Coleman v. State

• Court: Georgia Court of Appeals
• Writing for the Court: RUSSELL, J.
• Citation: Coleman v. State, 6 Ga.App. 398, 65 S.E. 46 (Ga. App. 1909)
• Decision Date: 29 June 1909
• Docket Number: 1,907.
• Parties: COLEMAN v. STATE.

65 S.E. 46

6 Ga.App. 398

COLEMAN v. STATE.

No. 1,907.

Court of Appeals of Georgia

June 29, 1909

Syllabus by the Court.

On the trial of an accusation under the labor contract act of August 15, 1903 (Acts 1903, p. 90), it is for the jury, and not for the court, to determine from the evidence whether the presumption that there was an intent to defraud arising from the failure to perform the services is rebutted by the showing of a good and sufficient cause why the labor was not performed or the money advanced not returned.

Consequently in a case in which the defendant had been beaten by the prosecutor, and thereafter had left his service, it was error to instruct the jury that, "if the defendant provoked the difficulty by using opprobrious language to the prosecutor such as would justify the assault, and as a result the prosecutor beat him, that would not be a legal excuse for failure to carry out the contract by the defendant." Regardless of the merits of the quarrel between the employer and the employé, and no matter who might be the aggressor, if the defendant left the service of his employer on account of the beating or the difficulty, and not on account of a preconceived fraudulent intent which had no connection with such difficulty, the defendant would not be guilty of a violation of the "labor contract act."

As a note is not payment until it is itself paid (unless an express agreement by the payee to receive it as payment is shown), the giving of a note by an employer, by which he promises at a future date to pay the amount of a pre-existing debt of an employé, is not an advance of the amount therein specified, within the terms of the statute of Act Aug. 15 1903 (Acts 1903, p. 90).

One who agrees to furnish or pay for labor for the benefit of another is a "contractor," and not a "servant" or "laborer," within the terms of the "labor contract act" of August 15, 1903 (Acts 1903, p. 90). Johnson v. State, 125 Ga. 234, 54 S.E. 184.

"Before a prosecution can be successfully maintained under this act the burden is upon the state to show that loss or damage was actually sustained by the hirer. Where it appears that advances were made and that the person to whom the advances were made performed a certain amount of service, but the value of such service is not made to appear, the prosecution fails to carry this burden of proof." Abrams v State, 126 Ga. 591, 55 S.E. 497 (2).

Error from City Court of Camilla; J. H. Scaife, Judge.

Mose Coleman was convicted of procuring money on a contract to perform services with intent to defraud, in violation of Act Aug. 15, 1903 (Acts 1903, p. 90), and he brings error. Reversed.

A. S Johnson, for plaintiff in error.

Sam S. Bennet, Sol. Gen., for the State.

RUSSELL J.

The plaintiff in error was convicted of a violation of the "labor contract law" of August 15, 1903 (Acts 1903, p. 90), and excepts to the judgment overruling his motion for new trial. It is unnecessary to discuss all of the exceptions, but, for reasons which we shall state, we are clearly of the opinion that the movant should have been given a new trial.

1. In charging the jury upon what might be good reason for failure to perform labor which a servant or laborer might have contracted to perform, the court erred by invading the province of the jury. Upon this subject, the court's charge was as follows: "I charge you that if the prosecutor raised a difficulty with the defendant without provocation, and beat him, that would be a sufficient cause for a failure to comply with the contract, but, on the other hand, if the defendant provoked the difficulty by using opprobrious language to the prosecutor, such as would justify the assault, and as a result the prosecutor beat him, that would not be a legal excuse for a failure to carry out the contract by the defendant." It appears from the evidence that there had been a difficulty between the parties to the contract; and, while there was a difference as to who was the aggressor, there was no dispute that this difficulty was the cause of the servant's quitting the employ of his hirer. Regardless of the language used by the judge, the instruction, as a whole, was error, because it is for the jury, and not for the court, to determine whether the excuse for quitting the service of his employer which may be offered by the employé is sufficiently valid to rebut the presumption that the contract was made and advances obtained thereupon with fraudulent intent. The second section of Act Aug. 15, 1903 (Acts 1903, p. 90), provides that "satisfactory proof of the contract, the procuring thereon of money or other thing of value, the failure to perform the services so contracted for, or failure to return the money so advanced with interest thereon at the time said labor was to be performed, without good and sufficient cause, and loss and damage to the hirer, shall be deemed presumptive evidence of the intent referred to in the preceding section." The intent referred to in the preceding section is an intent to procure money or other thing of value by reason of the contract made, and not to perform the services contracted for. Each of the things stated in the second section of the act, and all of them as stated, are essential ingredients of the offense; and, of course, in every criminal case it is for the jury, and for the jury alone, to determine whether any one or all of the essential ingredients of a crime have been proved. For this reason, as much as the court would be permitted to say upon this subject would be to tell the jury that it was for them to determine whether the presumptive evidence of fraudulent intent had been rebutted by reason of the fact that the defendant had shown good and sufficient cause for his failure to perform his contract.

2. For another equally good reason the charge of the court upon this subject was error. If the jury believed (and as to this point, both the state and the defendant concurred) that the defendant abandoned his contract on account of a beating which he received at the hands of the prosecutor, and solely on this account, it could make no difference who was the aggressor, and the jury would have been authorized to find regardless of who was the aggressor, that there was no fraudulent intent at the time that the contract was entered into, or at the time that the advances were made by the employer and received by the defendant, and that, if such an intention was formed at all, it had its birth after the contract and the advances. As held by Judge Cobb in Sterling v. State, 126 Ga. 92, 54 S.E. 921: "The gravaman of the offense defined by the act of August 15, 1903 (Acts 1903, p. 90), declaring it illegal for any person to procure money or other thing of value on a contract to perform...