Lash v. State

• Citation: 14 So.2d 235,31 Ala.App. 121
• Decision Date: 16 March 1943
• Docket Number: 8 Div. 252.
• Parties: LASH v. STATE.
• Court: Alabama Court of Appeals

14 So.2d 235

31 Ala.App. 121

LASH v. STATE.

8 Div. 252.

Alabama Court of Appeals

March 16, 1943

Rehearing Denied April 6, 1943.

Appeal from Law and Equity Court, Lauderdale County; Raymond Murphy Judge.

Conforming to response by Supreme Court to certified question, 14 So.2d 229.

The response made by the Supreme Court to the certification by the Court of Appeals is as follows:

THOMAS Justice.

The Court of Appeals, under provisions of Code 1940, T. 13, § 88 submits to this court the question of whether or not Section 54, Title 14, Code 1940, is in violation of the Constitutions of the State of Alabama or of the United States.

In submission to this Court, the Court of Appeals recites that it is of opinion that said section is subject to the same vice as section 3447 of the Code of 1923, held void by the Supreme Court of the United States in Thornhill v. State, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093.

The statute in question was incorporated in Michie's Code of 1928 as § 3447, and came from the Acts of 1921, p. 31, § 1. The section is now codified as Code 1940, T. 14, § 54, and was approved by this court in Bankers' Fire & Marine Ins. Co. v. Sloss et al., 229 Ala. 26, 155 So. 371 (as applying to illegal voting trusts). See, also, Royal Ins. Co., Ltd., v. All States Theatres, Inc., 242 Ala. 417, 6 So.2d 447. The criminal case of Welch v. State, 28 Ala.App. 273, 183 So. 879, adverted to §§ 3447 and 3448 of the Code of 1923. The many authorities are collected in Standard Chemical & Oil Co. v. City of Troy, 201 Ala. 89, 91, 77 So. 383, L.R.A.1918C, 522, and in State v. Goldstein, 207 Ala. 569, 93 So. 308, on police power. What is the effect of the statute in question, tested by the provisions of the Constitutions of the United States and of this State, as interpreted by the Supreme Court of the United States, as challenged by demurrer?

Several questions have been considered by the state and federal courts, to the effect that the phrase, "without a just cause or legal excuse for so doing," as employed by the statute before us and as employed in the affidavit in the case of Lash v. State, 14 So.2d 229 in the Court of Appeals, is not without meaning legally, inherently and historically and means an unlawful act or purpose or without legal excuse. Moreland Theatres Corp. v. Portland Moving Picture Machine Operators' Protective Union, etc., and Granada Theatre Corp. v. Portland Moving Picture Machine Operators Protective Union, 140 Or. 35, 12 P.2d 333; Schwind v. Gibson et al., 220 Iowa 377, 260 N.W. 853; Swan v. Dailey-Luce Auto Co. et al., 221 Iowa 842, 265 N.W. 143, 148; State v. Caldwell, Mo.Sup., 231 S.W. 613; State ex rel. Nelson v. Henry, 221 Wis. 127, 266 N.W. 227; In re Municipal Garage in and for City of Utica, 141 Misc. 15, 252 N.Y.S. 18; People v. Wallach, 62 Cal.App. 385, 217 P. 81; State v. Wholfort, 123 Kan. 62, 254 P. 317; State v. Williams, 166 S.C. 63, 164 S.E. 415; Gentry v. Gentry, 161 Va. 786, 172 S.E. 157; State v. Donzi, 133 La. 925, 63 So. 405; State v. Baker, 112 La. 801, 36 So. 703.

To a right decision of the question before us, it will be noted that, this expression used in the complaint or affidavit in this cause and appearing in the statute means "unlawfully." Bankers' Fire & Marine Ins. Co. v. Sloss et al., 229 Ala. 26, 155 So. 371; and the authorities supra.

In Greek-American Produce Co. v. Illinois Central R. Co., 4 Ala.App. 377, 58 So. 994, 995, Mr. Justice De Graffenried, for that court, on authority of United States v. Kirby, 7 Wall. 482, 19 L.Ed. 278, said: "'All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It is always to be presumed that the Legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter. The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," did not extend to the surgeon, who opened the vein of a person that fell down in the street in a fit."'

To this end this court has declared that in construing statutes, each section, paragraph and clause thereof must be construed as standing in pari materia and as a whole system, when they have the same general purpose; and this is necessary to determine the legislative intent. Shaw v. Kinney, 227 Ala. 170, 149 So. 227; Williams v. Schwarz, 197 Ala. 40, 72 So. 330, 336, Ann.Cas.1918D, 869; Wages v. State, 225 Ala. 2, 141 So. 707.

