GOOLSBY v. STATE
6 Div. 627
Court of Appeals of Alabama
May 19, 1925
Rehearing Denied June 30, 1925
20 Ala. App. 654 | 104 So. 906
Let the judgment be reversed, and the cause be remanded.
Reversed and remanded.
BRICKEN, P. J., not sitting.
(104 So. 906)
GOOLSBY v. STATE. (6 Div. 627.)
(Court of Appeals of Alabama. May 19, 1925. Rehearing Denied June 30, 1925.)
1. False pretenses 2 — Act making fact that insufficient funds on deposit at time instrument presented for and refused payment prima facie evidence of fraudulent intent on part of maker or drawer held unconstitutional.
In view of
2. Courts 210 — Court of Appeals, on certification of Supreme Court‘s response to question of constitutionality of statute, may proceed to final judgment under statute as construed.
Under
3. False pretenses 2 — Statute providing punishment for fraud amounting to false pretense in obtaining money by order which is not paid constitutional.
Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge.
C. P. Goolsby was convicted of obtaining money on a draft which was not paid, with intent to defraud, and he appeals. Reversed and rendered.
See, also, Goolsby v. State, 104 So. 901.
Reuben H. Wright and Leigh M. Clark, both of Tuscaloosa, for appellant.
A law which makes one fact prima facie evidence of guilt or fraudulent intent, without providing that the accused may give in evidence his uncommunicated intent, deprives him of the right to answer the accusation, and denies him due process of law. 12 C. J. 1205; Bailey v. Ala., 219 U. S. 227, 31 S. Ct. 145, 55 L. Ed. 191; M., J. & K. C. v. Turnipseed, 219 U. S. 38, 31 S. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463; Opinion of Justices, 208 Mass. 619, 94 N. E. 1044, 34 L. R. A. (N. S.) 771; McFarland v. Am. Sugar Ref. Co., 241 U. S. 79, 36 S. Ct. 498, 60 L. Ed. 899; McCormick & Richardson v. Joseph & Anderson, 77 Ala. 236; Wheless v. Rhodes, 70 Ala. 419; Whizenant v. State, 71 Ala. 383; Burke v. State, 71 Ala. 377; Holmes v. State, 136 Ala. 80, 34 So. 180. The law providing imprisonment for debt is void.
Harwell G. Davis, Atty. Gen., Lamar Field, Asst. Atty. Gen., and Thos. C. McClellan, of Birmingham, for the State.
The indictment is not subject to demurrer. Ex parte King, 102 Ala. 182, 15 So. 524; Chauncey v. State, 130 Ala. 71, 30 So. 403, 89 Am. St. Rep. 17. Constitutionality of a statute will not be considered, unless essential to the disposition of a case. 3 Michie‘s Ala. Dig. 205. The Supreme Court alone has jurisdiction to dispose of this appeal.
BRICKEN, P. J. This appellant, defendant in the court below, was indicted, tried, and convicted for the violation of an act of
Upon a study of this question the writer became convinced that this insistence was well taken, and reached the conclusion that the judgment of conviction could not stand for that reason. This court thereupon made and entered the following order, certifying the question to the Supreme Court as under the statute made and provided:
“Certificate to the Supreme Court from the Court of Appeals of Alabama.
“Under the provisions of the statute (
Code 1923, § 7322 ), the following question is submitted to the Supreme Court for determination: Is the act of the Legislature of Alabama approved November 1, 1921 (Acts Ala. Sp. Sess. 1921, pp. 47, 48 ), violative of the Constitution of Alabama?“The caption of said act is as follows: ‘To make it unlawful for any person to obtain money or other property or credit by check, draft or order which is not paid by the drawee; and where the same is not refunded or restored by such person on written demand mailed to his last known address; and to make the fact of such person not having on deposit with the drawee such money or other property prima facie evidence of said fraudulent intent.’
“A cause dependent upon this proposition solely is pending in this court.
