169 Ga. 515 | Ga. | 1929
Lead Opinion
This is a habeas-corpus caso, brought by W. F. Carter, who alleged as follows: He is illegally held and restrained of his liberty, by being confined in the Fulton County jail by James I. Lowry, sheriff of said county. He was tried and convicted on February 13, 1927, in the criminal court of Atlanta, on an accusation that he “did utter and deliver said check to the Sinclair Sales Co., a corporation, knowing at the time he did so that accused did not have sufficient funds in the said the Fulton National Bank, or credit with the said bank, for the pajunent of the said check upon its presentation: all of which was done with intent to defraud the said the Fulton National Bank and the Sinclair Sales Co.” The accusation was based upon a law known as the bad-clieck law passed by the legislature (Ga. L. 1924, p. 194), which declares: “That any person who, with intent to defraud, shall make, or draw, or utter, or deliver any check, draft, or order for the payment of money upon airy bank, or other depository, knowing at the time of such making, drawing, uttering, or delivering that the maker or drawer has not sufficient funds in or credit with such bank, or other depository, for the payment of such check, draft, or order upon its presentation, shall be guilty of a misdemeanor. The making, drawing, uttering, or delivering of such check, draft, or order as aforesaid shall be prima facie evidence of intent to defraud. The word 'credit’ as used herein shall be construed to mean an arrangement or understanding with the bank or depository for the payment of such check, draft, or order.” This act is alleged to be unconstitutional and void as in conflict with the provisions of par. 3 of sec. 1 of art. 1 of the constitution of the State, that “No person shall be deprived of life, liberty, or property, except by due process of law.” Also, the act is in conflict with par. 1 of sec. 2 of art. 1 of the constitution, which provides: “In all prosecutions or indictments for libel, the truth may be given in evidence; and the jury in all criminal cases shall be the judges of the law and the facts. The power of the judges to grant new trials in case of conviction is preserved.” It is alleged that the act deprives the jury of the right to judge the law and the facts, and is unreasonable and arbitrary in that it takes away the right of the jury to determine the guilt or innocence of the accused, the act being tantamount in effect to commanding the jury to convict in the event the check is not paid upon presentation at the bank; that the presumption created by the act is so un
An act similar to the act of 1924 was construed by this court in Berry v. State, 153 Ga. 169, 171 (111 S. E. 669, 35 A. L. R. 370). In delivering the opinion Mr. Justice Hines said: “It is urged by counsel for the defendant that section 34 of the act of August 16, 1919 (Ga. L. 1919, pp. 135, 220); is in conflict with art. 3, sec. 7, par. 17, of the constitution of this State, . . because this act amends or repeals the act of August 14, 1914 (Ga. L. 1914, p. 86), which makes it a misdemeanor to draw and utter any check, draft, or order, when the drawer has not at the time sufficient funds to meet the same) provided such drawer does not deposit with the drawee sufficient funds to meet the same within thirty days.’ . . Upon proof of the above facts the presumption arises that the making, uttering, drawing, or delivering of either of such instruments was done with intent to defraud. The burden would then be upon the defendant to establish that such instrument was not made, drawn, uttered, or delivered with intent to defraud. This presumption is a rebuttable one. The defendant would be relieved of this burden if it should appear from the evidence introduced by the State that he was not actuated by an intent to defraud in making, drawing, uttering, or delivering any one of such instruments. The presumption in this case is similar to the presumption of malice in homicide eases, in which it has been held that the presumption may be negatived by the proof submitted by the State. Futch v. State 90 Ga. 472 (16 S. E. 102); Green v. State, 124 Ga. 343 (52 S. E. 431); Mann v. State, 124 Ga. 760 (53 S. E. 324, 4 L. R. A. (N. S.) 934).” It will be observed that the language of the act of
The plaintiff in error relies upon the case of Manley v. State, 279 U. S. 1 (supra) as being controlling of the present case, but we are of the opinion that' the act which was construed in the Manley ease is different from the act now under review. In that case the Supreme Court of the United.States said: “State legislation declaring that proof of one fact, or a group of facts, shall constitute prima facie evidence of the main or ultimate fact in issue, is valid if there is a rational connection between what is proved and what is to be inferred. If the presumption is not unreasonable, and is not made conclusive [italics ours] of the rights of the person against whom raised, it does not constitute a denial of due process of law. Mobile, J. & K. C. R. R. v. Turnipseed, 219 U. S. 35, 43. A prima facie presumption casts upon the person against whom it is applied the duty of going forward with his evidence on the particular point to which the presumption relates. A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the fourteenth amendment. Bailey v. Alabama, 219 U. S. 233 et seq. Mere legislative fiat may not take the place of fact in the determination of issues, involving life, liberty, or property. Ut is not within the province of a legislature to declare an individual guilty or presumptively guilty'of a crime.’ McFarland v. American Sugar Co.. 247 U. S. 79, 86. The presumption here involved does not rest upon any definite basis. It is raised upon proof of any one or more of the conditions described as insolvency and without regard to the facts from which such condition resulted. The statute does not specify
In the instant case, the act of 1924 requires the State to prove the making, uttering, or delivering a check upon a bank, with the knowledge by the defendant that he did not have sufficient funds in such bank or “credit” with it for the payment of such check upon presentation. Upon proof of these facts the act declares it “shall he prima facie evidence” that the drawing or uttering of such check, etc., was with intent to defraud. It can not be held that there is no logical connection between the facts alleged and proved and the fact presumed. The relation between the two is .obvious. If one draws a check and utters it, and obtains something of value by reason thereof, knowing at the time that he has not sufficient funds in the bank on which the cheek is drawn, nor “credit” at the bank, for the payment of the check, the natural and logical inference is that the act was done with intent to defraud; and it seems to us that there is nothing unreasonable about such a presumption. The fact presumed is the natural and logical result of the facts which must first be proved by the State.
