(75 South. 641)

#### WILEY v. STATE.

(6 Div. 354.)

(Court of Appeals of Alabama.

May 15, 1917.)

1. Chattel Mortgages <@=233 — Sale by Mortgagor — Evidence—Sufficiency.

To sustain a conviction for the offense of selling mortgaged property, the state must prove beyond a reasonable doubt that the defendant had given a mortgage on the property so sold, and that at the time of the sale such mortgage was unsatisfied in whole or in part, and that such sale was made without having first obtained the consent of the lawful holder of the mortgage lien.

[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. | 494.]

2. Criminal Law <@=680(2) — Evidence—Admissions.' . .

In prosecution for sale of mortgaged property, alleged admissions of the defendant were not admissible before the corpus delicti was proven, even if a proper predicate had been laid.

[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. f 1610.3 ’ 1 •

3. Criminal Law @=400(7) — Evidence—Best and Secondary Evidence.

In a prosecution for sale of mortgaged property, evidence of statement made by alleged mortgagee that he had a mortgage on the property was incompetent as secondary evidence, until absence of written mortgage was properly accounted for, was inadmissible.

[Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 879-886.]

4. Chattel Mortgages @=233 — Sale by Mortgag or — Evidence—Relevancy.

In a prosecution for sale of mortgaged property, evidence of any claim the alleged mortgagee might have had to the property, other than the mortgage, was irrelevant.

[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 494.]

5. Chattel Mortgages @=233 — Sale by Mortgagor — Evidence—Sufficiency.

In a prosecution for sale of mortgaged property, evidence *held*insufficient to sustain a conviction.

[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 494.]

Appeal from Winston County Court; John F. Curtis, Judge.

O. L. Wiley was convicted of selling mortgaged property, and he appeals.

Reversed and remanded.

R. L. Blanton, of Haleyville, for appellant. W. L. Martin, Atty. Gen., and P. W. Turner, Asst. Atty. Gen., for the State.

SAMFORD, J.

The defendant was tried in the county court of Winston county under a charge of selling mortgaged property, and from a judgment of conviction he appeals.

[1] In order to sustain a conviction for this offense, the state must prove by evi*94denee beyond a reasonable doubt: First, that there was a sale of personal property; second, that the defendant had given a written mortgage lien or deed of trust on the property so sold; third, that at the time of the sale such mortgage lien or deed of trust was unsatisfied, in whole or in part; fourth, that such sale was made without first having obtained the consent of the lawful holder of the mortgage, lien, or'deed of'trust. These things must be established by legal testimony. The legal testimony in this case is as follows: One Hogan traded for a mule from the defendant on the 2d day of October, 1016, in Winston County; that at the time Hogan did not know of any lien on the property; that afterwards defendant came and wanted the mule back. There was no evidence for the state that there was a written mortgage, lien, or deed of trust on the property.

[2] The admissions of the defendant, testified to by the witness Hogan, were not admissible. . The corpus delicti must be proven before confessions of a defendant are competent, even after a proper predicate has been laid. . Johnson v. State, 142 Ala. 1, 37 South. 937.

[3] The statement made by Wood, as testified to by the witness Hogan, that Wood said to Hogan that he (Wood) had a mortgage on the mule, was incompetent. Secondary evidence of a written instrument is not admissible until its absence has been properly accounted for. The highest evidence is the paper itself or the record. Du Bose v. State, 115 Ala. 70, 22 South. 613.

[4,5] When Wood, who was claimed to have had a mortgage on the mule, was examined, he testified that he did not have a mortgage, lien, or deed of trust on the mule defendant traded to Hogan. Whatever other claim he may have had was not relevant to the issue in this case. On the evidence, as shown by the record, the defendant should not have been convicted.

For the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.