“C. R. Bricken,
“Presiding Judge.
“Wm. H. Samford,
“James Rice,
“Judges.“Certified on this 12th day of March, 1925.”
The Supreme Court (all Justices concurring) agreed with this court that the act in question is unconstitutional, and in reply to the above-mentioned certification of this question made the following response, which is conclusive of this appeal:
Response of Supreme Court to Certified Question.
THOMAS, J. The act of 1915 (
[1] The act of 1915 was given consideration in Hotel Supply Co. v. Reid, 16 Ala. App. 563, 80 So. 137, where the suit was for damages for malicious prosecution, and the observation is there made as to the evidence:
“While the evidence shows that there were no funds on deposit to plaintiff‘s credit at the bank on which the check made the basis of the prosecution was drawn, the evidence is in conflict as to whether this was known to the defendant at the time the check was given, and as to whether the defendant procured the check to be given and postdated with the knowledge that the plaintiff was without funds on deposit to pay the check. * * * ”
And it was held that “defendant was therefore not entitled to the affirmative charge.” This case is cited with approval — where design was omitted from an Arizona statute — in George v. Williams (Ariz.) 222 P. 411, a charge of false prosecution where the ingredient of knowledge was left out; held, the charge was “lacking in substance.”
In Gustin v. State, 19 Ala. App. 558, 99 So. 54, the indictment conformed substantially to the provisions of the act approved August 31, 1915 (
For illustration of the application of the statutes and the rules of evidence obtaining, we advert to the pleading and defendant‘s evidence thereunder. For convenient reference we take the indictment from the brief before us. It is within the provisions of the act of 1921, charging that defendant did “with intent to defraud” obtain from the hotel the sum of money named, “by means of a draft, of which he was the maker or drawer and which draft was not paid by the drawee,” setting out that instrument, and concluding with the averment that “seven” days’ written notice has been given to the said C. P. Goolsby [defendant] of the drawee‘s refusal or failure to pay said draft, and the same has not been paid against the peace and dignity of the state of Alabama.” (Italics supplied.)
Under this pleading, the state having made out the prima facie proof under the statute and closed its evidence, the defendant testified:
“The bank on which the draft in question was drawn had been in the habit of paying my drafts for many months prior to the date on which this draft was drawn, and later I took their other drafts up. I assumed that they would pay this one.”
Thereupon the following transpired, as shown by brief of counsel:
“Defendant‘s counsel asked witness this question: ‘Did you or not intend to defraud McLester Hotel or the two Snows when you gave them the draft and got their money?’ The state objected, on the ground that witness could not testify to his uncommunicated motive or intention, and the court sustained the objection, and defendant excepted. Defendant then offered to show that he had no intention to defraud McLester Hotel when he gave the draft in question, but the court refused to allow this, and defendant again duly and legally excepted.
“Defendant‘s counsel asked the witness the following question: ‘What was your intention at the time you gave the draft in question to McLester Hotel?’ The state objected, on the ground that witness could not testify to his uncommunicated motive or intention, and the court sustained the objection, and defendant excepted. Defendant then offered to show that he had no intention to defraud McLester Hotel when he gave the draft in question, but the court refused to allow this, and defendant again duly and legally excepted.”
Insisting that his conviction is unlawful, defendant contends that the cases cited by the Attorney General are without application; the state citing Ex parte King, 102 Ala. 182, 15 So. 524, and Chauncey v. State, 130 Ala. 71, 30 So. 403, 89 Am. St. Rep. 17. In those cases the indictments were under statutes providing against the obtaining of board and lodging by false representation — “fraud or misrepresentation.”
The statute condemned (
“The payment back to the depositor of the bank notes, specie money, or other thing of value, deposited before the conviction hereunder, and the court costs thereof, which may have accumulated, shall be a good and lawful defense to any prosecution under this act.”
