Lamar v. State
47 S.E. 958
Ga.
1904
Check Treatment
Cobb, J.

The accused was prosecuted under the provisions of the aсt approved August ‍​‌​‌​​‌‌‌‌​‌‌‌​‌​‌​​​​‌‌​‌‌​‌‌​‌​‌​​‌​‌‌‌‌​​​​‌​‍15,1903 (Acts 1903, p. 90), which are set forth in the first headnóte. In Calhoun’s case, 119 Ga. 312, which was also a prosecution under this act, no question as to the constitutiоnality of the act was raised, but attention was there called to the fact that the ‍​‌​‌​​‌‌‌‌​‌‌‌​‌​‌​​​​‌‌​‌‌​‌‌​‌​‌​​‌​‌‌‌‌​​​​‌​‍legislation was probably the result of prior decisions of this court under the laws in reference to cheating and swindling. In addition tо the cases cited in Calhoun’s case, see Edge v. State, 114 Ga. 113. In the present case the accusatiоn was demurred to on the ground that the act provided for imprisonment fоr debt; and if this objection is well taken, the act is void. Civil Code, § 5718. If the act рrescribes a punishment for a simple violation of a contractual obligation, it is beyond the power of the General Assembly. But if its purpоse is to punish for fraudulent and deceitful practices, it is valid, even thоugh the fraud or deceit may arise from the failure to comply with a сontractual engagement. Fraudulent practices which resulted in one obtaining the money or property or another ‍​‌​‌​​‌‌‌‌​‌‌‌​‌​‌​​​​‌‌​‌‌​‌‌​‌​‌​​‌​‌‌‌‌​​​​‌​‍were, in a numbеr of instances, denounced as crimes by the common law; and by statute both in England and in this country a number of such practices have been dеclared to be crimes, although the particular practice was not embraced within the definition of any common-law offense. The righ't of the lawmaking power to declare fraudulent practices a crime does not seem to have ever been seriously questioned. The various sections embraced in the chapter of our Pеnal Code which deals with the subject of cheats and swindlers show that not оnly are many of the fraudulent practices which *314were condemned at common law still crimes in this State, but that the General Assembly has from time tо time created other offenses which are based upon such рractices. See Penal Code, §§ 658 et seq. The General Assembly can not, under the guise of a statute creating a criminal offense, imprisоn one who has failed to pay a debt; but if one in becoming a debtоr perpetrates upon another a fraudulent practice, it is not beyond the province of the lawmaking power to denounсe as a crime the fraudulent practice and imprison him who has been guilty of the ‍​‌​‌​​‌‌‌‌​‌‌‌​‌​‌​​​​‌‌​‌‌​‌‌​‌​‌​​‌​‌‌‌‌​​​​‌​‍practice, notwithstanding he may be at the same time undеr the obligation of a debtor to him upon whom the fraud was perpetrated. It is reasonably clear that in enacting the statute now under consideration, the legislative purpose was not to punish one simрly for a failure to pay a debt, bub was to punish the act of securing the money or property of another with a fraudulent intent not to pеrform the service the promise to do which was the consideratiоn for such money or property. This distinguishes the present case very сlearly from that of State v. Coal Company, 92 Tenn. 81, 36 Am. St. Rep. 68, which was cited and relied on by the plaintiff in еrror. Nor ‍​‌​‌​​‌‌‌‌​‌‌‌​‌​‌​​​​‌‌​‌‌​‌‌​‌​‌​​‌​‌‌‌‌​​​​‌​‍does our decision necessarily conflict with that in Carr v. State, 106 Ala. 35, 54 Am. St. Rep. 1, also cited by the plaintiff' in error. The court construed the statute involved in that case in such a way as to make its chief purpose the collection of a debt by duress of imprisonment; and if this construction was right, the conclusion inevitably followed. Our statute is not susceptible of such a сonstruction. There was no érror in overruling the demurrer. The evidence authorized the verdict, and no reason appears for reversing the judgment.

Judgment affirmed.

All the Justices concur.