Opinion
No. 33654.
October 2, 1939.
1. FALSE PRETENSES.
Under statute penalizing the sale, barter, exchange or mortgage of property previously sold, bartered, mortgaged or otherwise incumbered, as constituting obtaining money under false pretenses, what constitutes property is a very material element of the indictment (Code 1930, sec. 921).
2. CHATTEL MORTGAGES.
A deed of trust describing the mortgaged property as mortgagor's entire interest in "any and all crops . . . raised on land belonging to himself or any other land he may cultivate during said year," together with any cotton or corn due him as rent for said year, created no lien under statute governing mortgages on after-acquired property, since there was no effort to localize the crops to be planted (Code 1930, sec. 2130).
3. FALSE PRETENSES.
In prosecution for obtaining money by false pretenses, by mortgaging previously mortgaged crops, indictment reciting the previous mortgage as covering defendant's interest in "all crops . . . raised on land belonging to himself or any other lands he may cultivate during said year" was demurrable, since such mortgage did not create a lien and the property was insufficiently described (Code 1930, secs. 921, 2130).
APPEAL from the circuit court of Marion county; HON. J.C. SHIVERS, Judge.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
At the common law there was no such thing as a mortgage on unplanted crops. This clearly appears from the decision of this court in Coffey v. Land, 176 Miss. 114, 167 So. 49. However, by statute in Mississippi unplanted crops are recognized as property and as such, subject to mortgage.
Section 2130 of the Code of 1930 provides: "A deed of trust or mortgage on all of the chattels of a named class or classes (not including merchandise), described or limited as to locality, owned at the time of the execution of the instrument and on such property of like kind as may be acquired during a stated period not to exceed twelve months, given to secure any and all indebtedness which the grantor may owe the beneficiary during said period, shall be a valid lien against all creditors of the grantor. The grantor shall have the right to pay the indebtedness thus secured with interest at any time, though not then due."
Under the section just quoted unplanted crops are recognized as a species of property upon which a lien may be placed, which is given priority as against all other creditors of the grantor.
The two mortgages referred to in the indictment were evidently drawn under the provisions of this section, and, being property which the law recognizes as subject to a mortgage, we submit that the provisions of Section 921 of the Code of 1930 were broad enough to cover mortgages on unplanted crops, because it is intended to cover any "property."
Section 921, Code of 1930; Simmons v. State, 160 Miss. 582, 135 So. 196.
In the case at bar Collins used property which the law recognizes as being subject to a mortgage to obtain advances of money and merchandise from the Rankin Company and did not advise the Rankin Company of the fact that the same property was already under the same character of mortgage to another, and by so doing did cheat and defraud the Rankin Company out of several hundred dollars worth of money and merchandise.
Martin Farr, of Prentiss, for appellee.
We most respectfully call the attention of the court to the statute, Section 921, Code 1930, under which the indictment was drawn. This statute denounces "False Pretenses and Cheats — Selling Property (Note word `Property') previously sold on which there is a lien without." Now please note that the word "Property" goes all the way through the statute — ". . . shall sell, barter, or mortgage or give deed of trust on any property, real or personal . . . without informing the person to whom he so sells . . . or gives a deed of trust on it (that is property) of the exact state of the `Property,' etc." The statute contemplates property, and we respectfully submit that unplanted crops are not property and cannot be made property by any legal legerdemain of skilled attorneys and we speak respectfully. The statute needs no interpretation or construction. It is its own interpreter. It is plain and unambiguous. It simply states that the thing involved is property. Criminal and penal statutes are construed strictly and literally.
Love v. State, 150 So. 196; Sec. 415, "Specific Offenses," and Sec. 478, "False Pretenses," 2 Bishop's New Criminal Law; Coffey v. Land, 176 Miss. 114, 167 So. 49.
The only argument presented by the state is that Section 2130 of the Code of 1930 recognizes unplanted crops as property; and the learned Assistant Attorney-General wants to take this Section 2130, which is a section dealing with civil law, and engraft it on a criminal statute and by a strange process of substitution, write into the criminal section, Section 921, something that is not there at all. This would be making the law anew and would be, in our judgment, in violation of Section 14 of the Constitution, in that defendant would be held "without due process of law."
We submit, however, that the state is in error and in manifest error in holding that Section 2130 converts "unplanted crops" into property, and is in error in holding that said section gives the right to execute mortgages on after-acquired property. It simply provides when certain mortgages shall be valid as against creditors.
Prentiss Mercantile Co. v. Thurman, 161 So. 746; Coffeeville Bank v. Stone, 153 Miss. 811, 121 So. 816.
We most respectfully submit that this indictment must stand or fall on Section 921 under which it was drawn and the pleader cannot reach out and engraft upon it other statutes, not criminal in their import, and interpolate these into the statute under which the indictment was drawn. There cannot be any species of property in existence in unplanted crops.
Ricks v. State, 146 Miss. 659.