Mr. Justice McClellan, in the Carr Case, supra, adverted to the distinction, found in the provision of our present Constitution as
In Ex parte Russellville, 95 Ala. 19, 11 So. 18, and In re Hurley, 95 Ala. 19, 11 So. 18, the provision of the city charter, condemned as being offensive to the stated provision of the Constitution, sought to authorize, in default of payment of the fine and costs imposed on conviction, hard labor or imprisonment “until the fine and costs are paid.” Mr. Justice McClellan said of the
“The statute involved in the case at bar is a much more flagrant attempt to authorize imprisonment for debt, in our opinion, than that denounced by the Supreme Court of Tennessee. State v. Paint Rock Coal & Coke Co., 92 Tenn. 81 [20 S. W. 499], 36 Am. St. Rep. 68. It was not the avowed purpose of that act to enforce the payment of a debt by means of a prosecution under it. This one cannot be read without conviction that its purpose is to impose imprisonment for debt, and to coerce the payment of a debt by the duress it authorizes. Its requirement that the fine shall be paid only in money, that it shall be double the amount of deposit, and that one-half of it — that is, a sum equal to the amount deposited — shall go to the person who made the deposit, tends, at least, to show that coercion of payment of the debt which the depositary owed the depos-
itor, for the transaction created the relation of debtor and creditor between them, by means of the restraint which the imposition of the fine itself immediately put upon defendant, not speak here of his imprisonment preliminary to the trial, and that failing to enforce payment, by means of imprisonment at hard labor for the payment of the fine and costs, was the moving purpose and efficient cause of the enactment of the statute. And what doubts on this point might have been left, had the statute stopped here, are removed beyond peradventure by its further provision that payment to the depositor at any time before conviction ‘shall be a good and lawful defense to any prosecution under this act.’ There cannot be two opinions as to the intent and meaning, or the effect upon the whole enactment, of this last and most remarkable provision. It is a declaration of the baldest and most direct character to one party to a transaction whereby he has incurred a debt to the other, in the name of the state, that unless he pays that debt he shall be arrested, held to trial, tried, convicted, fined, and imprisoned at hard labor, and this obviously not for any taint of criminality in the transaction out of which the debt arose, but purely and simply for the nonpayment of the debt.” Carr v. State, 106 Ala. 35, 39, 40, 17 So. 350, 351, 34 L. R. A. 634, 54 Am. St. Rep. 17.
This last case has not been departed from in this jurisdiction. In Bailey v. State, 161 Ala. 75, 81, 49 So. 886, 888, Mr. Justice Denson said of that case:
“The Carr Case arose under a statute dissimilar to the one sub judice, as will be seen from a reading of the two statutes. The statute in that case held void sought to make the mere receiving, by a bank officer, of money for deposit, with knowledge at the time that the bank was in a failing or insolvent condition, a misdemeanor. It not only disregarded the intent of the person receiving the money, but provided that the fine which might be assessed on conviction should not be less than double the amount of the deposit. * * * ”
The last-named case was taken by writ of error to the Supreme Court of the United States, and the decisive opinion is to be found reported as Bailey v. State of Alabama, 219 U. S. 219, 31 S. Ct. 145, 55 L. Ed. 191. The decision by this court (161 Ala. 75, 49 So. 886), upholding the constitutionality of the statute (
“Was not the case the same in effect as if the statute had made it a criminal act to leave the service without just cause and without liquidating the debt? To say that he has been found guilty of an intent to injure or defraud his employer, and not merely for breaking his contract and not paying his debt, is a distinction without a difference to Bailey. Consider the situation of the accused under this statutory presumption. If, at the outset, nothing took place but the making of the contract and the receipt of the money, he could show nothing else. If there was no legal justification for
his leaving his employment, he could show none. If he had not paid the debt, there was nothing to be said as to that. The law of the state did not permit him to testify that he did not intend to injure or defraud. Unless he were fortunate enough to be able to command evidence of circumstances affirmatively showing good faith, he was helpless. He stood stripped by the statute of the presumption of innocence and exposed to conviction for fraud upon evidence only of breach of contract and failure to pay.”
