Vance v. State

Jul 11, 1907
Reporters:
, ,
Before:
Lumpkin
Lumpkin, J.

Governor Yance was accused, in the city court of Americus, of a misdemeanor in violating the act of August 15, 1903 (Acts 1903, pp. 90, 91), relative to the procurement of fraudulent advances on a contract to perform services. He demurred to the accusation, attacking the act referred to as unconstitutional, on various grounds. The demurrer was overruled, and the case was carried by bill of exceptions to the Court of Appeals. That court, under the constitutional provision creating it, certified to this court the constitutional questions for decision. We take up the questions seriatim.

1. Is the act of 1903 unconstitutional as being repugnant to and in contravention of clause 1, section 14, article 8 of the constitution of the United States (contained in the Civil. Code, §6030), as to the provision therein contained that no State shall deny to any person within its jurisdiction the equal protection of the laws ? The contention is, that in the class of contracts dealt with and contemplated by the act, the person or persons contracting to perform services are denied, as against the person or persons for whom such services ate to be rendered, the equal protection of the laws, in that it subjects the former, under certain contingencies, to prosecution and punishment, and at the same time affords the latter absolute immunity from prosecution or punishment by reason of any infraction of said contractual obligations.

If the act of 1903 sought to make it penal to violate a contract or fail to pay a debt, it would be patently unconstitutional. But this court has held that “such act does not violate the constitutional inhibition against imprisonment for debt; the legislative purpose being, not to punish for a failure to comply with the obligation, but for the fraudulent intention with which the money or other thing of value is procured.” Lamar v. State, 120 Ga. 312; Banks v. State, 124 Ga. 15 (4); Townsend v. State, 124 Ga. 69. This being true, it is apparent that the objection is without merit. In the nature of things the master does not ordinarly procure advances from his servant, or the employer from his employee. Legitimate classifi*666cation is not unjust discrimination. There are a very large number of laws upon the statute books imposing penalties upon certain persons without also providing for penalties as to others, though having some relation with them. The abandonment of a child by its father is made a misdemeanor. Penal Code, §114. But it is not declared criminal for a child to abandon its father. It is evident that the same duty does not rest upon both, and the two are .not in the same situation. _ Enticing away apprentices is unlawful. Penal Code, §119. But nothing is said as to putting any penalty on the employer. Wilfully or maliciously to burn, or to attempt to burn, any railroad bridge is declared to be arson, although other bridges are not mentioned. Penal Code, §145. Selling liquor without a license is made criminal, although no penalty is imposed by law upon the purchaser. Penal Code, §§431, 433. Any baker or other person selling bread under the assize established by the corporation of any city, town, or village, or the rules laid down by law, shall be punished as for a misdemeanor, but no punishment is provided for the man who buys the undersized bread, the loss incurred falling on him. Penal Code, §661. It is criminal for bank officers to purchase any bill, check, or other evidence of debt issued by the bank, for less than its face value; but the seller is not punished. Penal Code, §209. These are only a few of the many instances which might- be cited, but they will suffice to show that where two persons deal with each other and*the conduct of one requires safeguarding, criminal laws have been shaped for that purpose; and they have never been considered unconstitutional.

2. It is further urged that the equal protection of the law is denied because the person contracted with, and for whom services are to be rendered, is permitted to testify to a state of facts declared to be sufficient to carry the presumption of fraudulent intent, whereas the accused is not permitted to testify and has no opportunity or means equal to those afforded to the person contracted with of proving that no fraudulent intent existed; and the act lays down no measure of proof by which such presumption may be overcome. Here again the error is made of treating the act as punishing a breach of contract, instead qf a fraudulent transaction. To say that the equal protection of the law is denied because a prosecutor can testify and the person accused of crime can not would upset the practice in criminal procedure for centuries *667past. The privilege to the accused to testify as a witness is conferred by statute in some States. It is not a common-law right. In this State it does not exist generally, but only in certain cases.

3. The contention that no measure of proof is laid down by the act of -the legislature by which such presumption may be overcome is without merit. The general law in regard to criminal procedure is to be considered in connection with this act. The presumption of sanity, of the continuance of a state of facts permanent in its ■ nature, when once shown to have existed, and other disputable presumptions are declared by law. Upon the whole case, in a criminal prosecution, the State must show the guilt of the accused beyond a reasonable doubt. But the act is not unconstitutional because on its face it does not declare the exact amount of proof which will overcome a disputable presumption raised by law from a given state of facts.

