Tbe offense of wbicb tbe defendant was convicted is defined by tbe statute as follows: “If any person witb intent to cheat and defraud another shall obtain any money, etc., from any other person or corporation, upon and by color of any promise or agreement that tbe person making tbe same will begin any work, etc., and shall unlawfully and willfully fail to commence or complete said work according to tbe contract, without a lawful excuse, be shall be guilty of a misdemeanor,” etc. This statute was under consideration by this Court in
S. v. Norman,
Tbis construction of tbe statute was adopted by tbis Court in tbe words quoted, and tbe Court further said: “Certainly, evidence merely of tbe agreement to work and obtaining advances thereon and tbe failure to comply would not warrant or support a verdict.” It is manifest from tbe record in tbis case tbat there is no evidence whatever tbat when tbe defendant obtained tbe advances in money be tben intended to defraud tbe prosecutor, tbat be tben bad no intention of performing bis contract, and used tbe promise to work as a fraudulent device to obtain tbe credit. Tbe defendant was a tenant of tbe prosecutor, and lived with bis wife and children on prosecutor’s land. He was convicted of assault and battery and prosecutor paid bis fine and costs, tbe defendant agreeing to continue work on tbe farm and to cut cross-ties at 10 cents each. Tbis was in August, 1908. Tbe defendant worked with prosecutor off and on until tbe last of December. Tbe prosecutor seized bis bog, farming tools, flour and meat for bis debt, although be bad no mortgage on them. Tbe defendant moved off bis land in order, as defendant testifies, to support bis family.
But it is contended that tbe statute has been amended since tbe opinion in tbe Norman case, and tbat tbe mere fact of a failure to do tbe work raises a presumption of fraud, and tbat tbe original promise was a subterfuge and device to obtain tbe advances.
Tbe statute was amended in 1905, since tbat decision, and tbe amendment reads as follows: “And evidence of such promise or agreement to work, tbe obtaining of such advances thereon and tbe failure to comply with such promise or agreement shall be presumptive evidence of tbe intent to cheat and defraud at tbe time of obtaining such advances and making such promise or agreement, subject to be rebutted by other testimony which may be introduced by tbe defendant.”
*614 Tbe question was not discussed in tbe briefs or at tbe bar, but we must take notice of tbe inherent defect of tbis attempted rule of evidence.
Tbe Supreme Court of tbe United States bas frequently-recognized tbe general power of tbe State legislature to prescribe tbe evidence wbicb shall be received and tbe effect of that evidence in its own courts.
Fong Que Ting v. U. S.,
It is a part of tbe organic law of tbis State that there shall be no imprisonment for debt except in case of fraud. Tbe bald fact that a person contracted a debt and promised to pay it in work, standing alone, does not justify a presumption of fraud in contracting tbe original debt, any more than it would if be bad promised to pay it in money. It is beyond tbe power of the Legislature to create such a rule of evidence and enforce it in the State’s own courts. It is but an arbitrary mandate, there being no rational connection, tending to prove fraud, between tbe fact proved and tbe ultimate fact presumed. Such an arbitrary rule of evidence takes away from tbe defendant bis constitutional rights and interferes with his guaranteed equality before tbe law, and, as tbe Supreme Court of tbe United States says, “violates those fundamental rights and immutable principles of justice wbicb are embraced within tbe conception of due process of law.” Bailey v. State of Alabama, Supreme Court of United States, 3 January, 1911.
Mr. Justice Hughes, who delivered tbe opinion of tbe Court, further says: “It is apparent that a constitutional prohibition cannot be transgressed indirectly by tbe creation of a statutory presumption any more than it can he violated by direct enactment. Tbe power to create presumptions is not a means of *615 escape from constitutional restrictions. And tbe State may not in tbis way interfere with matters withdrawn from its authority by the Federal Constitution and subject the accused to conviction for conduct which it is powerless to proscribe.”
The General Assembly of this State can no more, by the enactment of an arbitrary rule of evidence, violate the provision of our own Constitution than it can the Federal Constitution. In the enactment of the Amendment Act of 1905 it violated both.
The history of this legislation seems to have been almost identical in this State and Alabama. At first the statute construed by this Court in the Norman case, supra, was enacted in both States. Convictions could not be easily obtained because of the inability to prove the original fraudulent intent and purpose in obtaining the advances and making the promise. To obviate this, the amendment of 1905 was enacted in both this State and Alabama.
The Supreme Court of the United States has recently declared the Alabama amendment as violative of the Fourteenth Amendment to the Federal Constitution, and concludes its opinion in these words: “What the State may not do directly it may not do indirectly. If it cannot punish the servant as a criminal for the mere failure or refusal to serve without paying his debt, it is not permitted to accomplish the same result by creating a statutory presumption which upon proof of no other fact exposes him to conviction and punishment. Without imputing any actual motive to oppress, we must consider the natural operation of the statute here in question
(Henderson v. Mayor,
Upon the evidence introduced, ignoring the statutory presumption, his Honor should have instructed the jury, as prayed by the defendant, that the evidence was insufficient to convict.
New trial.