CHAPTER 246. LIENS AND EXECUTIONS, FRAUDS AS TO. 7342, 7343. SECTION. 7342. SECTION. 7343. Selling, removing, or disposing of property subject to execution, or withholding same from assignee. (4757) (3835) (4353) (3705) (159) Removing, selling, or buying property to which others have claim.-Any person who removes or sells any personal property for the purpose of hindering, delaying, or defrauding any person who has a claim thereto, under any written instrument, lien created by law for rent or advances, or any other lawful or valid claim, verbal or written, with a knowledge of the existence thereof; or who, with like intent, buys, receives, or conceals any such property, with knowledge of the existence of any such claim, must, on conviction, be punished as if he had stolen the same. (Form 98 [78].) (Clay's Digest, p. 419, § 20; Feb. 13, 1875, p. 259.) Affidavit charging that affiant has reason to believe and does believe is not sufficient; this is not the equivalent of a probable cause to believe.-Monroe v. State, 137 Ala. 88 (34) So. 382). Selling two oxen upon which defendant had given a mortgage.Fountain v. State, 98 Ala. 40 (13 So. 492). Mode of execution of mortgages and proof of such execution.-Houston v. State, 114 Ala. 15 (21 So. 813). Sufficiency of indictment; indictment concluding "against the peace and dig. nity of the state." Constituents of offense and relevancy of evidence in defense. Atwell v. State, 63 Ala. 61; Glenn v. State, 60 Ala. 104; Nixon v. State, 55 Ala. 120. Indictment may allege in the alternative that the defendant did sell, remove, or sell;" indictment need not contain a particular description of the mortgage or other written instrument.-Nixon v. State, 55 Ala. 120. The defendant must know of the claim or lien of the person to the property alleged to have been removed.-Jones v. State, 113 Ala. 95 (21 So. 229). The venue must be proven.-May v. State, 115 Ala. 14 (22 So. 611). Removal with knowledge of lien may raise presumption of intent to defraud.-May v. State, 115 Ala. 14 (22 So. 611). Mortgagee is person having a lien or claim. That the person having the lien justifies the act of selling or removing no justification.-May v. State, 115 Ala. 14 (22 So. 611). Indictment must conclude "against the peace and dignity of the state." Where the property was sold, and proceeds paid over to mortgagee, held not to support a conviction.-Smith v. State, 139 Ala. 115 (36 So. 727); Conner v. State, 97 Ala. 83 (12 So. 413). Evidence examined and held insufficient to support conviction. Tallent v. State, 142 Ala. 47 (38 So. 841). Code form of indietment sufficient.-Tallent v. State, 142 Ala. 47 (38 So. 841). The removal or sale must be with intent to hinder, delay, or defraud the person who has the claim thereto.-Cobb's case, 100 Ala. 19 (14 So. 362). The offense of removing or sale with intent to hinder, etc., may be joined in same indictment with embezzlement.-Upshur's case, 100 Ala. 2 (14 So. 541). In such case no election required, if both offenses grow out of same transaction.-Ib. Landlord has no lien for advances furnished a day laborer to be paid for in labor.Powell's case, 84 Ala. 444 (4 So. 719). An equitable mortgage is such a claim as falls within the statute.-Varnum's case, 78 Ala. 28. A mortgage of an unplanted crop is within the statute.-Ib. It is a defense that property was sold to discharge a prior paramount lien.-Conner's case, 97 Ala. 83 (12 So. 413). Party buying property without knowledge of claim, and selling same without notice thereof, is not guilty, though he refuse to disclose as to the property after notice.-Thomas's case, 92 Ala. 49 (9 So. 540). Hauling cotton to the gin, if with intent to defraud, is sufficient.-Money's case, 89 Ala. 110 (7 So. 841). A mortgagee who has transferred his mortgage, is guilty if he afterwards sell the property mortgaged.-Foster's case, 88 Ala. 182 (7 So. 185). If the lien has become merged into perfect title before removal there can be no conviction.-Smith's case, 84 Ala. 438 (4 So. 683), overruling Ellerson's case, 69 Ala. 1. A mortgage on entire crop to be raised annually until debt is paid is not void, but may be explained by parol evidence.—Varnum's case, 78 Ala. 28. Indictment must aver name of party who holds claim—not sufficient to aver it is unknown.-Hill's case, 78 Ala. 1. Evidence must show knowledge.-Jones's case, 113 Ala. 95 (21 So. 229). 