1 Ga. App. 782 | Ga. Ct. App. | 1907
This case was tried before his honor, the judge of the city court of Newton, without the intervention of a jury, a jury trial not being demanded. The court adjudged the defendant guilty, and, upon motion therefor, refused him a new trial. We think a new trial should have been granted, and, therefore, that the court erred in overruling the motion. It is unnecessary to consider all the assignments of error. Some of them are devoid of merit, and the discussion of others can serve no useful purpose, as it would b.ut recall well-recognized principles. We shall, therefore, only refer to the considerations which control our judgment in reversing the judgment of our brother of the' trial bench.
This defendant was charged with a violation of the act of 1903, making it “illegal for any person to procure money or other thing of value on a contract to perform services, with intent to defraud.” Acts of 1903, p. 90. In this act the General Assembly declares that “if any person shall contract with another to perform for him services of any kind, with intent to procure money or other thing of value thereby, and not to perform the service contracted for, to the loss and damage of the hirer; or, after having so contracted, shall procure from the hirer money, or other thing of value, with intent not to perform such service, to the loss and damage of the hirer, he shall be deemed a common cheat and swindler, and upon conviction shall be punished as prescribed in section 1039 of the Code.” And in the second section it is enacted that the intent to defraud shall be presumed, upon “■ 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 said labor was to be performed, without good and sufficient cause and loss and damage to the hirer.” As the legislature could not pass a law which would, by any device or construction^ countenance or allow imprisonment for debt, and- as such can not be presumed to be. the legislative
Every crime consists in the union or joint operation of act and intention. Sometimes the intention can be proved, sometimes it can only be inferred or presumed; and the general rule laid clown by our code is, that the intention will be manifested by the circumstances connected with perpetration of the offense. Penal Code, §32. An intention to defraud is a peculiar mental state, and as it can not be seen or touched, and as no witness can testify to its presence or absence by insight into the kaleidesc-ope of another’s mind, its existence can only be developed and demonstrated by the conduct of the party under investigation. In this particular statute the intention is peculiarly the crucial test of guilt or innocence, and it is extremely doubtful if the general rule can be fully applied, because our Supreme Court, in defining and limiting §32, very properly holds that “the law presumes that every act which is in itself unlawful was criminally intended, until the contrary is made to appear.” Lawrence v. State, 68 Ga. 289. The very 'safety of society requires the observance of this rule as to acts in themselves unlawful. The principle there is, that, the act being unlawful, the violator of the law will be presumed to have intended the results which naturally follow the unlawful act. But can this rule be applied where the act of itself is not unlawful? To the mind of the writer the question is a serious one. It is certainly not unlawful, in any criminal sense, to contract with another to perform services, and then not perform them, although there was at the time of the contract an intention to procure .money by reason of the contract. If no money was in fact obtained, it would be simply to make a debt with no intention of paying it, — the making of a contract for breach of which the opposite party would be entitled to his action for damages. And to procure money or goods from the hirer after the contract has been made, taken alone, is but the creation of the debt. We are well aware
The law was sustained, however, on - the express idea that it was to be so construed' as not to penalize non-payment of debts or lend the aid of the criminal law to the enforcement of mere civil contracts. It is a cardinal rule of construction that criminal statutes are to be strictly construed in f^vor of every citizen whose liberty is • put in danger by accusation of crime. This rule should in no degree be relaxed, either in construing the statute or applying the proof to the charge, in a statute like the act of 1903, now under our consideration, — an act which (no matter how healthful its general purposes or how beneficial its effect in some cases), nevertheless, at all times exposes, and sometimes, we fear, subjects, the weakest, the poorest, and the most unintelligent of our citizens to oppression and injustice at the hands of the powerful, shrewd, and unscrupulous. We do not mean to say that this law is used in this way, or that there are not very numerous, instances where the law serves a proper purpose. We are speaking now only of the easy possibilities of misusing the law for the very purpose the legislature did not intend, —the collection of debts and the enforcement of civil contracts, without regard to the intention of the defendant. The intention to defraud must be clearly shown in every case before there can be a lawful conviction, under the statute, and proof of the fraudulent intent must be established by the same rule as other facts in criminal cases.
The statute of 1903 adds, to the catalogue of those acts heretofore made penal, two acts, the commission of-either of which, if such act is induced by an antecedent fraudulent intent, causes the actor to be deemed a common cheat and swindler. It creates two new classes. It sets out two distinct offenses. In the one' class is included any person who contracts to perform services of any kind with intent to procure money or other thing of value
The prosecutor testified, that the defendant contracted with him in December, 1905, to work with him and to run a one-horse farm on halves, on his (the prosecutor’s) place, for the year Í906; that the defendant moved on the prosecutor’s place in January, 1906, made his crop, and laid it by, and the-prosecutor had no cause of complaint as to the defendant’s working the crop. But he would not gather his crop as he should have done. Defendant and his family gathered some of the crop, but would not gather it all, and witness had to employ cotton-pickers to gather some of it. On December 22, 1906, defendant moved off prosecutor’s place, and left five or six hundred pounds of seed cotton in the field. Prosecutor furnished defendant, on the faith of the contract of labor, $5 a month in cash from January to August, paid W. J. Kidd $10, and Dr. Griffin $22, for the defendant, and
The objections to the accusation were waived by the joinder of issue, and can not be considered. And we will not consider the exceptions in regard to the different initials and ñame by which the prosecutor was denominated in the accusation; because (if Mathew Elias and M. A. Elias are not one and the same man) the fact that the accusation sets forth that defendant entered into a contract with Mathew Elias and concludes that M. A. Elias was injured would have afforded good ground for general demurrer, as setting forth no offense, inasmuch as a prosecution under the act of 1903 will not lie for injury to any one except the hirer. We think the court erred in refusing a new trial upon the 8th ground of the motion. The court allowed the witness Elias to testify, and admitted in evidence, over the defendant’s objection, the statement from that witness, that he had furnished merchandise and other advances, which, together with the money furnished, amounted approximately to $200, and, after receiving all of the crop made by defendant and crediting him with it, it still left defendant indebted to him $55.70. The objection insisted on at the time was, that this evidence was illegal, irrelevant, and inadmissible. We think that the objection is well taken. It was certainly irrelevant, to the charge made in the
Failure to return the money is one of the circumstances from which, by the terms of the second section of the act, the intention to cheat may be presumed, and failure to perform labor is another; and yet both of these, by the very terms of the statute, may be nullified, if the employee had good and sufficient cause for neither paying nor working. The statute was not intended to enforce contracts, or collect debts uncollectible by ordinary proc
The State alleged that $55.70 was procured with fraudulent intent, as the transaction on which it planted its case. It was ■obliged to select a certain definite _ transaction (unless it ' preferred, either in the same or in different counts, to charge more than one) in which the defendant, with the intent of not performing the service, procured a definite sum or definite articles of value, with the definite fraudulent purpose of causing loss or •damage by not repaying, and of thereby cheating the prosecutor. The legal evidence totally failed to show that the defendant ever received the amount of money alleged in the accusation at the time alleged, or at any other time within two years before the •date of the accusation.
This court is most reluctant in any case to set aside the verdict •or the judgment of a court acting as a jury; and will never disturb such finding on the ground that it is contrary to evidence, where there is any evidence to support it; but where there is no ■evidence to authorize the verdict, it is contrary to law, and must for that reason be set aside. Judgment reversed.