104 So. 771
Ala. Ct. App.
1924

John D. McCRARY v. STATE

7 Div. 68

Court of Appeals of Alabama

May 26, 1925

20 Ala. App. 660 | 104 So. 912

BRICKEN, P. J.

question propounded by the Court of Appeals as to the constitutionality vel non of a statute, and the response thereto is certified to the Court of Appeals, it is within its established jurisdiction (and according to the statute and procedure heretofore established and acted upon by the two courts) to proceed to the final judgment in said pending cause, under the statute as construed by this court.

[3] We may add to the original opinion that we entertained no doubt of the constitutionality of the Act of 1915, codified as sections 4159, 4160, of the Code of 1923, providing punishment for fraud or misrepresentations which amount to false pretense in the matter indicated, and this was and may be done within the provisions of state and federal Constitutions.

This response will be certified to the Court of Appeals.

Application overruled.

All the Justices concur.

Appeal from Circuit Court, Talladega County; S. W. Tate, Judge.

John D. McCrary was convicted of obtaining property by means of a check which was not paid, and he appeals. Reversed and remanded.

Riddle & Riddle, of Talladega, and J. J. Cockrell, of Lineville, for appellant.

The act is an attempt to imprison for debt and is void. Const. 1901, § 20; Carr v. State, 106 Ala. 35, 17 So. 350, 34 L. R. A. 634, 54 Am. St. Rep. 17; Ex parte Hardy, 68 Ala. 303; State v. Paint Rock C. & C. Co., 92 Tenn. 81, 20 S. W. 499, 36 Am. St. Rep. 68; Ex parte Russellville, 95 Ala. 19, 11 So. 18; State v. Brewer, 38 S. C. 263, 16 S. E. 1001, 19 L. R. A. 362, 37 Am. St. Rep. 753; Smith v. State, 82 Ala. 40, 2 So. 629.

Harwell G. Davis, Atty. Gen., and J. B. Sanford, of Talladega, for the State.

The act under which this conviction was had is not in violation of the Constitution. Gustin v. State, 19 Ala. App. 558, 99 So. 54; State v. Avery, 111 Kan. 588, 207 P. 838, 23 A. L. R. 453.

BRICKEN, P. J. The indictment in this case contained seven counts. The conviction of this appellant, defendant in the court below, was under counts 5, 6, and 7 of the indictment, each of which, with varying phraseology, charged a violation of the act of the Legislature known as the “bad check law.” Acts Sp. Sess. 1921, pp. 47, 48.

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. 906.1 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.

Notes

1
Ante, p. 654.