The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kiowa county on a charge of selling mortgaged property, and was sentenced to serve a term of one year in the state penitentiary. *Page 293
The evidence of the state is that the defendant purchased a Velie automobile from the Walker Motor Exchange Company of Oklahoma City, and gave a mortgage thereon to said company in the sum of $365. The mortgage was recorded in Kiowa county, and thereafter in said county the defendant sold said automobile to one Greenhaw without having procured the written consent of the holder of said mortgage. The mortgagee replevined said automobile from Greenhaw, and defendant did not defend said replevin action.
Defendant admitted the purchase of the automobile and the execution by him of the mortgage, and that the mortgage had not been paid, and that he sold the automobile to Greenhaw knowing that it was mortgaged. He testified he had verbal authority from the mortgagee to sell the same. At the close of the trial, he requested the trial court, in substance, to instruct the jury that, if they should find defendant was authorized by oral authority from the mortgagee to sell or dispose of said car, then they should find the defendant not guilty. The court refused this instruction, and gave no instruction touching the matter of oral consent, but instructed the jury in instruction No. 4 that if they should find from the evidence that defendant sold the automobile in question to Greenhaw, and that at the time the same was mortgaged, and without the written consent of the mortgagee and with intent to cheat and defraud, then they should find the defendant guilty. In the case of Watson v. State, 11 Okla. Cr. 542, 149 P. 926, this court held that a mortgagor, prosecuted under the provisions of section 2215, Comp. Stat. 1921, may prove oral consent in mitigation of punishment. That case further holds in substance that the absence of an intent to defraud would be a defense. The instruction requested is not correct, but it is well settled *Page 294 that where a defendant requests an instruction pertaining to a material issue, but the request is not in proper form, the court should give a correct instruction covering such issue. Thomas v. State, 13 Okla. Cr. 414, 164 P. 995.
For the reasons assigned, the case is reversed and remanded.
EDWARDS, J., concurs. CHAPPELL, J., dissents.