Shilling v. State

• Decision Date: 11 October 1926
• Docket Number: 25788
• Citation: 109 So. 737,143 Miss. 709
• Court: Mississippi Supreme Court
• Parties: SHILLING v. STATE. [*]

109 So. 737

143 Miss. 709

SHILLING v. STATE. ^[*]

No. 25788

Supreme Court of Mississippi

October 11, 1926

Division B

1. MASTER AND SERVANT. To constitute offense of enticing laborer to leave employment, accused must have known of contract (Laws Miss. 1924, chapter 160, amending Code 1906, section 1146 [Hemingway's Code, section 874]; Constitution United States Amendment 13).

Under chapter 160, Laws of 1924, providing punishment for any person willfully interfering with, enticing away, or who shall knowingly employ, or shall in any manner induce a laborer or renter who has contracted with another person for a specified time to leave his employ or the leased premises before the expiration of his contract, etc., the defendant must have known of the contract at the time or prior to offering the inducement or hiring; and where the undisputed proof shows that he did not know of such contract at the time he hired the laborer, he should be acquitted.

2. CONSTITUTIONAL LAW. If statute defining crime is subject to two reasonable constructions, one of which would endanger its constitutionality, construction saving statute will be adopted.

In construing a statute denning a crime where there are two reasonable constructions, one of which would endanger the constitutionality of the statute, the court will adopt that construction which will save the statute from the constitutional objection.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county, HON. W. A. ALCORN, JR. Judge.

J. R Shilling was convicted of attempting to interfere with, to entice away, and to employ a laborer who had contracted with another, and he appeals. Reversed and judgment rendered.

Judgment reversed.

Simmons & Jackson, for appellant.

In order to be guilty of a violation of chapter 160, Laws of 1924, which is an amendment of section 1146, Code of 1906, the defendant must have actual knowledge of the contractual relationship existing between the laborer and the first contractor. Beale v. Yazoo Yarn Mill, 88 So. 411. No crime can be imputed to a man unless there is some criminal intent. None can be charged against Shilling as he had no knowledge of any contract. Then it is evident from the reasoning in the Beale case that if Shilling, in good faith and without any knowledge of any contract between Herrington and the negro James Young, contracted with Young and attempted to move him away, he did not violate the said section in any of its parts.

But the state in the court below urged that by reason of the amendment of the said statute, the rule in the Beale case, supra, was abrogated or changed, and that, therefore, it was not incumbent on the state to show actual knowledge on the part of the defendant of the contractual relations between the laborer and the first contractor or prosecutor; that the defendant was presumed to know, or was bound in law to know, of such relation and cannot defend on the ground that he did not know of such relation.

This position on the part of the state in the court below is contrary to the fundamental rule that nothing is presumed against a defendant in a criminal case or action, but that every element of the crime must be not only alleged, but proved beyond a reasonable doubt. The words "knowingly employ" contained in section 1146, Code of 1906, are retained in chapter 160, Laws of 1924. We submit, therefore, that there is nothing in these changes to deprive this defendant of any of the benefits of the rule announced in the Beale case, supra.

By way of analogy, the court's attention is called to the statute on False Pretenses, section 893, Hemingway's Code. There is nothing in said section about knowing the representations to be false and it is conceivable that a person might make a false representation with the intent to cheat and defraud, yet believing the representation to be true; but still the courts have required, and certainly it is the rule in this state, that it is incumbent upon the state to show by positive proof that the defendant knew the representations to be false. State v. Freeman, 103 Miss. 764, 60 So. 774; 11 R. C. L. 859.

The mere hiring of another who has breached his contract is no violation of the law. The fact that James Young left Mr. Herrington and went over and made a contract with Mr. Shilling was no violation of the law as to Young and none could be imputed to Mr. Shilling. It is shown by positive proof that Mr. Shilling had no knowledge of any such prior relationship. Sneed v. Gilman, 44 So. 830. See, also, Evans v. State, 83 So. 167; Jackson v. State, 16 So. 299; and Alford v. Pegues, 92 Miss. 558, wherein the rule is stated as follows: "Mere hiring of another who has breached his contract is no violation of the law."

