Opinion
January Term, 1903.
Judgment of conviction reversed and new trial ordered.
The defendant bought certain household goods of the complaining witness in May, 1902, at the agreed price of sixty-two dollars, paying five dollars in cash and promising to pay one dollar weekly until the whole amount should be paid. To secure these payments he executed and delivered to the complaining witness a chattel mortgage upon the same property. He was a married man, keeping house in the borough of Brooklyn, to which place he had recently moved from his former home in Goldsboro, State of North Carolina. For a period of five weeks after this transaction the defendant paid two dollars weekly upon his account and until the latter part of September paid at about the same rate as called for in the agreement. On or about October first his wife became ill and defendant sent her back to his former home in North Carolina for the benefit of her health. On October twenty-seventh the defendant paid three dollars on account, and early in November thereafter, finding he could not care for the household goods in Brooklyn he shipped them to his wife in Goldsboro. On December sixth, being in default in his weekly payments, he was solicited by one of the agents of the complaining witness to resume payment. The defendant informed him that he had sent his goods to his wife, and indicated where she was and where the goods might be found, and promised to call at the office of the complaining witness and make further payments. Accordingly, on the same day he called there, again told of the whereabouts of the goods and paid two dollars on account, which were accepted. Two days later he was arrested for a violation of section 571 of the Penal Code. That section provides as follows: "A person who, having theretofore executed a mortgage of personal property, or any instrument intended to operate as such, sells, assigns, exchanges, secretes, or otherwise disposes of any part of the property, upon which the mortgage or other instrument is at the time a lien, with intent thereby to defraud the mortgagee, or a purchaser thereof, is guilty of a misdemeanor." No conviction under this section can be sustained unless the act of the defendant is "with intent thereby to defraud." We are unable to discover in this case any evidence pointing to a criminal intent on the part of the defendant. At the time of the removal of the goods to North Carolina the defendant was in advance of his one dollar a week engagement, and had paid more than was then due under the contract of sale. He had then paid approximately one-half of the purchase price. When asked to resume payments he volunteered the information as to the location of the goods, and immediately complied with the request. Intent to defraud cannot be predicated upon such a course of action. The Special Sessions seems to have laid stress upon the supposed undertaking in the mortgage that the defendant would not remove the goods from the house to which they were originally delivered by the vendor. No such agreement is contained therein. The defendant covenanted that in case he made any attempt to effect such a removal without written consent, the mortgagee might elect that the whole amount of the mortgage should become due and sell the mortgaged property to satisfy the debt. Further than that, it is to be noticed that the property was removed from the house where the defendant lived at the time of the purchase to another residence in the same borough, and that the vendor's agents knew of that removal, which was, as far as appears, without the written consent of the vendor, and accepted defendant's weekly payments thereafter. The language of the instrument, particularly in the light of the course of dealings between the parties, furnishes no evidence or presumption of a criminal intent on the part of the defendant. The judgment of conviction should be reversed and a new trial ordered. Goodrich, P.J., Woodward, Hirschberg and Jenks, JJ., concurred.