7343. (4759) Selling, removing, or disposing of property subject to execution, or withholding same from assignee.Any person who sells, removes, or otherwise disposes of property subject to execution with the intent to hinder, delay, or defraud his creditors, or who fraudulently secretes, or withholds any such property from his assignee in any general assignment, must, on conviction, be punished by a fine of not more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than six months. (Feb. 16, 1897, p. 1089, § 3.) This section not codified in the Code of 1896, or adopted, but simply inserted by the commissioner, which did not cure defects of enactment.-Builders & Painters' Supply Co. v. Lucas, 119 Ala. 202 (24 So. 416). Parts of act valid, part not. Infirmity of legislative procedure not cured as to this section of the Code by codification under the Code of 1896.-Bluthenthal v. Trager, 131 Ala. 639 (31 So. 622). Note. These decisions construed Code of 1896. The defect cured by the adoption of this Code. CROSS REFERENCES. LIENS AND EXECUTIONS, FRAUDS AS TO (Criminal Code).. 7344. (5067) (3707) (4640) (3949) (401) Offenses as to which there is no limitation.-There is no limitation of time within which a prosecution must be commenced for any public offense which may be punished capitally, or for murder in the second degree, manslaughter in the first degree, arson, forgery, counterfeiting, or any offense expressly punishable. under the provisions of this Code, as forgery or counterfeiting. One year was at one time the limitation of all prosecutions for all offenses.— Toulmin's Digest, p. 215, § 49. (Aikin's Digest, p. 122.) Effect of holding defendant to answer second indictment upon the statute of limitations, see Cunningham v. State, 117 Ala. 59 (23 So. 693). Under the Code of 1876 there was no limitation of time within which a prosecution might be commenced for grand larceny.-Lyons v. State, 61 Ala. 224. (The word "larceny" was omitted from the Codes of 1886 and 1896.) 7345. (5068) (3708) (4641) Six years in conversion of state or county revenue.-A prosecution for conversion of the state or county revenue must be commenced within six years next after the conversion. (Mar. 6, 1876, p. 43, ch. 10, § 2.) 7346. (5070) (3710) (4643) (3951) (403) Three years in other felonies.-The prosecution of all felonies, except those specified in the preceding sections, must be commenced within three years next after the commission of the offense. (Clay's Digest, p. 444, § 37.) Applies to burglary.-Hurt's case, 55 Ala. 214. 7347. (5071) (3711) (4644) (3952) (404) Twelve months in misdemeanors before circuit or county court.-The prosecution of all misdemeanors before the circuit, city, or county court, unless otherwise provided, must be commenced within twelve months next after the commission of the offense. (Aikin's Digest, p. 122, § 46; Clay's Digest, p. 444, § 38, p. 481, § 34.) Issuing warrant may be the commencement of the prosecution.-Ross v. State, 55 Ala. 177. The finding of a defective indictment may be the commence ment of the prosecution.-Foster v. State, 38 Ala. 425. All misdemeanors barred within a year.-Giles v. State, 88 Ala. 230 (7 So. 271); Martin v. State, 79 Ala. 267. If prosecution begun by indictment it must be found within one year.-Molett v. State, 33 Ala. 408. Where prosecution is begum by affidavit and warrant or by indictment which is subsequently quashed and defendant held to answer second charge, the pendency of the proceedings stops the statute for the length of time it was pending.-Weston v. State, 63. Ala. 155. For pending prosecution to stop statute, it must appear that it was for the same offense.-Smith v. State, 62 Ala. 29. A warrant for obtaining money under false pretenses does not stop the statute for the offense of violating a written contract.-Jackson v. State, 106 Ala. 136 (17 So. 349). An indictment not alleging time, in legal effect charges that crime was committed within twelve months. If the statute creates a new offense, indictment or affidavit must charge that the offense was committed after the passage of the statute.-Lyons v. State, 61 Ala. 224. An affidavit before justice of the peace returnable to county court, which is pending when the indictment. is found, after which prosecution under affidavit was abandoned, did not stop the running of the statute, there being no connection. between the two prosecutions.-Greene V. State, 139 Ala. 157 (36 So. 773). Bastardy is not a misdemeanor within this section of the Code. State v. Hunter, 67 Ala. 81. A misdemeanor is any crime less than a felony, but it must be an indictable offense.-State v. Hunter, 67 Ala. 81. The limitation of prosecutions for misdemeanors is twelve months next after the commission of the offense; and the time covered by the affidavit or indictment is twelve months next before its date.