Bailey v. State

• Decision Date: 03 June 1909
• Citation: 49 So. 886,161 Ala. 75
• Parties: BAILEY v. STATE.
• Court: Alabama Supreme Court

49 So. 886

161 Ala. 75

BAILEY v. STATE.

Supreme Court of Alabama

June 3, 1909

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Alonzo Bailey was convicted of obtaining money under a contract in writing with intent to injure or defraud his employer, and he appeals. Affirmed.

Troy Watts & Latcher and Fred S. Ball, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty Gen., for the State.

DENSON J.

When this case was before us on a former appeal (Bailey v State, 48 So. 498), two points were considered and decided in respect to the constitutionality of the statute (Gen. Acts 1907, p. 636) under which the defendant has been indicted, tried, and convicted. These points are: First, that on its face the purpose of the statute is to punish fraudulent practices, and not the mere failure to pay a debt and, therefore, that the statute is not offensive to the twentieth section of the Bill of Rights, which provides that no person shall be imprisoned for debt; and, second, that it is within legislative competency to prescribe, as a rule of evidence, that the refusal or failure of a person, who enters into a contract such as is contemplated by the statute, to perform the act or service stipulated for, or to pay for the property obtained under such contract, shall be taken as prima facie evidence of the intent to defraud his employer. See authorities cited in the opinion promulgated on the last appeal.

On the present appeal the court is asked to consider whether or not the act prescribing the rule of evidence is violative of that part of the fourteenth amendment to the federal Constitution, in this language: "Nor shall any state deprive any person of life, liberty, or property, without due process of law."

Appellant's counsel, in support of the proposition that this constitutional provision is violated by the act, argue in the brief that, on account of the rule of evidence prevailing in this jurisdiction, to the effect that a person may not testify as to his uncommunicated motives, purpose, or intention, defendant was unable to show by his own testimony that he entered into the contract in good faith, and that he rescinded the contract for reasons other than those constituting crime, and, therefore, that the "due process" clause of the Constitution is violated.

The rule of evidence is as stated by counsel, but the conclusion of counsel, from their stated premises, it seems to us is a non sequitur.

Because a person may not testify, in so many words, that he did not intend a certain result, or that his motive was not to defraud, by no means cuts him off from proving such a negative by the circumstances attending his acts or utterances, which may give point or color to the same or supply the true intent or motive. And so the accused is not excluded from giving testimony, from offering evidence, from being heard, nor from setting up any lawful defense.

Again, it must be borne in mind that the rule of evidence fixed by the statute does not make it the duty of the jury to convict on the evidence referred to in the enactment, if unrebutted, whether satisfied thereby of the guilt of the accused beyond a reasonable doubt or not. On the contrary, with such evidence before them, the jury are still left free to find the accused guilty or not guilty, according as they may be satisfied of his guilt or not, by the whole evidence.

It is difficult to perceive how it can be reasonably maintained that the act or acts which the statute makes prima facie evidence of the intent have no relation to the crime; nevertheless appellant's counsel assert that they have no such relation. But this assertion they do not fortify with argument, and even a casual reading of the statute will show the entire lack of foundation for the statement. Gen. Acts 1907, pp. 636, 637.

Aside from our own decisions and those of courts of last resort in other jurisdictions in the affirmative, it would seem that the right of the Legislature to enact the rule of evidence is put at rest by the Supreme Court of the United States, in Fong Yue Ting's Case, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905, where the court held it to be within the acknowledged power of every Legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own government. See, in this connection, the well-reasoned case of Meadowcroft v. People, 163 Ill. 56, 45 N.E. 303, 35 L. R. A. 176, 54 Am. St. Rep. 447.

The next argument brought forward to support appellant's contention is that the amended statute denies "due process of law," in that there is an attempted substitution of the judicial department of the state government for the legislative. The brief attempts to clarify this statement, and concludes with the assertion that "there is no criterion laid down by the statute by which one can regulate his actions so as to know that he is abiding by the law." In other words, the contention is that the Legislature should, in the enactment, have defined "just excuse"--should have laid down the facts going to make up or to show, in every case, whether the accused was or was not "without just excuse."

It seems to us that, if the Legislature had attempted this, the result would have been more restrictive upon the defendant than was the leaving of the determination of this question to court and jury; for "just cause" is defensive matter brought forward by the accused, necessarily depending, for sufficiency, upon the peculiar facts of each case, and the wider the latitude in respect thereto, the more advantageous the situation of the accused. Owen's Case, 74 Ala. 401. But we cannot appreciate the force of the contention that there is in this a deprivation, or even a tendency to show deprivation, of due process of law.

The next insistence is that the statute denies to the accused the equal protection of the laws, and, therefore, that it is obnoxious to the last clause of the fourteenth amendment to the Constitution. The first point made under this insistence goes upon the theory that, as the statute applies only to persons who enter into contracts in writing for the performance of service, or for the...