Mr. Linthieum stated to appellant that he wanted him to sell his stock so as to meet his notes, and that thereafter he did sell same, he would not be guilty of disposing of mortgaged property, although he did not in fact thereafter turn all the money so received over to Mr. Linthieum. In view of the unquestioned course of dealing between appellant and Linthieum, and it being admitted without dispute that appellant had repeatedly sold parts of the mortgaged property without objection on the part apparently of the b'ank or its officers, and that they had received the money resulting therefrom, and the further direct testimony of appellant and his wife that they were authorized by Mr. Einthi'cum to sell the property for the purpose of 'meeting the indebtedness, we think the learned trial judge in error in not submitting this charge or its substance to the jury. We find nothing in the main charge covering this point. Cowart v. State, 71 Tex. Cr. R. 116, 158 S. W. 809.

Appellant also asked a special charge instructing the jury that if, from the bank’s acquiescence in his sale of .the cows and 'hogs and calves, mules, etc., covered by the mortgage, and their acceptance of the proceeds resulting from the same, appellant was reasonably led to believe that the bank was willing for him to sell the other stock covered . by the mortgage, and that, after sai'd transactions, he sold another mule described in the indictment, believing that he would have the right to sell it, and that Mr. Linthieum, president of the bank, was willing for him to sell said property, and that, if he sold it so believing, then he would not be guilty of fraudulently disposing of mortgaged property. We believé under the facts of this case that this charge, or the substance thereof, should have been also given to the jury.. Appellant first soldi a cow covered by . the mortgage, and this sale was not objected to but acquiesced in, and the money resulting therefrom accepted by the bank and applied on the note; thereafter appellant sold 18 hogs covered by the mortgage, which sale was not objected to but acquiesced in, and the money accepted by the bank; thereafter appellant sold a number of calves covered by the mortgage, which sale was not objected to but acquiesced in, and the proceeds accepted by the bank. We have no doubt from the facts before us in this case but that, if appellant, after having sold the particular mule, for the sale of which he is here charged, had taken the money received therefor to the bank, they would have accepted it and credited it upon the note, and there would have been no prosecution for the fraudulent disposition of said animal. If our conclusion be true, appellant is here prosecuted, not for the sale of the mule, but for the failure to bring to the bank the proceeds arising from thé sale. This is not the purpose or contemplation of the law which forbids the fraudulent sale of mortgaged property. There appeared to be a number of transactions on the part of appellant which were testified to by various witnesses, the admission of which testimony is complained of in appellant’s brief but does not appear to have been properly objected to, ■ and hence cannot be considered by us.

Believing the learned trial judge fell into error in not giving the charges above discussed, and for such error the judgment must be reversed, and the cause remanded. 
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