
    R. A. Kletzing v. F. W. Armstrong, Appellant.
    ¡■Malicious Prosecution: sale op mortgaged property: -written consent : oral permission : eyidenoe. In a prosecution for 1 the sale of mortgaged property under Code section 4852, the criminal intent of the mortgagor must he shown, even though he did not have the written consent of the mortgagee to sell; and where the mortgagor sells with oral consent and applies the proceeds on the mortgage debt, and is afterwards prosecuted by the mortgagee, he can maintain an action for malicious prosecution.
    "Evidence: conversations with county attorney. Evidence of con-2 versations with the county attorney in relation to the prosecutions are immaterial.
    
      Appeal -from Marshall District Court. — Hon. Gr. W. Burn-ham, Judge.
    Friday, February 6, 1903.
    Action for malicious prosecution. Verdict for plain■fciff. From judgment on verdict defendant appeals.—
    
      Affirmed.
    
    
      F. E. Northrup and Binford & Snelling for appellant.
    
      Boardman, Aldrich & Lawrence for appellee.
   McClain J.

Plaintiff seeks to recover damages for "three different prosecutions instituted by defendant ■against plaintiff in justice’s court for selling mortgaged ■chattels without the written consent of the mortgagee in violation of the provisions of Code, section 4852. With reference to the evidence it is sufficient to say that defendant as agent for another held chattel mortgages on domestic animals of plaintiff to secure the repayment of borrowed money; that in two or three different instances plaintiff sold different animals covered by these mortgages,, but as his evidence tends to show in pursuance of oral consent of the defendant, in each instance paying over to defendant to be applied on the indebtedness sums of money-equaling or exceeding that received for the animals sold;: that some controversy, arose between plaintiff and defendant as to the amount due defendant and as to the application of some payments which had been made; that sometime after all of the acts which were charged in the prosecutions to have been unlawful were committed, and after the disagreement between the parties as to applications of payments and amount of indebtedness, defendant caused three successive charges to be made against plaintiff before a justice of the peace for selling the mortgaged1 property without the defendant’s consent, the three different charges being with reference to different animals; that each of the prosecutions terminated favorably to this-plaintiff and this action was then commenced to recover-damages for malicious prosecution.

The most important question presented by counsel for appellant is as to the construction of Code, section. 4852,. which reads as follows:

“IE any mortgagor of personal property, while the-mortgage upon it remains unsatisfied, wilfully destroy, conceal, sell or in any manner dispose of the property covered by'such mortgage without the written consent of the then holder of such mortgage, he-shall be guilty of larceny and punished ac- ^ cordingly. ” The contention of counsel is-that no consent of the mortgagee, unless in writing, should be considered in determining whether plaintiff was guilty of a crime in selling the property, and- therefore in determining whether the prosecution was malicious and without-probable cause, and that, under the language of the statute,, the intent of the mortgagor is wholly immaterial, the sole-question to be considered in determining whether the statute has been violated being whether there has been a sale without written consent previously given.

We are not willing to adopt the construction of the statute contended for. It is true that statutes may be so framed-as to make the doing of a prohibited act punishable as a crime, without regard to the intent or circumstances. At least, such a proposition is frequently stated; and we are-content for the present to accept it, although we must confess a doubt as to whether, if there was evidence tending to show that the person doing the prohibited act was insane or acting under compulsion, it would still not be for the jury to say, in prosecutions under such statutes, whether the defendant actually entertained what in law is denominated a criminal intent. But such statutes, so far as they have come before the courts for interpretation, have uniformly been in the nature of police regulations, having for their purpose the prevention of acts such as the selling of intoxicating liquors, the running of gambling houses, and the like, which the legislature has seen fit to stigmatize as inimical to the public welfare, and has therefore endeavored to prevent by proper legislation. In these statutes the legislature has had in contemplation, not the prevention of acts injurious to the person or property of individuals, and therefore in general contrary to public policy, but acts regarded as contrary to the public welfare, without particular reference to their injurious consequences to the safety-of property and the person. The statute before- us, however, relates primarily to the protection of the rights of mortgagees in regard to mortgaged property. It declares the prohibited acts to be larceny, and provides for their punishment as such; thereby bringing them- within the general category of wrongs to private property.. In the-absence of any particular language in the statute itself,, we would be inclined to hold that the same general principles-with reference to criminal intent would be applicable-under this statute as under other statutes- calculated to--afford security to property,.and that a criminal intent in doing the prohibited act would be an essential ingredient -of the crime. The language of the statute re-enforces •this idea, for the provision is that a mortgagor who willfully sells mortgaged property without the written consent -of the holder of the mortgage shall be guilty of larceny. The word “willful” has, perhaps, no very well established meaning, and is to be construed in different statutes in •somewhat different senses, depending on the connection in which it is used; but in such connection as this it certainly implies a determination to do the prohibited act,with a bad intent and without justifiable excuse. Felton v. U. S., 96 U. S. 699 (24 L. Ed. 875); Potter v. U. S., 155 U. S. 438, 446 (15 Sup. Ct. Rep. 144, 39 L. Ed. 214); State v. Preston, 34 Wis. 675; Galvin v. Mill Co., 98 Cal. 268 (33 Pac. Rep. 93); State v. Massey, 97 N. C. 465 (2 S. E. Rep. 445); Railroad Co. v. Nash, 1 Ind. App., 298 (24 N. E. Rep. 884); Com. v. Kneeland, 20 Pick. 206, 220.

