16 Ga. App. 370 | Ga. Ct. App. | 1915
The accused was convicted of a violation of section 715 of the Penal Code, commonly known as the “labor-eon-tract law.” The accusation contained two counts. The first count alleged fraudulent intent in obtaining $7 at the time the contract was alleged to have been made, and the second alleged fraudulent intent in obtaining $2.50 on the day following that on which the contract was made. It was proved that the first advance was made in Bichmond county, and the prosecution was proceeding in Lincoln county, and for that reason, of course, the State insisted upon a conviction under the second count only. Aside from the fact that the prosecutor did not testify that the advance of $2.50 was made upon the faith of the contract, his evidence would have authorized a conviction of the accused. The only witness for the State testified to facts relating to the contract made in Augusta, in Bichmond county. The defendant made no statement at the trial, but one Butler, testifying in his behalf, swore that the defendant had worked for him on halves in the year preceding that which was the subject of the contract in question, and that prior to the defendant’s meeting with the prosecutor in Augusta, the witness had made a contract with the defendant for the year 1914 (the period embraced in the contract alleged to have been fraudulently entered into), and had advanced to him $4.50 in money on his contract for 1914, as well as allowed him, under the contract, 15 days’ work which the defendant was owing the witness. This witness testified, that the defendant lived on his place and asked him to let him off for a week or ten days to go to Augusta. When the defendant got back from Augusta he told the witness of his arrangement with Walton, the prosecutor, and he (the witness) at
1. The court charged the jury to the effect that if they found that at the time of the making of the contract the defendant was under contract with Butler to work for him at the same time, the fact that he was under a contract that might have prevented him from working for Walton would not be such an excuse as is contemplated by the law and as would excuse him from performing his contract with Walton. It was contended that this was error, because, if the accused "was under a valid legal contract with Butler made prior to the Walton contract, he was in law called upon to perform the same, and it would have been wrong and criminal for Walton to have interfered with the same.” There is no merit in this exception. The fact that one is already under contract to perform services for another will not negative the presumption of fraudulent intent in case he obtains advances from a third person upon a promise to perform services for the latter for a period of time wholly or partially concurrent with that embraced in the contract previously entered into by him, nor afford such an excuse, within the contemplation of section 716 of the Penal Code, as would relieve him from performing the second contract. So far from excusing one who is already under contract to perform services for another from the imputation of a criminal fraudulent intent, the making of the second contract would tend to strengthen the presumption that he intended to defraud; and the gist of the offense penalized by the labor-contract act is the intent to defraud.
As to the additional exception, that the language used in the
2. We think the learned trial judge erred in instructing the jury as follows: “I charge you also, in this connection, that they would have had to tender whatever was due; that they would not have had to rely upon Mr. Walton as to the amount due, and also the interest at seven per cent, from the time of such advances to the time of the tender, to excuse him under the tender.” The evidence on behalf of the defendant, already referred to, showed that the witness went to see Mr. Walton to explain the matter, and, at the defendant’s request, offered to pay him any amounts advanced to the accused, as well as the expenses of Walton’s trip to Augusta. Naturally the defendant did not know the amount of the expenses attached to Walton’s trip, and for that reason the tender of the exact amount of that demand could not be made. There is no evidence that the amount advanced to the accused by Walton was in dispute or that this had previously been the ease. If it had been, the offer of the witness in behalf of the defendant would have elicited that fact. The provision of section 716 of the Penal Code as to a return of money advanced by the hirer, with interest thereon at the time the labor of the employee was to be performed, is sui generis, and is not subject to the general rule which requires that a tender be for the exact amount admitted to be due. It was for the jury to say whether an offer (made by a third person on behalf of the accused) to pay instanter whatever amount had been advanced to him by the hirer, if declined by the hirer, was or was not equivalent to a return of the amount advanced, within the purview
3. We think also that the court erred in instructing the jury that if they found, from the evidence, facts, and circumstances of the case, that the accused did not perform "the services as he agreed to do in his contract (if they found that there was any such contract), and that Mr. Walton suffered loss and damage by reason of having made any advances to the defendant upon the faith of the contract, they should find the defendant guilty, unless the jury found that he returned the money or other thing of value alleged in the second count of the indictment, or unless he had good and sufficient cause not to perform the contract, in case the jury found that he did not perform it. Section 716 of the Penal Code prescribes that “Satisfactory proof of the contract, the procuring thereon of money or other thing of value, the failure to perform the services so contracted for, or failure to return the money so advanced with interest thereon at the time the labor was to be performed, without good and sufficient cause, and loss and damage to the hirer, shall be deemed presumptive evidence of the intent referred to in the preceding section.” The instructions of the learned trial judge left the jury no option as to their verdict, provided proof of the circumstances mentioned in the code section were satisfactory, whereas the law declares these circumstances to be merely presumptive evidence of that intent which is “the paramount, controlling, ever essential element of the offense” which must be proved to have been coexistent either with the contract or the creation of the debt, as the case may be. Patterson v. State, 1 Ga. App. 782 (58 S. E. 284). In contemplation of the statute, the facts enumerated raise the presumption of an intent to defraud. Under