No. 2255.

#### T. R. Honeycut *v.*The State.

1. Fraudulent Disposition oe Mortgaged Property—Indictment— Evidence.—The indictment in this case charged the appellant with the fraudulent disposition of “four bales of cotton” upon which he had previously executed and delivered a valid mortgage in writing, etc., and was sufficient to charge the offense of fraudulently disposing of mortgaged personal property. The mortgage, however, as it desc ibed the property mortgaged as a “crop of cotton to be raised by” defendant “during the year 1886,” was inadmissible in support of the indictment.

3. Same.—Under the Act of the Nineteenth Legislature (General Laws, p. 85), a growing crop may be mortgaged, and a fraudulent disposition of the same when mortgaged is an offense against the laws of this State-See the opinion *in extenso*for a form of indictment for fraudulently disposing of a growing crop of cotton when mortgaged.

Appeal from the District Court of Bell. Tried below before the Hou. W. A. Blackburn.

The conviction in this case was for fraudulently disposing of mortgaged property, the penalty assessed being a term of two years in the penitentiary. The disposition of the appeal demands no statement of the facts proved.

*James Boyd,*for the apppellant.

*J. H. Burts,*Assistant Attorney General, for the State.

Willson, Judge.

It is charged in the indictment that the defendant, with intent to defraud, sold and disposed of four bales of cotton, personal and movable property, upon which he had previously executed and delivered to one Staton a valid mortgage in writing, etc.

Upon its face the indictment is a good one. On the trial of the case the State offered and read in evidence, over the objections of defendant, a written mortgage executed by the defendant to said Staton, dated May 11, 1886. This mortgage describes the property mortgaged as a crop of cotton to be raised by defendant during the year 1886. It is not a mortgage upon four or any *72other number of *bales,*of cotton. It was objected to as evidence, because it was not the mortgage described in the indictment.

Opinion delivered February 9, 1887.

We are of the opinion that the objection should have been sustained. There is a material difference between a *crop*of cotton and cotton in the *bale,*with respect to this prosecution. A growing crop of cotton, it is true, may be mortgaged, and a fraudulent disposition of the same, when mortgaged, is now an offense against the law. (Gen. Laws, 19 Leg., p. 85.) But the indictment does not allege that the mortgage was upon a *growing crop of cotton,*but upon *four bales of cotton.*The mortgage read in evidence does not correspond with the allegation in the indictment as to the character of the property upon which a mortgage was executed by the defendant.

To have met the facts of this case, the indictment should have averred that the mortgage was executed upon a growing crop of farm produce, to wit: cotton, describing it as it is described in the mortgage, and that the defendant, with intent to defraud, sold and disposed of said crop or a portion thereof. But, the indictment having described the property mortgaged as *bales*of cotton, it was error to admit in evidence the mortgage describing the mortgaged property as a crop of cotton. The allegation and the proof were materially variant. (Osborne v. The State, 14 Texas Ct. App., 235; Davis v. The State, 13 Texas Ct. App., 215; Case v. The State, 12 Texas Ct. App., 228; Handle v. The State, 12 Texas Ct. App., 250; Gray v. The State, 11 Texas Ct. App., 411.)

Other errors complained of in this appeal have been considered, but are not deemed tenable, nor of sufficient importance to require discussion. Because the court erred in admitting the mortgage to be read in evidence, the judgment is reversed and the cause is remanded.

*Reversed and remanded.*