Bailey v. State, 48 So. 498

Bailey v. State

48 So. 498 | Ala. | 1908

DENSON, J.

Alonzo Bailey, after a preliminary trial had before B. C. Young, a justice of the peace in Montgomery county, on a charge frnade against him for obtaining $15 under a contract in writing, with intent to injure or defraud his employer, was regularly committed for said offense to the custody of the sheriff of said county, for detention until he should be legally discharged. lie was received into custody by the sheriff, and by him imprisoned in the county jail on the 6th day of April, 1908. On the 14th day of April Bailey applied to the Hon. William H. Thomas, associate judge of the city court of Montgomery, for his discharge by the writ of habeas corpus. On the hearing the judge fixed bail at $150, but refused to discharge the petitioner absolutely. Prom the order refusing his discharge the applicant comes here by appeal.

The law under which the applicant was charged with crime, and under Avhich the commitment Avas made, is an act entitled “An act, to amend an act entitled an acl to amend section 4730 of the Criminal Code of 189S approved October 1, 1903.” — Gen. Acts 1907, p.. 636 *23The statute, in its form as section 4730 of the Code of 1896, came before this court for construction in the case of Ex parte Riley, 94 Ala. 82, 10 South. 528, and there it was clearly pointed out that a mere breach of contract is not by the statute made a crime, but that the criminal feature of the statute consists in the entering into a contract with the intent to injure or defraud the employer, and the refusal of the employe to perform the contract, with a like intent. — Dorsey’s Case, 111 Ala. 40, 20 South. 629; McIntosh’s Case, 117 Ala. 128, 23 South. 668. In neither of the cases cited was the constitution ality of the statute presented for consideration; but in the case of State v. Vann, 150 Ala. 66, 43 South. 357, the constitutionality of the statute, as section 4730 of the Code of 1896, was presented for determination, and it was there insisted that the statute was obnoxious to the twentieth section of the Bill of Bights of 1901, which is in this language: “That no person shall be imprisoned for debt.” The insistence was overturned, and the statute was held not to be unconstitutional, the court, as the basis of the ruling, again pointing out the fact that “a mere breach of contract is not by the statute made a crime,” but that the criminal feature consists in the intent to injure or defraud. This intent to injure or defraud marks the line of cleavage between the statute in judgment and the one approved March 1, 1901 (Acts 1900-01, p. 1208), which made it a misdemeanor for any person, who had contracted in writing to labor for or serve another for any given time, etc., and who, before the expiration of such contract; and without the consent of the other party, and without sufficient excuse (to be judged by the court), shall leave such other party, etc. This last statute was by Judge Jones of the federal court held to be obnoxious to the state Constitution (Peonage Cases [D. O.] 123 Fed. 671); and was by this *24court held to be unconstitutional in Toney’s Case, 141 Ala. 120, 37 South. 332, 67 L. R. A. 286, 109 Am. St. Rep. 23, because of the restrictions it attempts to place on the right to make contracts. These two cases are now urged as authority in support of the insistence of appellant that the statute under consideration is violative of the Constitution, and we are asked to overrule the Vann Case, supra. While it is clear that a mere breach of contract cannot be made the foundation for a criminal offense, and that undue restrictions cannot be placed on the right of an individual to enter into contracts, yet when the individual enters into a contract, with the intention to perpetrate a fraud, it is equally obvious that he passes over the constitutional boundary line in respect to the free right to contract; and it is within legislative competency to enact a law penalizing the entering into a contract with such intent, and obtaining" money or other personal property through such agency. This is all that is effectuated by the legislation in question. On its face the purpose is to punish fraudulent practices, not the mere failure to pay a debt, Thus considered, it is constitutional. Without further extension of the argument we not only decline to depart from the ruling made in Vann’s Vase, on this subject, but reaffirm it. — Banks v. State, 124 Ga. 15, 52 S. E. 74, 2 L. R. A. (N. S.) 1007.

In Ex parte Riley, 94 Ala. 82, 83, 10 South. 528, 529, it was said: “As the intent is the design, purpose, resolve, or determination in the mind of the accused, it can rarelv be proved by direct evidence, but must be ascertained by means of inferences from the facts and circumstances developed by the proof. In the absence, however, of evidence from which such inferences may be drawn, the jury are not justified in indulging in mere unsupported conjectures, speculations, or suspi*25cions as to the intentions which were not disclosed by any visible or tangible act, expression, or circumstances.” It is no doubt true that the difficulty in proving the intent, made patent by that decision, suggested the amendment of 1908 (Gen. Acts 1903, p. 345) to the statute, which provides that the refusal or failure of a person who enters into such contract to perform such act or service, or refund such money, or pay for such property, without just cause, shall be prima facie evidence of the intent to injure or defraud his employer. This amendment has twice been declared by this court to be a constitutional enactment. — Thomas’ Case, 144 Ala. 77, 40 South. 271, 2 L. R. A. (N. S.) 1011, 113 Am. St. Rep. 17; Vann’s Case, 150 Ala. 66, 43 South. 357. However, these cases are here assailed, and the conclusions reached therein are vigorously combated in' brief of appellant’s counsel. A re-examination of those cases, together with the consideration of others, has not only not shaken our faith in the correctness of the conclusion there reached, but confirmed it, and we decline to recede therefrom. — Banks v. State, 124 Ga. 15, 52 S. E. 74, 2 L. R. A. ( N.S.) 1007.

We have discussed all questions presented by the record, and conclude that there is no error shown.

The order appealed from is affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.