Neither is the decision in Western & Atlantic R. Co. v. Henderson, 279 U. S. 639 (supra), which reversed the decision of the Supreme Court of Georgia in Western & Atlantic R. Co. v. Henderson, 167 Ga. 22 (144 S. E. 905), controlling. The facts in that case were different from the facts in the present case. There the question presented was whether the due-process clause of the fourteenth amendment to the constitution of the United States is violated by Civil Code § 2780, which is as follows: “A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, or cars, or other
A case somewhat similar to the instant one is that of Smith v. State, 141 Ga. 482 (3) (81 S. E. 220, Ann. Cas. 1915C, 999), where it was held that the act of 1910 (making it a misdemeanor to obtain food, lodging, or other accommodations at any hotel, inn, boarding-house, or eating-house, in this State, with intent to defraud the owner or keeper of the same), considered in its entirety, is not violative of the fourteenth amendment to the constitution of the United States. It was insisted in that case that the presumption created by the statute was unreasonable and arbitrary and amounted to a denial of due process of law, in violation of the fourteenth amendment to the constitution of the United States. It was said: “That proof that food, lodging, or other accommodation was obtained by false pretense, or by false or fictitious show or pretense of any baggage or other property by such person obtaining such food, lodging, or other accommodations; or that such person absconded without paying or offering to pay for such food, lodging, or other accommodation; or that such person gave in payment for such food, lodging, or other accommodation any check or draft made payable at sight, on demand, or on a date not subsequent to the date when the same is drawn, on which check or draft payment was refused on presentation; or that such person surreptitiously removed or attempted to remove his baggage or other property brought with him to such hotel, inn, boarding-house, or eating-house therefrom, without having paid for or having offered to pay for such food, lodging, or other accommodation so furnished Mm, shall be prima facie evidence of the fraudulent intent mentioned in section one of this act.” It will be observed that the act of 1924, supra, provides that “the making, drawing, uttering, or delivering of such check, draft, or order as aforesaid shall be prima facie evidence of intent to defraud!' (Italics ours.) That is to say, the act so provides as to the making or uttering of such check with Iciioiuledge that the drawer has not sufficient funds or credit, for such knowledge on the part of the
The power of the legislature to make certain specified acts prima facie proof of the guilt of the accused, within proper limitations, has been declared by this court. Griffin v. State, 142 Ga. 636 (83 S. E. 540, L. R. A. 1915C, 716, Ann. Cas. 1916C, 80); Fordham v. State, 148 Ga. 758 (98 S. E. 267); Hawes v. State, 150 Ga. 101 (103 S. E. 170). So we are of the opinion, that under the facts of this case, and in view of the authorities cited, the act of 1924 is not unconstitutional or void for any of the reasons assigned, and that the court did not err in denying the prayers of the petition and in remanding the petitioner to the custody of the sheriff.
Judgment affirmed.
Dissenting Opinion
dissenting. Without reference to, or consideration of, some of the grounds urged by the plaintiff in error, I am of the opinion that under the rulings of the Supreme Court of the United States in Manley v. State, and Western & Atlantic Railroad v. Henderson, referred to in the majority opinion, the act of 1924 under consideration offends the due-process clause of the fourteenth amendment to the constitution of the United States. Under the principles stated in these rulings, the mere drawing of a check upon a bank in which the drawer has no funds, and the fact that he has no credit or has made no arrangement with the