
    RICE v. STATE.
    (No. 10849.)
    Court of Criminal Appeals of Texas.
    April 6, 1927.
    Rehearing Denied April 27, 1927.
    1. Criminal law <@=>1144(13) — It must be presumed, where court refused to quash indictment for selling mortgaged property for insufficient description, that. state introduced valid, subsisting mortgage, in absence of statement of facts showing insufficient description therein.
    In absence of statement of facts showing description in mortgage, it must be presumed, in support of court’s refusal to quash indictment for selling mortgaged property on ground that description therein was insufficient, that state introduced mortgage in evidence, and that it was valid and subsisting.
    2. Criminal law <@==>1097(5) — Whether charge assumed facts cannot be determined, in absence of statement of facts.
    In absence of statement of facts, complaint of court’s charge as assuming facts proven cannot be appraised.
    On Motion for Rehearing.
    3. Chattel mortgages <@=>232 — Indictment for selling mortgaged “World’s Wonder gas engine and concrete mixer,” etc., held not bad for insufficient description (Vernon’s Ann. Code Cr. Proc. 1925, art. 403).
    Indictment for selling mortgaged property, described as one “World’s Wonder gas engine and concrete mixer, two wheelbarrows, six shovels, four picks,” held not bad for insufficiency of description, under Vernon’s Ann. Code Cr. Proc. 1925, art. 403.
    Appeal from District Court, Johnson County; Irwin T. Ward, Judge.
    Tom Rice was convicted of selling mortgaged property, and he appeals.
    Affirmed.
    B. Jay Jackson, J. B. Haynes, and F. E. Johnson, all of Cleburne, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, "Asst: State’s Atty., both of Austin, for the State.
   'HAWKINS, J.

Conviction is for selling mortgaged property; the punishment being 'two years in the penitentiary.

The indictment alleges that appellant, with intent to defraud S. H. Chapman, sold to W. D. Rivers one “World’s Wonder gas engine and concrete mixer, two wheelbarrows, six shovels, four picks,” which appellant had theretofore executed a valid mortgage upon to said Chapman. Motion to quash the indictment was based upon the claimed insufficient description of the property. The court only submitted the selling of one “World’s Wonder gas engine and concrete mixer.” The indictment does not set out the mortgage and no statement of facts is brought- to this court; therefore it is impossible for us to know how the property was described in the mortgage. The presumption is that the state introduced the mortgage in evidence.and that it was a valid and subsisting mortgage, because, in the absence of a showing to the contrary, every presumption must be indulged in favor of the correctness of the ruling of the trial court. Certainly, in the absence of a statement of facts, this court has no way of ascertaining the contrary. Article 403, Vernon’s C. O. P. 1925, reads as follows:

“When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient.”

Appellant’s contention seems to be based upon the assumption that-the description in the mortgage was the same as that contained in the indictment, and, if so, that it was insufficient to create a lien. He cites the case of Solinsky v. O’Connor (Tex. Civ. App.) 54 S. W. 935. In that case the mortgage described the property as “2 Legerwood engines,” without giving any number, marks, or other means of description. The court held this description insufficient to create a lien as against a judgment creditor of the mortgagor claiming under a writ of garnishment, but the implication seems to be that, as between the original parties, the mortgage was valid, for the reason that parol evidence would be admissible to supply deficiency in description ás between the parties.

In the case of Tips v. Gay (Tex. Civ. App.) 146 S. W. 306, the property mortgaged was described as follows: “One 3-70 saw, secondhand gin outfit complete, including engine and boiler.” This was held to be a sufficient description; the identity of the property intended to be covered being ascertainable by parol evidence. -See, also, Conley v. Dimmitt County State Bank (Tex. Civ. App.) 181 S. W. 271; Clark & Boice Lumber Co. v. Commercial National Bank of Jefferson (Tex. Civ. App.) 200 S. W. 197.

We find some complaint of the charge of the court as being an assumption of facts proven. It is impossible for us to appraise this complaint in the absence of the evidence.

landing no error in the record, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant renews his insistence that he could not be held guilty, and that the indictment in this case was not sufficient, because, as he contends, the description of the- property alleged to have been mortgaged and thereafter sold by appellant was not sufficient. The case of Solinsky v. State (Tex. Civ. App.) 54 S. W. 935, is again referred to and claimed by appellant to be authority * for holding the mortgage insufficient because of lack of more comprehensive description of the property therein referred to. We do not understand the cas'e referred to to -go as far as appellant thinks it does. The court did not hold the mortgage in question in that case void as between the parties, but held the description of the property not sufficiently definite to defeat the rights of other lienors whose rights had attached thereto. In the case of Hardin v. State, 88 Tex. Cr. 495, 227 S. W. 676, a case of selling mortgaged property, we held it sufficient to refer to the property as one cream-colored cow four years old, and one bay horse colt eight months old. Such general description in a controversy between the parties might be aided by other proof and the instrument be upheld. The question as to whether the description is such as will protect the mortgagee as against others whose rights have' attached to the property would appear to depend upon a different rule than applies between the mortgagor and mortgagee in a direct controversy between them. Under our laws against theft, or the unlawful acquisition of property, we charge one with taking one horse, one hog, one head of cattle, one pistol, $5 in money, etc., and we have never held it necessary in such case to incumber the indictment by a description of the property sufficiently specific to enable the particular piece of property to be singled out and pointed to as a result of the descriptive averments. We do not think this mortgage void, nor this indictment ‘bad.

Being unable to agree with appellant’s contention, the motion for rehearing will be overruled. 
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