This case should be reversed and the defendant discharged.

Rufus Creekmore, Special Assistant Attorney-General, for the state.

Counsel argue that the testimony fails to show that the defendant had knowledge of the existence of the contract between Young and Herrington and, therefore, they say that the conviction cannot be sustained, and rely on Beale v. Yazoo Yarn Mills, 125 Miss. 807, 88 So. 411. We must remember, however, that the statute which the court was construing in that case is different from the statute as it now exists, it having been amended by the legislature subsequent to the decision of the court in the Beale case. If the rule of law as laid down by the Beale case is still in effect, then the contention of appellant must prevail. If, on the other hand, the statute has been so changed in its wording as to abrogate the rule in this case, then his contention must fail.

It will be seen that the only changes in the statute are as follows: The phrase "knowingly employ" is changed to "who shall knowingly employ," and the phrase "or induce" is changed to "or who shall in any manner induce."

The change in the wording of the first of these phrases I deem immaterial as each of them means substantially the same thing. The change in the wording of the second phrase, however, to my mind, does create a substantially different situation and so completely changes the meaning of that phrase as to supersede any rule of construction which may have been adopted by the court with reference to the phrase as formerly worded.

This may best be seen by analyzing grammatically the portions of the old statute and the statute as amended which are here involved. Under the old statute the word "wilfully" is an adverb modifying and qualifying the verbs "interfere" and "entice." The word "knowingly" is an adverb which modifies and qualifies the verbs "employ" and "induce." This clearly shows that under the statute before its amendment the offense consisted of the wilful interference with, the wilful enticing away of the servant, or of knowingly employing the servant, or knowingly inducing him to leave his employer. This was what was held in the Beale case and in fact I am unable to see how any other construction could have been placed upon the statute as it was then written.

But when we analyze the statute as it now exists, we find the following: The word "wilfully" modifies the verbs "interfere" and "entice" and in this respect is the same as was the case under the statute before the amendment. The word "knowingly" is the adverb which modifies and qualifies the verb "employ." It is at this point that the change in the wording of the statute as made by the legislature becomes affected.

The next phrase now reads, "or which shall in any manner induce." The word "knowingly" no longer modifies the word "induce." Instead of saying "knowingly induce," the legislature by their act has said that the inducement need not be made knowingly, but has expressly said that "inducements made in any manner" which caused the laborer to leave his employer, constitute a violation of the statute. The words used by the legislature in making this change are clear and unambiguous. They are susceptible of one construction only and that is that they mean what they say.

In this connection we must remember that the theory of the state was not that the defendant employed Young, but that he induced him to leave his employment. The defendant sent a truck to Young's house, had his household goods loaded on the truck and was actually proceeding to have him move onto his place. It was by this method that the defendant attempted to induce Young to leave the employment of Herrington and he actually would have accomplished his purpose had it not been for the prompt action of Mr. Herrington in stopping the truck.

This was the "inducing" and it was for this that the defendant was tried and convicted; the entire testimony offered by the state was to that effect and it was on that theory that the jury received the case and returned its verdict.

Simmons & Jackson, in reply, for appellant.

Counsel for the state admits that the rule in the Beale case, 125 Miss. 807, 88 So. 411, is still in effect unless the legislature of 1924 by chapter 160 abrogated it by enlarging the statute by its inclusion of the words, "in any manner induce, etc."

We submit that if the theory of the state is correct, then the ancient rule of criminal intent is completely abrogated. If knowledge of the facts is not an essential element of the offense, then we are treading on dangerous ground. 8 R. C. L. 95; City of Jackson v. Gordon (Miss.), 80 So. 785.

The legislature never meant to place such a burden on the citizens of this state, so as to require a party who is about to make a contract to first ascertain if the other party interested in making the contract is or is not under a contract with some one else. He can ask him if such relations exist and if he states that there is not, then that certainly...