-Espy v. State, 47 Ala. 533 Issuing a warrant charging false pretense does not stop statute for offense of defrauding an employer, though for same act.-Jackson's case, 106 Ala. 136 (17 So. 349). Prosecution for escape from hard labor contract not barred until twelve months from escape.-Fuller's case, 97 Ala. 27 (12 So. 392). Issuing a warrant alone does not stop the running of the statute of limitations. -Giles's case, 88 Ala. 230 (7 So. 271); Martin's case, 79 Ala. 267; Bube's case, 76 Ala. 73. 7348. (5072) (3712) (4645) (3953) (405) Sixty days in prosecution before justice.-Prosecutions before a justice of the peace for offenses within his jurisdiction, unless otherwise provided, must be commenced within sixty days next after the commission of the offense. When a person is brought before a justice, charged with a misdemeanor of which he has jurisdiction, it is the duty of the justice to proceed to final trial; he has no power to bind the defendant over to answer indictment unless demanded by defendant.-Ex parte Pruitt & Harper, 99 Ala. 225 (13 So. 317). 7349. (5073) (3713) Thirty days in using temporarily personal property of another.-A prosecution for unlawfully taking or using temporarily the property of another must be commenced within thirty days after the commission of the offense. (Feb. 5, 1879, p. 165, § 3.) If the issuance of warrant or affidavit is relied upon to save the bar in subsequent prosecution, both must charge or attempt to charge the same offense and a subsequent prosecution must be a continuance of the first; if they are distinctly different, or distinctly different prosecutions for the same charge, the bar is not saved; there must be continuity as well as sameness.―Jackson v. State 106 Ala. 136 (17 So. 349); Green v. State, 139 Ala. 157 (36 So. 773). 7350. (5074) (3714) (4646) (3954) (406) Commencement of prosecution.-A prosecution may be commenced, within the meaning of this chapter, by finding an indictment, the issuing of a warrant, or by binding over the offender. (Clay's Digest, p. 444, § 39.) The issuance of a warrant, though not served because of flight of defendant, suspends the statute as to an indictment subsequently found.-Clayton v. State, 122 Ala. 91 (26 So. 118). See Green's case, 139 Ala. 157 (36 So. 773); Ross's case, 55 Ala. 177; Molett's case, 33 Ala. 408; Foster's case, 38 Ala. 425; Giles's case, 88 Ala. 230 (7 So. 271); Martin's case, 79 Ala. 267; Bube's case, 76 Ala. 73. 7351. (5075) (3715) (4820) (4147) (597) Statute suspended in certain cases.-When an indictment is lost, mislaid, or destroyed, or when the judgment is arrested, or the indictment quashed for any defect therein, or for the reason that it was not found by a grand jury regularly organized, or because it charged no offense, or for any other cause, or when the prosecution is dismissed because of a variance between the allegations of the indictment and the evidence, and a new indictment is ordered to be preferred, the time elapsing between the preferring of the first charge or indictment and the subsequent indictment must be deducted from the time limited for the prosecution of the offense last charged. Facts to take prosecution out of bar must affirmatively appear.-Bube v. State, 76 Ala. 73. The statutory exception applies only in such case when the subsequent indictment is preferred under the provisions of the preceding section.-Bube v. State, 76 Ala. 73. Where a prosecution is adjudged to be void in the county court, it cannot operate as a foundation for the further continuance of the prosecution by subsequent indictment.-Bube v. State, 76 Ala. 73. A second prosecution cannot be sustained after judgment of aequittal rendered on verdict of jury. Statutes do not contemplate a second prosecution in any other cases than such as are specified.-Berry v. State, 65 Ala. 117. Court has inherent power to order substitution of new indietment after loss of first, and the time elapsing between the finding of the first and subsequent indictments is not to be computed as a bar to the statute of limitations.-Bradford v. State, 54 Ala. 230. Effect of holding defendant to answer second indictment upon the statute of limitations. See Cunningham v. State, 117 Ala. 59 (23 So. 693); Molett's case, 33 Ala. 408; Foster's case, 38 Ala. 425; Weston's case, 63 Ala. 155; Coleman's case, 71 Ala. 312; Smith's case, 79 Ala. 21; Bazell's case, 89 Ala. 14 (8 So. 22). Limitation of action; motion to quash.-Davis v. State, 145 Ala. 69 (40 So. 663). CROSS REFERENCES. LIMITATION OF PROSECUTIONS (Criminal Code). 7344-7351 5265-3289 |