State v. Vann
43 So. 357
Ala.
1907
Check Treatment
ANDERSON, J.

The only question presented by this appeal involves the constitutionality of section 4730 of the Code of 1896, as amended by Gen. Acts 1903, p. 345, which reads as follows: “Any person, who with intent to injure or defraud his employer, enters into a contract in writing for the performance of any act of service, and thereby obtains money or other personal property from such employer, and with like intent, and without just cause, and without refunding such money, or paying for such property, refuses or fails to perform such act or service, must on conviction be punished as if he had stolen it. And the refusal or failure of any person, who enters into such contract, to perform such act or service, or refund such money, or pay for such property, without just cause, shall be prima facie evidence of the intent to injure or defraud his mplover.” The amendment is a mere rule of evidence, and has been upheld by this court in the case of State v. Thomas, 144 Ala 77, 40 South. 271, 2 L. R. A. (N. S.) 1011, the soundness of which is not challenged by counsel. We are therefore called upon to determine whether or not the statute, independent of the amendment, is repugnant to section 20 of the Bill of Rights, to-wit, “That no person shall be imprisoned for debt.” Under the former construction of the statute by this court, Avhile the essence of the crime is a fraudulent intent, the statute is intended to prevent fraud, and not to imprison for debt. “The ingredients of the offense are: (1) A contract in writing by the accused for the performance of any act or service; (2) an intent on the part of the accused, when he entered into the contract, to injure or defraud his employer; (3) the obtaining by the accused of money or other personal *69property from such, employer by means of such contract entered into with such intent; and (4) the refusal by the accused, with like intent, and without just cause, and without refunding such money, or paying for such property, to perform such act or service.” A mere breach of a contract is not by statute made a crime. The criminal featuie of the transaction is wanting, unless the accused entered into the contract with intent to injure or defraud his employer, and unless his refusal to perform ivas with like intent and without just cause.” McIntosh v. State, 117 Ala. 128, 23 South. 668; Riley’s Case, 94 Ala. 82, 10 South. 528.

It is insisted that the statute is obnoxious, because of the fact that the offense is dependent upon a failure by the accused to refund the money or pay for the pioperty obtained, and thereby evinces an intent to punish for debt, and not for fraud. It is true that this fact must be averred and proved; but this is merely beneficial to the accused, and not a condition of which 1 e can complain. While the statute purges the offense i the money is repaid, it does not convert the intent on l.e part of the Legislature into seeking .imprisonment for debt, rather than preventing and punishing fraud, The statute could be a valid one for the punishment of fraud with this requirement or proviso omitted. Theiefore, if our lawmakers require the state to go further in older to make out an offense, this is only beneficial to the accused, and does not render the statute unconstitutional. He cannot be convicted without the fraudulent intent, whether he does or does not repay the money. The gist of the crime is to fraudulently get the money or property of another, and the statute merely condones the offense by permitting the defendant to repay or refund, and requires the state to negative this fact.

The judge of the city court erred in sustaining the demurrer to the indictment, and the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.