Goolsby v. State

• Decision Date: 19 May 1925
• Docket Number: 6 Div. 627
• Citation: 104 So. 906,20 Ala.App. 654
• Parties: GOOLSBY v. STATE.
• Court: Alabama Court of Appeals

104 So. 906

20 Ala.App. 654

GOOLSBY v. STATE.

6 Div. 627

Court of Appeals of Alabama

May 19, 1925

Rehearing Denied June 30, 1925

Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge.

C.P Goolsby was convicted of obtaining money on a draft which was not paid, with intent to defraud, and he appeals. Reversed and rendered.

See also, Goolsby v. State, 104 So. 901.

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

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

BRICKEN P.J.

This appellant, defendant in the court below, was indicted, tried and convicted for the violation of an act of the Legislature known as the fraudulent check law. This act was approved November 1, 1921. Acts Sp.Sess.1921, p. 47. Several questions are presented for the consideration of this court, but the principal--in fact, controlling--question is the validity of the act under which this prosecution is based; the insistence being made that this act of the Legislature is unconstitutional, and that a prosecution under such act is illegal and void.

Upon a study of this question the writer became convinced that this insistence was well taken, and reached the conclusion that the judgment of conviction could not stand for that reason. This court thereupon made and entered the following order, certifying the question to the Supreme Court as under the statute made and provided:

"Certificate to the Supreme Court from the Court of Appeals of Alabama.

"Under the provisions of the statute (Code 1923, § 7322), the following question is submitted to the Supreme Court for determination: Is the act of the Legislature of Alabama approved November 1, 1921 (Acts Ala.Sp.Sess. 1921, pp. 47, 48), violative of the Constitution of Alabama?

"The caption of said act is as follows: 'To make it unlawful for any person to obtain money or other property or credit by check, draft or order which is not paid by the drawee; and where the same is not refunded or restored by such person on written demand mailed to his last known address; and to make the fact of such person not having on deposit with the drawee such money or other property prima facie evidence of said fraudulent intent.'

"A cause dependent upon this proposition solely is pending in this court.

"C.R. Bricken,

"Presiding Judge.

"Wm. H. Samford,

"James Rice,

"Judges.

"Certified on this 12th day of March, 1925."

The Supreme Court (all Justices concurring) agreed with this court that the act in question is unconstitutional, and in reply to the above-mentioned certification of this question made the following response, which is conclusive of this appeal:

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. 1921, 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, § 31); 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. art. 1, § 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...