In application of the foregoing to the statute, tested by organic law, it is noted that a prima facie presumption created by the Legislature in practical effect might prove conclusive or irresistible, and strip a defendant, by reason of such statute, “of the presumption of innocence” (Bailey v. Alabama, 219 U. S. 219, 234, 31 S. Ct. 145, 55 L. Ed. 191), and expose him to conviction for fraud, when fraud has not been shown, but merely that there was not sufficient money in the bank to cover the check, order, or draft, not at the time the same was drawn, but at the time the same was presented for and refused payment. It is not the implication that there were sufficient funds in bank when the check, order, or draft was drawn to warrant payment that affects the present question; that question being the constitutionality vel non of a law which makes one fact prima facie evidence of a fraudulent intent, without providing that the accused may give in evidence his circumstances and uncommunicated intent when so acting, which in reality deprives the accused of the right to make full answer to the accusation supported by the prima facie rule of evidence created by the statute. Bailey v. Alabama, 219 U. S. 219, 31 S. Ct. 145, 55 L. Ed. 191; Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219 U. S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463.
In Holmes v. State, 136 Ala. 80, 34 So. 180, McCormick v. Joseph, 77 Ala. 236, Wheless v. Rhodes, 70 Ala. 419, Whizenant v. State, 71 Ala. 383, and Burke v. State, Id. 377, the fact is touched upon that the defendant is not allowed to testify to his uncommunicated motives, purpose or intention, and such is not allowed under the statute for the purpose of rebutting the statutory presumption. Bailey v. State, supra. A casual examination of the statute (
“That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed. If a legislative provision, not unreasonable in itself, prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that ‘due process of law’ has been denied him.” Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219 U. S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 80, 81, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463.
What, then, is the last expression of the legislative will in this state on the subject for decision?
“That upon the trial of any person charged with violating this act, the defendant shall be a competent witness to testify to his circumstances and intent when he drew the check or draft.”
Acts 1915, p. 319, § 2 ;Code 1923, § 4160 .
It seems to us that the decisions of Carr v. State, 106 Ala. 35, 17 So. 350, 34 L. R. A. 634, 54 Am. St. Rep. 17, and Bailey v. State of Alabama, 219 U. S. 219, 31 S. Ct. 145, 55 L. Ed. 191, are conclusive of the unconstitutionality of the act approved November 1, 1921 (
All the Justices concur.
Under the authority of the Supreme Court of Alabama, in response to the inquiry submitted, the judgment of the lower court appealed from is reversed. As there can be no, conviction under the indictment in this case, a judgment is here rendered discharging the defendant from further custody in this proceeding.
Reversed and rendered.
Additional Response by Supreme Court on Rehearing.
THOMAS, J. Distinguished counsel urges that a question of jurisdiction is for decision. Under the codification of the acts of 1911 defining the jurisdiction and powers of the Court of Appeals (
[2] To a full understanding of the question before us it should be noted that the former statute “to establish the Court of Appeals,” among other things, provided:
” * * * That if the validity of a statute of this state or of the United States is involved said Court of Appeals shall so certify and thereupon the transcript and all papers in said cause, with such certificate shall be transmitted to the Supreme Court and all proceedings conducted thereafter as if said cause had been appealed originally to said Supreme Court: Provided, further, that if the judges of said court are unable to reach a unanimous conclusion, or decision, in any case or matter before them, any one of said judges may certify to the Supreme Court any question or questions of law as to which said judges differ, stating such questions as abstract propositions, and the Supreme Court shall give its opinion upon the question so certified, and the opinions thus given by the Supreme Court shall be given the same effect by said Court of Appeals as it is required to give to the decisions of said Supreme Court.”
Acts 1911, p. 96 .
