Carr v. State

• Decision Date: 01 April 1895
• Citation: 17 So. 350,106 Ala. 35
• Parties: CARR v. STATE.
• Court: Alabama Supreme Court

17 So. 350

106 Ala. 35

CARR v. STATE.

Supreme Court of Alabama

April, 1895

Appeal from district court, Colbert county; W. P. Chitwood, Judge.

Hinton E. Carr was convicted of receiving a deposit knowing that his bank was insolvent, and appeals. Reversed.

Asa E Stratten, James Jackson, and Isaac Orme, for appellant.

W. C Fitts, Atty. Gen., for the State.

McCLELLAN J.

The defendant, Hinton E. Carr, is charged in one count as the president, and in another as a member, of a banking firm with receiving from Robert T. Abernathy for deposit $355 knowing at the time, or having good cause to believe, that said firm was in a failing or insolvent condition. The indictment is drawn under an act "to prevent banks, bankers, firms, corporations, or other persons from receiving deposits of bank notes, specie money or other thing of value, when in a failing or insolvent condition," approved December 12, 1892, which is in the following words:

"Section 1. Be it enacted by the general assembly of Alabama, that any president, cashier or other officer, by whatever title he may be called or known, of any bank, banking firm or corporation engaged in a banking business, or any other person or persons, engaged in said business, or the agent or agents thereof, who shall receive for deposit any bank notes, specie money or other thing of value, knowing at the time said deposit is received, or having good cause to believe, that such bank, banking firm, corporation, person or persons, are in a failing or insolvent condition, shall for each offense be deemed guilty of a misdemeanor, and on conviction thereof be fined not less than double the amount of said deposit.

"Sec. 2. Be it further enacted, that in all convictions under this act, the fine shall be paid in lawful money of the United States only, one-half of which shall go to the person who made the deposit.

"Sec. 3. Be it further enacted that the payment back to the depositor of the bank notes, specie money or other thing of value, deposited, before the conviction hereunder, and the court costs thereof, which may have accumulated, shall be a good and lawful defense to any prosecution under this act." Acts 1892-93, pp. 94, 95.

By demurrer to the indictment and motion in arrest of judgment, defendant raised the question of the constitutionality of the foregoing statute, and reserved the court's ruling, sustaining the indictment and statute, for our consideration.

1. The statute, it is insisted for the appellant, is violative of article 1, § 21, of the constitution of the state, which provides "that no person shall be imprisoned for debt." It is to be observed in the outset that this provision of the organic law is essentially different from the provisions on this subject in many other state constitutions, in that it contains no exception of "cases of fraud"; and, on the same line, is essentially different from the constitutions of this state of 1819, 1861, and 1865, in each of which the language is that "the person of a debtor, where there is not strong presumption of fraud, shall not be detained in prison, after delivering up his estate for the benefit of his creditors, in such manner as shall be prescribed by law." Const. 1819, art. 1, § 18; Const. 1861, art. 1, § 18; Const. 1865, art. 1, § 22. This change was made in the constitution of 1868 (article 1, § 22), where the provision assumed its present form. In Ex parte Hardy, 68 Ala. 303, 318, it was held-and we do not understand that there was any division of opinion on this point-that the elimination of the exception as to frauds was a pregnant omission, which left the guaranty of immunity from imprisonment to the debtor to apply to all cases of debt, whether they involved fraud or not. So that the statute we are considering can derive no aid from the idea that the receipt of a deposit by a banker under the circumstances stated is a fraud, and hence that the transaction would constitute "a case of fraud," since even in such cases there can be no imprisonment for debt.

2. The "imprisonment for debt" which the framers of constitutions embodying this provision doubtless had most prominently in mind was imprisonment upon process issuing in civil actions the object and sole purpose of which was the collection of debts. It was to remove the evils incident to the system of taking the debtor's person upon a capias ad satisfaciendum that this organic inhibition came primarily to be ordained. But the effect of its ordination has been to establish a public policy much broader in its influence upon legislation and operation upon judicial proceedings...