4. It is further contended that the act is violative of paragraph 1, section 4, article 1, of the State constitution (Civil Code, §5732), and especially that portion thereof which declares that “Laws of a general nature shall have uniform operation throughout the State.” It is argued that the act of 1903 does not have uniform operation,- in that it singles out and deals with a given charader of contracts, and prescribes with reference thereto “different rules, different conditions, and different penalties from all other contracts of whatever nature;” and because it imposes heavier burdens upon the person or persons who contract to perform services, while affording to the person or persons for whom such services are to be performed immunity from prosecution and punishment; and also because it groups a class of citizens who contract with reference to the performance of services, and imposes on some of them certain conditions, prosecutions, and punishments not inflicted upon others. Here again the error of treating the act as punishing for a violation of a contract appears. The law is general and uniform, applying uniformly throughout the State to all persons falling within its terms. It is well settled that reasonable classification may be made, and if the law applies uniformly to all within the class it is not unconstitutional. If this were not so, all the laws giving liens to laborers, materialmen, contractors, and others against the person with whom they contract, or for the improvement of whose property they furnish labor or materials, without *668providing a counter-lien of some sort in favor of the other party to the contract, would be unconstitutional. We deem it unnecessary to cite authorities in support of this well-settled proposition.

5. Again, it is urged that section 2 of the act is repugnant to paragraph 5 of section 1 of article 1 of the constitution of the State (Civil Code, §5702), and particularly to that portion of the paragraph which provides that the accused shall have a public and speedy trial by an impartial jury, in that said act arbitrarily fixes the measure of evidence by which the jury may presume guilt; whereas the constitutional provision contemplates that the jury alone shall determine that question. This point is in effect controlled by the decision in Banks v. State, 124 Ga. 15 (6), supra, where it was held that “A provision of the act of 1903 to the effect that proof of the contract of hiring, the procuring thereon of money or other thing of value, the failure to perform the service so contracted for, or to return the money so advanced with interest thereon to the time the labor was to be performed, without good and sufficient cause, and loss or damage to the hirer, shall be presumptive evidence of a fraudulent intent in the procurement of the advances, is not an assumption of judicial functions by the legislature.”

• If the act made the presumption of intent arising from proof •of certain facts conclusive, rather than disputable, or if the inference was arbitrary and without reasonable connection with the premises on which it was predicated, a more serious question would arise. But such is not the case. Intent is in most cases necessarily inferred from some act or acts done. Many instances might be given. Thus, the presumption of malice from evidence showing a voluntary homicide unaccompanied by circumstances of .justification or mitigation. Mann v. State, 124 Ga. 760. Suppose that the legislature had enacted the rule laid down in this case, in the exact language of this court. Would it become unconstitutional by reason of such enactment, or would it be less a valid rule if prescribed by the legislature than if settled by decisions of the court? See State v. Barrett, 138 N. C. 630 (50 S. E. 506); Robertson v. People, 20 Colo. 279 (38 Pac. 326); Voght v. State, 124 Ind. 358 (24 N. E. 680); Note to Banks v. State, 2 L. R. A. (N. S.) 1007. The act is not unconstitutional on this around.

*6696. It is still further contended that the act, particularly the second section thereof, is repugnant to the provisions of paragraph 17, section 7, of article 3 of the constitution of the State (Civil Code, §5779), wherein it is provided that “No law, or section of the Code, shall be amended or repealed by mere reference to its-title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made.” It is said that the provisions of the act of 1903 are in direct conflict with section 1033 of the Penal Code, which provides that “on the trial of all criminal cases the jury shall be the judges of the law and the facts, and shall give a general verdict of ‘guilty’ or ‘not guilty;’”’ that the act necessarily works a repeal of this section as to the class of prosecutions within its purview; and that no reference is, made to that section of the code. The particular point of conflict between the section and the act urged is that the latter provides Avhat evidence will raise a presumption of guilt, whereas, under the provisions of the section of the code, the jury are the sole judges of the facts and of their probative value. What has been said in the preceding division of this opinion substantially decides, this objection. The act of 1903 is not in conflict with and does not repeal the section of code quoted above. Upon the whole case that section is still the law, construed as it has heretofore been by this court. The two laws are to be construed in harmony. The establishment by legislation of a rule of presumptive intent from acts done in carrying out that intent does not violate the constitutional provision last mentioned above.

The act of 1903 is not unconstitutional for any of the reasons urged against it. Let this decision be certified to the Court of Appeals, as by law provided.

All the Justices concur.