The latter act had for its purpose the regulation of appeals and the construction of the validity of statutes by the Supreme Court and the Court of Appeals, and it contained the provision:
“That before the Court of Appeals should strike down any statute, federal or state, not previously nullified by the Supreme Court, the question involving the validity of same must be submitted to the Supreme Court for determination, the result shall be transmitted to the Court of Appeals, which said court shall be controlled in its decision by the determination of the Supreme Court: Provided, however, that when a statute has been assailed upon constitutional grounds, in the Court of Appeals, and is upheld by said court, the aggrieved party may review the ruling of the Court of Appeals in this particular, by a writ of error to the Supreme Court, unless the question was previously submitted to the Supreme Court by the Court of Appeals.”
Acts 1911, p. 449 .
Thus the last act was a modification of the first in respect to the question, not of jurisdiction to declare a statute, state or federal, unconstitutional, but of the procedure to judgment after the constitutionality vel non of the statute has been declared by this court; that is to say, the acts before us, in legal effect, have been treated by this court and the Court of Appeals, in the due procedure of many causes, to the ascertainment of the constitutionality vel non of a statute necessary to a decision of a pending cause within the jurisdiction of the Court of Appeals, where the attack on the statute had not theretofore been settled by this court. The construction, by way of implication, by this court of certifications by Court of Appeals, of the constitutionality vel non of many important statutes, and the replies thereto transmitted to the Court of Appeals, and thereafter the procedure to judgments in the latter court in accordance with our decision in the premises, was before the adoption of the Code of 1923.
For this due procedure to judgment in the Court of Appeals there is authority. Banks v. State, 207 Ala. 179, 93 So. 293, 24 A. L. R. 1359; State v. Williams, 207 Ala. 517, 93 So. 381; State v. Goldstein, 207 Ala. 569, 93 So. 308; L. & N. R. Co. v. State (Headlight Case) 16 Ala. App. 199, 76 So. 505, 510; Western U. T. Co. v. Beasley, 205 Ala. 115, 87 So. 858; Acuff v. Weaver, 17 Ala. App. 532, 86 So. 167; Thomas v. State, 16 Ala. App. 145, 75 So. 821; Hudgens v. State, 15 Ala. App. 156, 72 So. 605; Rogers v. White, 14 Ala. App. 482, 70 So. 994; McLendon v. State, 6 Ala. App. 19, 60 So. 406; Id., 179 Ala. 54, 60 So. 392, Ann. Cas. 1915C, 691; Lovejoy v. City of Montgomery, 9 Ala. App. 466, 61 So. 600; Id., 180 Ala. 473, 61 So. 597. When this court decides the
[3] We may add to the original opinion that we entertained no doubt of the constitutionality of the Act of 1915, codified as sections
This response will be certified to the Court of Appeals.
Application overruled.
All the Justices concur.
BRICKEN, P. J.
This appellant, defendant in the court below, was indicted, tried, and convicted for the violation of an act of the Legislature known as the “bad check law.”
Before entering upon the trial, the defendant, by appropriate demurrer, attacked the validity of said act of the Legislature, and contended that it was unconstitutional, and that a conviction thereunder was void, etc. These demurrers were overruled, and this action of the court presents the material inquiry upon this appeal.
The insistence of appellant in this connection is correct and must be sustained. The act of the Legislature upon which the conviction of appellant rested is unconstitutional, void, and of no effect; therefore the judgment of conviction appealed from must be reversed, and as the verdict of the jury operated as an acquittal of the defendant under all counts of the indictment, except counts 5, 6, and 7, which were drawn under the act in question, and as no conviction can be had upon an indictment based upon said act, a judgment is here rendered discharging the defendant from further custody in this proceeding.
This opinion is rendered upon the authority of C. P. Goolsby v. State (6 Div. 627, Ala. App.) 104 So. 906. In the Goolsby Case, supra, the response of the Supreme Court to an inquiry from this court expressly declares the act in question as being in violation of the Constitution.
Reversed and rendered.