Goolsby v. State

• Decision Date: 05 May 1925
• Docket Number: 6 Div. 627
• Citation: 213 Ala. 351,104 So. 901
• Parties: GOOLSBY v. STATE.
• Court: Alabama Supreme Court

104 So. 901

213 Ala. 351

GOOLSBY v. STATE.

6 Div. 627

Supreme Court of Alabama

May 5, 1925

Rehearing Denied June 18, 1925

C.P Goolsby was convicted of obtaining money on a draft which was not paid, with intent to defraud, and he appeals. Certified to Supreme Court by Court of Appeals. Response certified to Court of Appeals.

See also, 104 So. 906.

Reuben H. Wright and Leigh M. Clark, both of Tuscaloosa, for appellant.

Harwell G. Davis, Atty. Gen., Lamar Field, Asst. Atty. Gen., and Thomas C. McClellan, of Birmingham, for the State.

Response of Supreme Court to Certified Question.

THOMAS J.

The Act of 1915 (Acts 1915, p. 319) is codified as sections 4158-4160 of the Code of 1923, as rewritten by the recess code committee of the Legislature. In the act and its codification are contained provisions to the effect that upon the trial for obtaining money, other property, or credit by check draft, or order which is not paid, any person so charged shall be a competent witness to testify to his circumstances and intent when he drew the check, draft, or order. Why was the act of 1921 not included in the Code of 1923, rather than the act of 1915?

The act of 1915 was given consideration in Hotel Supply Co. v Reid, 16 Ala.App. 563, 80 So. 137, where the suit was for damages for malicious prosecution, and the observation is there made as to the evidence:

"While the evidence shows that there were no funds on deposit to plaintiff's credit at the bank on which the check made the basis of the prosecution was drawn, the evidence is in conflict as to whether this was known to the defendant at the time the check was given, and as to whether the defendant procured the check to be given and postdated with the knowledge that the plaintiff was without funds on deposit to pay the check. ***"

And it was held that "defendant was therefore not entitled to the affirmative charge." This case is cited with approval--where design was omitted from an Arizona statute--in George v. Williams (Ariz.) 222 P. 411, a charge of false prosecution where the ingredient of knowledge was left out; held, the charge was "lacking in substance."

In Gustin v. State, 19 Ala.App. 558, 99 So. 54, the indictment conformed substantially to the provisions of the act approved August 31, 1915 (Gen.Acts, p. 319), and the Court of Appeals declared that the act of 1915 was not repealed by implication by the Act of November 1, 1921 (Acts Sp.Sess. p. 47). The check or draft on which that indictment was founded was dated February 5, 1921. It was held that the act of 1915, applicable to the prosecution, was not repealed, as stated, by implication by the act of 1921. The last-cited case does not appear to have been considered by this court on certiorari. Hence the instant "certificate" to this court by the Court of Appeals under the provisions of the original statute. Act approved April 18, 1911 (Acts 1911, p. 449, § 1); Banks v. State, 207 Ala. 179, 93 So. 293, 24 A.L.R.1359; State v. Williams, 207 Ala. 517, 93 So. 381; D.M. Ferry & Co. v. Hall, 188 Ala. 178, 66 So. 104, L.R.A.1917B, 620.

For illustration of the application of the statutes and the rules of evidence obtaining, we advert to the pleading and defendant's evidence thereunder. For convenient reference we take the indictment from the brief before us. It is within the provisions of the act of 1921, charging that defendant did "with intent to defraud" obtain from the hotel the sum of money named, "by means of a draft, of which he was the maker or drawer, and which draft was not paid by the drawee," setting out that instrument, and concluding with the averment that:

"Seven days' written notice has been given to the said C.P. Goolsby [[defendant] of the drawee's refusal or failure to pay said draft, and the same has not been paid, against the peace and dignity of the state of Alabama." (Italics supplied.)

Such is the crime charged, and for which defendant stands convicted, under Acts 1921, p. 47.

Under this pleading, the state having made out the prima facie proof under the statute and closed its evidence, the defendant testified:

"The bank on which the draft in question was drawn had been in the habit of paying my drafts for many months prior to the date on which this draft was drawn, and later I took their other drafts up. I assumed that they would pay this one."