This was the view taken by this court in Walker v. Camp, 69 Iowa, 741, in construing the statutory provision thin in force with relation to the sale of mortgaged prop•erty, the court saying: “The seller of the mortgaged property is not to be convicted therefor w ithout a criminal •intent. If the consent is such, in whatever way it may be .given, that the seller honestly believes that he is authorized to sell the property, his honest act cannot be converted into a criminal one by a technical rule of evidence, •framed for the protection of civil rights.” This language was used in answer to the contention in that case that a -consent given before the mortgage was executed, and not •embodied in the mortgage, could not be shown for the purpose of negativing criminal intent on the part of the •mortgagor in making a sale which was without any consent .■given after the mortgage was executed.

Counsel insist, however, that this case is no longer pertinent, in-view of a subsequent change cf the statute, consisting solely in the introduction of the word “written,”' which was made by chapter 50, Acts 25th General Assembly, the statute which was under consideration in the-case of Walker v. Camp being retained, .with this change in the present Oode as section 4852, above quoted. We-think, however, thatthe introduction of the word “written”' does not render inapplicable the reasoning of the court used in that case. If it had been intended by the legislature to make criminal intent immaterial as an element of the crime described, such intention would have been evidenced by some change in the language pertinent to the interpretation which the court had already put upon the statute. A written consent, given before the execution of the mortgage, and not embodied therein, would have-been just as inadmissible, according to the rules of evidence in civil cases, as a protection to the mortgagor selling the property after the execution of the mortgage, as-similar evidence of oral consent. So far as we can see, there is nothing to show a legislative purpose to nullify or render inapplicable the conclusion of the court in that case. We cannot believe that the legislature intended to-say that, mortgagor, who, by the express oral direction of the mortgagee and in his very presence, or with his express knowledge and approval, should make a sale of the mortgaged property with the good-faith purpose and understanding that the proceeds should be paid over to the mortgagee, and credited on the indebtedness, would thereby commit a crime for which, if the property exceeded $20 in value, he might be sentenced to imprisonment in the penitentiary. Such a conclusion would be so abhorrent to any conception of justice which we are able to entertain that it-would take very definite and unequivocal language to justify it.

There was evidence in this case which would warrant the jury in finding that the sales of the mortgaged property made by the plaintiff were with the approval of the ■ defendant, previously given; and we think that the court ¡properly left it to the jury to say whether the plaintiff, in making the sales, honestly believed that he had authority ¡from the defendant to do so, by reason of consent of defendant thereto, even though not in writing, and that such honest belief on the part of the plaintiff, if it existed, .-should have been taken into account by defendant in determining whether'he had probable cause for commencing .the prosecutions.

We need not further discuss the assignments of error as to the giving and refusal of instructions, so far as they relate to this matter, for the whole burden of complaint in 'this respect is founded on the contention (which we find to be unwarranted) that no oral consent of the mortgagee, and no honesty of belief on the part of the mortgagor founded upon any such consent, would relieve the mortgagor from criminal liability for selling the mortgaged property.

Complaint is made of the action of the trial court in •sustaining objections to.questions, asked of a witness who had been consulted as counsel with reference to instituting the criminal prosecutions, with relation to his having submitted the matter to the county • attorney; but what counsel may have said to ■the county attorney, or what the county attorney may have said to counsel, was wholly immaterial. -The county ■attorney was not counsel for this defendant in instituting the criminal proceedings, and therefore defendant was not justified in relying, if he did rely, on any advice or suggestion thus given.

Other assignments of error with reference to the ad■mission or exclusion of evidence are argued, but they are not -of sufficient importance to justify discussion in this opinion.

The interrogatories asked in behalf of defendant and refused, were not such as to call for answers which would have been determinative of the case, and therefore the ruling of rthe trial court in this respect was correct.- — Aefirmeu.  