2 Ga. App. 696 | Ga. Ct. App. | 1907
Lead Opinion
The defendant may be guilty, but his guilt was not legally established. The burden of establishing his guilt devolves upon the State, and if he be guilty the fact can be shown, as it must be, by sufficient evidence. The evidence, as it appears in the record, not being sufficient to authorize a conviction of the violation of the labor act of 1903, we feel it to be our duty to grant a new trial. The learned trial judge erred in overruling the defendant’s motion for a new trial, for the reason that the verdict, so far as the evidence is concerned, is contrary to law. The only facts shown by the State, as disclosed bjr the record, were that the witness, Jones, paid $108 for Ambrose Fuller, and at the same time made a contract with said Fuller in behalf of his (Jones’) employer, Johnson, by the terms of which contract Fuller was to work twelve months for Johnson. The contract appears in the record, and is as follows:
‘'’Georgia, Sumter county. I, Ambrose Fuller, ’do solemnly swear that I am not under a written contract as emploj'ee, tenant, cr cropper, with any person for the period or any part thereof covered by the contract I am about to make with Mr. R. 17. Johnson. Signature of the affiant: Ambrose Fuller (his x mark). Sworn to and subscribed before me, this 12th day of December, 1906. Signature of attesting officer: G. E. Buchanan, N. P. S. Co., Ga.”
Taking the case as-we find it, the evidence shows that the defendant had worked nearly four months for the prosecutor upon the contract; and the only payment shown by the State and called an “advance” is the sum of $2. To make a ease which would authorize the jury to infer fraudulent intent, the State should have shown that the $10 a month for the time which had elapsed had been paid to the defendant, and that when he obtained the $2 he became thereby indebted just that amount, or some other amount which he had not repaid, either by working on his contract or by returning the money, and that thereby his employer had sustained a loss either of the $2 or some portion of it. There is no legal evidence showing that the defendant ever received anything from his employer except the $2, and all of the evidence is clear that he worked in pursuance of his contract from December 12, 1906, to . April 9, 1907. It is true that the prosecutor testified that this ’ $2 was an advance. It is insisted that the word “advance” necessarily means a payment of money which had not been earned, and, for that reason, that the use of that word by the witness establishes the fact that all pre-existing indebtedness for labor had been paid by the prosecutor to the 'defendant. We hold that such is a reasonable construction of the word “advance;” and yet the use of that word by the witness established nothing for the jury. The jury, instead of being given the facts upon which the witness based his conclusion, and from which they might have drawn an entirely different conclusion, were compelled to adopt a mere
Dissenting Opinion
dissenting. There is not the slightest disagreement among the members of this court as to the proposition that the act of 1903 is designed purely for the punishment of frauds, and that it is not to be perverted into an instrumentality of oppression or a. harsh remedy for the collection of debts. Yet the act, legally construed and fairly' applied, has a beneficial and useful purpose to subserve. As to the $108 advanced by the prosecutor before the labor began, it is plain that no legal conviction, can be based on it, under the circumstances of the present case. The defendant’s desertion of his contract of labor is too remote in point of time and circumstance to be evidentiary of any fraudulent intent at .the time that payment was made by the prosecutor; and in his opinion filed in the record the trial judge recognizes this to be true. See Mulkey v. State, 1 Ga. App. 521 (57 S. E. 1022). My brethren of this bench agree with me in the proposition that, if the $2 paid, to the defendant on the Saturday night before he left the prosecutor was in fact an advance under the contract, the defendant’s leaving without good excuse and without repaying the $2 might be evidentiary of an intent to cheat the prosecutor out of that sum, upon which theory the conviction could be sustained. But my colleagues say that there is no proof that this $2 was in fact an advance; and here comes the point of oui disagreement and my
Having paid the defendant $108 at the inception of the contract, the prosecutor owed the defendant nothing else thereunder until the ten months and twenty-four days expired, — for the wages were at the rate of $10 per month. Anything else paid him in the meantime was an advance. The question then stands out, “How is the laborer to support himself in the meantime ?” “Aye, there’s the rub!” If the defendant had left the prosecutor because the contract he had made was so hard that he could not live up to it in reasonableness and the prosecutor had refused to ameliorate the hardship by making advances or otherwise, the excuse for quitting would have been a good one and the defendant would have been exempt from criminality. But he presents no such excuse.