Thereupon the following transpired, as shown by brief of counsel:

"Defendant's counsel asked witness this question: 'Did you or not intend to defraud McLester Hotel or the two Snows when you gave them the draft and got their money?' The state objected, on the ground that witness could not testify to his uncommunicated motive or intention, and the court sustained the objection, and defendant excepted. Defendant then offered to show that he had no intention to defraud McLester Hotel when he gave the draft in question, but the court refused to allow this, and defendant again duly and legally excepted.

"Defendant's counsel asked the witness the following question: 'What was your intention at the time you gave the draft in question to McLester Hotel?' The state objected, on the ground that witness could not testify to his uncommunicated motive or intention, and the court sustained the objection, and defendant excepted. Defendant then offered to show that he had no intention to defraud McLester Hotel when he gave the draft in question, but the court refused to allow this, and defendant again duly and legally excepted."

Insisting that his conviction is unlawful, defendant contends that the cases cited by the Attorney General are without application; the state citing Ex parte King, 102 Ala. 182, 15 So. 524, and Chauncey v. State, 130 Ala. 71, 30 So. 403, 89 Am.St.Rep. 17. In those cases the indictments were under statutes providing against the obtaining of board and lodging by false representation--"fraud or misrepresentation." Acts 1892-93, p. 1089; Code 1896, § 4755. It was held in these two cases not to be imprisonment for debt, but punishment for the wrong perpetrated in the misrepresentations made. The fraud or misrepresentation was the crime charged, and for which convictions were sustained. In the Chauncey Case, supra, was distinguished the hotel statute from that held unconstitutional in Carr v. State, 106 Ala. 35, 17 So. 350, 34 L.R.A. 634, 54 Am.St.Rep. 17, as seeking to provide a method of imprisonment for debt, in evasion of the plain interdiction of Const. § 20.

The statute condemned (Acts 1892-93, pp. 94, 95) in Carr v. State, supra, provided that any officer of a banking firm or corporation or any other person or agent thereof, engaged in the banking business, "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 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."

Mr. Justice McClellan, in the Carr Case, supra, adverted to the distinction found in the provision of our present Constitution as article 1, § 20, "that no person shall be imprisoned for debt," from that contained in the several Constitutions--viz. of 1819, art. 1, § 18; 1861, art. 1, § 18; 1865, art. 1, § 22--which excepted "causes of fraud." This provision in the former Constitutions was, "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," while the provision in the Constitutions of 1868 (article 1, § 22), of 1875 (article 1, § 21), and of 1901 (article 1, § 20) is "that no person shall be imprisoned for debt." The elimination of the exception as to fraud has been held to be "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." Ex parte Hardy, 68 Ala. 303, 318, 319; Carr v. State, supra.

In Ex parte Russellville, 95 Ala. 19, 11 So. 18, and In re Hurley, 95 Ala. 19, 11 So. 18, the provision of the city charter, condemned as being offensive to the stated provision of the Constitution, sought to authorize, in default of payment of the fine and costs imposed on conviction, hard labor or imprisonment "until the fine and costs are paid." Mr. Justice McClellan said of the act approved December 12, 1892 (Acts 1892-93, pp. 94, 95):

"The statute involved in the case at bar is a much more flagrant attempt to authorize imprisonment for debt, in our opinion, than that denounced by the Supreme Court of Tennessee. State v. Paint Rock Coal & Coke Co., 92 Tenn. 81 , 36 Am.St.Rep. 68. It was not the avowed purpose of that act to enforce the payment of a debt by means of a prosecution under it. This one cannot be read without conviction that its purpose is to impose imprisonment for debt, and to coerce the payment of a debt by the duress it authorizes. Its requirement that the fine shall be paid only in money, that it shall be double the amount of the deposit, and that one-half of it--that is, a sum equal to the amount deposited--shall go to the person who made the deposit, tends, at least, to show that coercion of payment of the debt which the depositary owed the depositor, for the transaction created the relation of debtor and creditor between them, by means of the restraint which the imposition of the fine itself immediately

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