(after stating the facts). It is insisted upon the part of the State that “It is not necessary to show a criminal intent, since the statute itself defines what shall constitute the crime,” and to support this position, we are cited to the opinion by Chief Justice Cockrill in the case of Beard v. State, 43 Ark. 284, where he said: “The statute (disposing of mortgaged property) upon which the indictment in the case is based, makes it a crime to dispose of personal property under the particular circumstances. When a party voluntarily does the act prohibited, he is charged with the criminal intent of doing it, and no further intent need be shown. ’ ’ Seelig v. State, 43 Ark. 96; U. S. v. Ulrici, 3 Dillon, 532; Com. v. Nash, 7 Met. (Mass.), 472.
There was a strong dissenting opinion in that case by Justice Eakin, in which he contended that a conviction could be had only where the proof showed the sale was made with the intent to deprive the mortgagee of his debt. But the opinion in that case was based upon section 1693 of Mansfield’s Digest, which has since been amended by the act of March 7, 1893, which is carried into Kirby’s Digest as section 2011; and this section now expressly requires that the proof show that the sale, barter, exchange, removal or disposal of the property be made with the intent to defeat the holder of the lien in the collection of the debt secured thereby. Moreover, defendant was entitled to have the issue of his authority to sell the cotton submitted to the jury: If Jackson gave the defendant permission to sell the load of cotton in question, then such permission and the sale thereunder extinguished the mortgage lien thereon. Jackson could not waive his lien, and afterwards attempted to assert it in a criminal prosecution, because the disposition had not been made of the proceeds of the sale of the mortgaged cotton which should have been made. This prosecution and conviction was for disposing of mortgaged property and there was no mortgage lien after a sale had been made with the mortgagee’s assent.
The judgment in this case is therefore reversed and the cause remanded.