There are many decisions of the Supreme Court of the United States to the effect that the construction of a statute by its highest court in a state affords to a federal court an interpretation of its scope and meaning, and from which the validity of the statute in question, under the Constitution of the United States, is to be considered and determined in its application or administration. Smiley v. Kansas, 196 U.S. 447, 455, 25 S.Ct. 289, 49 L.Ed. 546; Cargill Co. v. Minnesota ex rel. Railroad & Warehouse Commission, 180 U.S. 452, 466, 21 S.Ct. 423, 45 L.Ed. 619; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369, Ann.Cas.1912C, 160; Jacobson v. Massachusetts, 197 U.S. 11, 24, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann. Cas. 765. That is to say, that the interpretation by the highest court of the state of the statutes of the state will not be disregarded by the Supreme Court of the United States and a different construction given that statute which will render it repugnant to the Constitution of the United States unless its natural context and administration are so repugnant to the organic law. Missouri Kansas & Texas Ry. Co. v. McCann et al., 174 U.S. 580, 586, 19 S.Ct. 755, 43 L.Ed. 1093; New York, Lake Erie & Western R. Co. v. Pennsylvania, 158 U.S. 431, 436, 15 S.Ct. 896, 39 L.Ed. 1043; Hughes, Federal Practice, Jurisdiction & Procedure, vol. 6, § 3708, p. 235, note 86, and many cases cited; Milk Wagon Drivers Union of Chicago, etc., v. Meadowmoor Dairies, 312 U.S. 287, 298, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200. It follows from this as a corollary thereof that the Federal Court is concerned solely with the effect and operation of the law as enforced by the state and whether the effect is violative of the Constitution of the United States. Corn Products Co. v. Eddy, 249 U.S. 427, 39 S.Ct. 325, 63 L.Ed. 689; Standard Oil Co. v. Graves, 249 U.S. 389, 39 S.Ct. 320, 63 L.Ed. 662.

It may not be out of place to advert to the rule of a criminal conspiracy which is that a distinct and substantive offense is committed when the unlawful agreement is entered into, Smith v. State, 8 Ala.App. 187, 62 So. 575; Connelly v. State, 241 Ala. 132, 1 So.2d 608, and that when an act has been committed by one conspirator in furtherance of that common design that is unlawful, all of the conspirators will be subject to trial for the conspiracy to commit the act or for the act itself as committed pursuant to that conspiracy. Jones v. State, 174 Ala. 53, 57 So. 31; West v. State, 25 Ala.App. 492, 149 So. 354; Smith v. State, 8 Ala.App. 187, 62 So. 575; Clark v. State, 240 Ala. 65, 197 So. 23.

The foregoing authorities likewise establish the proposition that such unlawful community of purpose entered into as a conspiracy need not be proven by positive testimony. It is rarely so to be shown. It must be determined by the triers of fact from the conduct of parties and all the relative testimony (Morris v. State, 146 Ala. 66, 41 So. 274; Clark v. State, supra); that of the attendant circumstances applying and accompanying the doing of the act, and from the conduct of the defendant subsequent to the criminal act. Swinney et al. v. State, 225 Ala. 273, 142 So. 562. Underhill's Crim.Ev., 4th Ed., p. 1418, § 779.

It may be further noted that when a prima facie conspiracy is established to commit an unlawful act, the several acts or declarations on the part of any of the conspirators in connection with and in furtherance of the common purpose, before the commission of the offense, may be shown in evidence, Abingdon Mills v. Grogan, 167 Ala. 146, 52 So. 596; Kennedy v. State, 182 Ala. 10, 62 So. 49; Underhill's Crim.Ev., 4th Ed., p. 1415, § 778; the declarations and acts only of the defendant after the consummation of the conspiracy may be considered against him, Clark v. State, supra.

With this view of the decisions in this and other jurisdictions, we consider the immediate decisions of the Supreme Court of the United States touching the 14th Amendment to the Constitution of the United States, holding that it does not destroy the power of the state to duly enact proper police legislation as to subjects within the control of the state. Standard Chemical & Oil Co. v. City of Troy, supra; State v. Goldstein, supra; Davis v. Massachusetts, 167 U.S. 43, 47, 17 S.Ct. 731, 42 L.Ed. 71, and cases cited; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26, 29, 9 S.Ct. 207, 32 L.Ed. 585; Giozza v. Tiernan, 148 U.S. 657, 13 S.Ct. 721, 37 L.Ed. 599; Jones v. Brim, 165 U.S. 180, 182, 17 S.Ct. 282, 41 L.Ed. 677.

In the recent case by this court of Carter et al. v. Knapp Motor Co. Inc., 11 So.2d 383, 384, 385, 386, it is observed of the administration by our courts as follows:

"Our decisions are to the effect that the right to conduct one's business without the wrongful interference of others is a valuable property right which will be protected if necessary, by injunctive process. Bowen v Morris, 219 Ala. 689, 123 So. 222. And the enjoyment of the good name and good will of a business is...