State v. Barber

SULLIVAN, J.

This is an appeal on the part of the state from an order granting a new trial to the defendant, who was convicted of grand larceny for selling mortgaged cattle and sentenced to two years’ imprisonment in the penitentiary. This prosecution was brought under the provisions of sec. 7100, Rev. Stat., which is as follows:

“Every mortgagor of property mortgaged in pursuance of the provisions of Chapter Four of Title Twelve of the Civil Code, who, while such mortgage remains unsatisfied in whole or in part, wilfully removes from the county or counties where such mortgage is recorded, or destroys, conceals, sells, or in any manner disposes of the property mortgaged, or any part hereof, without the consent of the holder of the mortgage, is guilty of larceny.”

Under the provisions of that section, a person may be convicted of either petit or grand larceny. If the property disposed of is livestock, or exceeds the value of $60, the disposition of the same by the mortgagor, under the provisions of said sec. 7100, is grand larceny; otherwise it is petit larceny. (Sec. 7048, Rev. Stat.)

It is suggested by counsel that as the evidence shows the mortgagee had received other security from the mortgagor in place of the property sold, this prosecution cannot be maintained for that reason. Counsel mistakes the purpose of said statute. The provisions of that statute are not solely for the protection of the mortgagee, but for the protection of the person to whom the mortgaged property has been sold as well, as the mortgagee may take the property wherever found, and the purchaser may be the loser. In the ease at bar, the mortgagee may not in the end lose a dollar, but it appears from the record that the purchaser has lost money by reason of the purchase, and the law is for his protection as well as that of *99 the mortgagee. The question whether anyone has lost money by reason of the sale of mortgaged property is not the test as to whether a crime has been committed under the provisions of said section, and if a crime has been committed thereunder, it is not in the power of the mortgagee to condone the offense and prevent a prosecution for it, any more than one can commit the larceny of a horse, and if caught, pay for the horse and thus satisfy the law for the commission of the crime.

It is contended by the attorney general that under the testimony introduced on the trial, there is not a possibility of a doubt of defendant’s guilt of the crime charged, and it does appear quite conclusive; but, as the granting of a new trial is largely in the discretion of the trial court, its action therein will not be disturbed unless there appears a clear abuse of such discretion. The trial court saw the witnesses, heard them testify, observed their manner while on the stand, and concluded that in the interests of justice a new trial should be granted. We are unable to say from the record before us that he abused his discretion in that matter, and for that reason this court will sustain the order granting a new trial.

If the trial court, when granting a new trial, would specify the grounds upon which such new trial is granted, it no doubt would lighten the labors of respective counsel and of this court, and not require the court to examine matters which were not taken into consideration by the judge or trial court in determining the motion.

The order granting a new trial must be sustained, and it is so ordered.

Ailshie, C. J., and Stewart, J., concur.