We call the court's attention to the fact that in Simmons v. State, 160 Miss. 582, 135 So. 196, our court overruled or at least modified former decisions under Section 921 and held definitely that the gist of the crime under this section is the "intent to cheat and defraud."
This indictment nowhere charges that Alfred Collins did with intent to cheat and defraud this corporation.
Pittman v. State, 58 So. 532, 101 Miss. 553; State v. Freeman, 60 So. 774, 103 Miss. 764; State v. Mortimer, 82 Miss. 443, 34 So. 214; Danley v. State, 12 So. 698; State v. Hubanks, 99 Miss. 775, 56 So. 163.
In this case the court below sustained a demurrer interposed by Alfred Collins to an indictment against him; and from the judgment thereon the State appealed to this Court.
The indictment was apparently drawn under section 921, Code of 1930. An outline of the facts upon which the indictment is predicated is, in substance, as follows: That Alfred Collins, on the 22nd day of December, 1934, executed a deed of trust, which was acknowledged and recorded, in favor of B.C. Griffith for an existing debt and supplies to be thereafter furnished to Collins. This deed of trust was executed on December 2d 1934. That thereafter a second deed of trust was executed by Collins, in favor of the Rankin Company, on the 4th day of February, 1935, presumably upon the same property; and that Collins did not inform the Rankin Company of the existence of the prior deed of trust.
The indictment further charged that the defendant "did then and there wilfully, unlawfully, feloniously and fraudulently, knowingly cheat, wrong and defraud the said Rankin Company of its property, effects, goods, wares, merchandise and money of the value of $468.82 against the peace and dignity of the State of Mississippi."
The precise allegation of the indictment is that the description in the Griffith deed of trust, upon which the lien was based, is as follows: "His (Collins') entire interest in any and all crops of cotton, corn, and all other agricultural products raised by him and any hand he may employ during the year 1935 and raised on land belonging to himself or any other land he may cultivate during said year, together with any and all cotton or corn that may be due the said defendant as rent for said year 1935."
The description in the Rankin Company deed of trust did not differ essentially from that in the alleged Griffith deed of trust.
On the appeal to this Court the State contends that section 921, Code of 1930, construed in connection with section 2130 thereof, authorizes the indictment herein, because it is said in the latter section that the description of a crop yet to be grown is property within the meaning of said section 921. In other words, a deed of trust on a crop yet to be grown by the grantor therein constitutes property within the meaning of that word as used in section 921, which reads as follows:
"If any person shall sell, barter, or exchange or mortgage, or give deed of trust on, any property [italics ours], real or personal, which he had before sold, bartered, or exchanged, or obligated himself to sell, barter, or exchange, or which he had mortgaged, or in any manner incumbered, or on which he knows there is a lien of any kind by contract or by law, without informing the person to whom he so sells, barters, exchanges, or bargains, or mortgages or gives deed of trust on it, of the exact state of the property [italics ours] as affected by said acts or of the lien or incumbrance thereon, he shall be guilty of obtaining under false pretenses whatever he received from the person dealing with him, and shall, on conviction, be punished therefor, as for obtaining goods under false pretenses."
Section 2130 is as follows: "Chattel mortgage on property owned or to be acquired valid, when. — A deed of trust or mortgage on all of the chattels of a named class or classes (not including merchandise), described or limited as to locality, owned at the time of the execution of the instrument and on such property of like kind as may be acquired during a stated period not to exceed twelve months, given to secure any and all indebtedness which the grantor may owe the beneficiary during said period, shall be a valid lien against all creditors of the grantor."
We are relieved from deciding the very difficult question presented by the Attorney General in his brief in this case. Section 921 uses the word "property" three times, including the caption — so that what constitutes property is a very material element of the indictment. In Coffey v. Land, 176 Miss., 114, 167 So. 49, this Court held that at the common law a deed of trust or mortgage on unplanted crops was not known or recognized; and it was further pointed out in that case that a statute permitting such deeds of trust in this state was expressly repealed in 1886, and was never expressly re-enacted, unless it be said that the right to give a mortgage on unplanted crops is included in section 2130, which appears first in our statutes by chapter 243, Laws of 1920.
It will be observed that whatever validity is granted by section 2130 to mortgages on chattels or after-acquired profits is limited to chattels of the character described or limited as to locality, owned at the time of the execution of the instrument. A casual examination of the indictment here under consideration reveals that the deeds of trust described in the indictment, both to Griffith and to the Rankin Company, were blanket deeds of trust on crops to be raised anywhere in the world by the grantor therein, Collins, during the year 1935. No county or state was named in which the crops were to be grown. And there was no effort, insofar as the indictment discloses, to localize the crops to be planted, as required by section 2130.
It must follow that there was no lien of any kind obtained by Griffith in the trust deed executed by Collins in his favor. In other words, this indictment did not contain a description of anything tangible or intangible, in esse or not in esse, so that no crime was charged.
We are of opinion that the court below did not err in sustaining the demurrer to the indictment, for the reason that no crime was charged.
Affirmed.