Davis v. State
| Decision Date | 22 December 1938 |
| Docket Number | 7 Div. 543. |
| Citation | 185 So. 774,237 Ala. 143 |
| Parties | DAVIS v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 26, 1939.
Certiorari to Court of Appeals.
Jeff Davis was convicted of embezzlement, and to review and revise the judgment and decision of the Court of Appeals, 185 So 771, affirming the judgment of conviction, the defendant brings certiorari.
Writ denied.
Motley & Motley, of Gadsden, for petitioner.
A. A Carmichael, Atty. Gen., and Clarence M. Small, Asst. Atty Gen., for the State.
Section 3962, Code of 1923, under which petitioner was indicted and convicted, reads: "Whoever, being the administrator of the estate of the decedent, or the executor of a last will, or the guardian of any minor or insane person, or a trustee or other person acting in any fiduciary capacity, without good cause, fails or refuses, when legally required by the proper person or authority, or on demand of a surety on the bond of any such administrator, executor or guardian, to account for or pay over to such person or persons as may be lawfully entitled to receive the same, any money, chose in action, or other property, which may have come into his hands by virtue of his office, duty or trust, shall be deemed guilty of embezzlement, and, on conviction, shall be punished as if he had stolen the same."
This Section first appeared in the present Code, and has not heretofore been considered. It is now challenged as void in that it violates Section 20 of the Constitution of 1901, appearing in the bill of rights, saying: "That no person shall be imprisoned for debt."
If the above statute be construed to mean that every executor, administrator, guardian, trustee or fiduciary, who, upon final settlement of his trust, has a decree entered against him for the payment of money, and fails to pay same on demand, is branded as a criminal, guilty of embezzlement, subject to imprisonment in the penitentiary, we would be impelled to hold it is violative of the constitutional guaranty against imprisonment for debt.
"Without good cause" is made one of the elements of the offense. The statute does not define "good cause," but if defined to include the constitutional guaranty against imprisonment for debt among the good causes shielding the accused from conviction for crime, this saving clause may save the statute. Our statutes should be construed so as to give them a field of operation within constitutional bounds if they reasonably admit of such construction.
Broadly speaking, debt within the meaning of our bill of rights includes monies due under contract, or as damages for breach of any form of contractual obligation. It does not inhibit punishment for tortious acts, although committed in the procurement of contracts under which the defrauded party suffers loss.--11 Amer. Juris, p. 1126 et seq., § 327.
In Carr v. State, 106 Ala. 35, 17 So. 350, 34 L.R.A. 634, 54 Am.St.Rep. 17, this court considered a statute imputing crime to a banker who receives deposits knowing the bank to be insolvent.
It was pointed out that former constitutions had excepted from immunity cases of fraud, and declared [page 351]:
The punishment under the statute there considered looked to the collection of the deposit. It went so far as to provide that payment at any time before conviction should be a good defense. It was not a statute to punish the wrongful and fraudulent act of the banker; but one wherein the depositor, standing on the contract creating the relation of debtor and creditor, was given the benefit of criminal action to enforce the obligation of the contract, the payment of debt.
The case is clear authority to the effect that in Alabama non-performance of the obligations of a contract cannot be made a crime because fraud entered into its procurement. If the party defrauded stands on his contract, the criminal law cannot be used to enforce its obligation.
Fraud and misrepresentation resulting in injury to another may be made criminal; and it matters not that such fraud was perpetrated in the procurement of a contract under which the party injured parted with value. But crime cannot be imputed to the breach of contract, non-performance, or non-payment, as the case may be. The crime must be predicated on the tortious act, not on failure to perform the contract, although induced by fraud.
The Carr Case has been differentiated in later cases. Chauncey v. State, 130 Ala. 71, 30 So. 403, 89 Am.St.Rep. 17; Goolsby v. State, ...
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Wright v. State
...upon appellant's "tortious act" of receiving embezzled property, not upon his failure to perform under a contract. See Davis v. State, 237 Ala. 143, 185 So. 774 (1938). III In response to a pretrial motion by appellant, the trial court entered an order requiring the State to produce "any do......
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State v. Allison
...obligation, express or implied, and judgments rendered thereon." 16B Am.Jur.2d Constitutional Law § 629 (1998) (citing Davis v. State, 237 Ala. 143, 185 So. 774 (1938) (personal contractual obligation); State v. Owen, 129 Idaho 920, 935 P.2d 183 (Idaho Ct.App. 1997) (personal contractual ob......
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Marriage of Fithian, In re
...Cox v. Rice (1941), 375 Ill. 357, 31 N.E.2d 786, 788-789 (failure of conservator to deliver funds of conservatee); Davis v. State (1938), 237 Ala. 143, 185 So. 774, 777 (failure of guardian to pay misappropriated funds held for ward); Tegtmeyer v. Tegtmeyer (1937), 292 Ill.App. 434, 11 N.E.......
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Newman v. State
...stage of the proceedings, either in the trial court or on appeal. Davis v. State, 28 Ala.App. 348, 185 So. 771, certiorari denied 237 Ala. 143, 185 So. 774; 12 786; 16 C.J.S. Constitutional Law, § 96. Hence this comment. Counsel urges a striking down of Section 3294, Code 1923, as amended b......