219 U.S. 219
ALONZO BAILEY, Plff. in Err.,
STATE OF ALABAMA.
Argued October 20, 21, 1910.
Decided January 3, 1911.
[219 U.S. 219, 220] Messrs. Edward S. Watts, Fred S. Ball, and Daniel W. Troy for plaintiff in error.
Assistant Attorney General Harr, with Attorney General Wickersham, as amici curiae.
[219 U.S. 219, 224] Messrs. Alexander M. Garber and Thomas W. Martin for defendant in error.
Mr. Justice Hughes delivered the opinion of the court:
This is a writ of error to review a judgment of the supreme court of the state of Alabama, affirming a judgment of conviction in the Montgomery city court. The statute upon which the conviction was based is assailed as in violation of the 14th Amendment of the Constitution of the United States upon the ground that it deprived the plaintiff in error of his liberty without due process of law and denied him the equal protection of the laws, and also of the 13th Amendment, and of the act of Congress providing for the enforcement of that Amendment, in that the effect of the statute is to enforce involuntary servitude by compelling personal service in liquidation of a debt.
The statute in question is 4730 of the Code of Alabama of 1896, as amended in 1903 and 1907. The section of the Code as it stood before the amendments provided that any person who, with intent to injure or defraud his employer, entered into a written contract for service, and thereby obtained from his employer money or other personal property, and with like intent and without just cause, and without refunding the money or paying for the property, refused to perform the service, should be punished as if he had stolen it. In 1903 (Gen. Acts [Ala.] 1903, p. 345) the section was amended so as to make the refusal or failure to perform the service, or to refund the money, or pay for the property, without just cause, prima facie evidence of the intent to injure or defraud. This amendment was enlarged by that of 1907. Gen. Acts. (Ala.) 1907, p. 636. The section, thus amended, reads as follows:
There is also a rule of evidence enforced by the courts of Alabama which must be regarded as having the same effect as if read into the statute itself, that the accused, for the purpose of rebutting the statutory presumption, shall not be allowed to testify 'as to his uncommunicated motives, purpose, or intention.' 161 Ala. 77, 78, 49 So. 886.
Bailey, the plaintiff in error, was committed for detention on the charge of obtaining $15 under a [219 U.S. 219, 229] contract in writing with intent to injure or defraud his employer. He sued out a writ of habeas corpus, challenging the validity of the statute. His discharge was refused, and the supreme court of the state affirmed the order, holding the statute to be constitutional. 158 Ala. 18, 48 So. 498. On writ of error from this court it was held that the case was brought here prematurely, and the questions now presented were expressly reserved. Bailey v. Alabama, 211 U.S. 452 , 53 L. ed. 278, 29 Sup. Ct. Rep. 141.
Having failed to obtain his release on habeas corpus, Bailey was indicted on the following charge:
Motion to quash and a demurrer to the indictment were overruled. Upon the trial the following facts appeared: On December 26, 1907, Bailey entered into a written contract with the Riverside Company, which provided:
The manager of the employing company testified that at the time of entering into this contract there were present only the witness and Bailey, and that the latter then obtained from the company the sum of $15; that Bailey worked under the contract throughout the month of January and for three or four days in February, 1908, and then, 'without just cause, and without refunding the money, ceased to work for said Riverside Company, and has not since that time performed any service for said company in accordance with or under said contract, and has refused and failed to perform any further service thereunder, and has, without just cause, refused and failed to refund said $15.' He also testified, in response to a question from the attorney for the defendant, and against the objection of the state, that Bailey was a negro. No other evidence was introduced.
The court, after defining the crime in the language of the statute, charged the jury, in accordance with its terms, as follows:
Bailey excepted to these instructions, and requested the court to instruct the jury that the statute and the [219 U.S. 219, 231] provision creating the presumption were invalid, and further that 'the refusal or failure of the defendant to perform the service alleged in the indictment, or to refund the money obtained from the Riverside Company under the contract between it and the defendant, without cause, does not of itself make out a prima facie case of the defendant's intent to injure or defraud said Riverside Company.'
The court refused these instructions and Bailey took exception.
The jury found the accused guilty, fixed the damages sustained by the injured party at $15, and assessed a fine of $30. Thereupon Bailey was sentenced by the court to pay the fine of $30 and the costs, and in deafult thereof to hard labor 'for twenty days in lieu of said fine, and one hundred and sixteen days on account of said costs.'
On appeal to the supreme court of the state, the constitutionality of the statute was again upheld and the judgment affirmed. 161 Ala. 75, 49 So. 886.
We at once dismiss from consideration the fact that the plaintiff in error is a black man. While the action of a state, through its officers charged with the administration of a law fair in appearance, may be of such a character as to constitute a denial of the equal protection of the laws (Yick Wo v. Hopkins, 118 U.S. 356, 373 , 30 S. L. ed. 220, 227, 6 Sup. Ct. Rep. 1064), such a conclusion is here neither required nor justified. The statute, on its face, makes no racial discrimination, and the record fails to show its existence in fact. No question of a sectional character is presented, and we may view the legislation in the same manner as if it had been enacted in New York or in Idaho. Opportunities for coercion and oppression, in varying circumstances, exist in all parts of the Union, and the citizens of all the states are interested in the maintenance of the constitutional guaranties, the consideration of which is here involved. [219 U.S. 219, 232] Prior to the amendment of the year 1903, enlarged in 1907, the statute did not make the mere breach of the contract, under which the employee had obtained from his employer money which was not refunded or property which was not paid for, a crime. The essential ingredient of the offense was the intent of the accused to injure or defraud. To justify conviction, it was necessary that this intent should be etasblished by competent evidence, aided only by such inferences as might logically be derived from the facts proved, and should not be the subject of mere surmise or arbitrary assumption.
This was the construction which the supreme court of Alabama placed upon the statute, as it then stood, in Ex parte Riley, 94 Ala. 82, 10 So. 528. In that case the court said (id. 83, 84):
We pass, then, to the consideration of the amendment, through the operation of which under the charge of the trial court this conviction was obtained. No longer was it necessary for the prosecution to comply with the rule of the Riley Case (supra) in order to establish the intent to injure or defraud which, as the court said, constituted the gist of the offense. It was 'the difficulty in proving the intent, made patent by that decision,' which 'suggested the amendment of 1903.' Bailey v. State, 158 Ala. p. 25, 48 So. 498. By this amendment it was provided, in substance, that the refusal or failure to perfom the service contracted for, or to refund the money obtained, without just cause, should be prima facie evidence of the intent to injure or defraud.
But the refusal or failure to perform the service, without just cause, constitutes the breach of the contract. The justice of the grounds of refusal or failure must, of course, be determined by the contractual obligation assumed. [219 U.S. 219, 234] Whatever the reason for leaving the service, if, judged by the terms of the contract, it is insufficient in law, it is not 'just cause.' The money received and repayable, nothing more being shown, constitutes a mere debt. The asserted difficulty of proving the intent to injure or defraud is thus made the occasion for dispensing with such proof, so far as the prima facie case is concerned. And the mere breach of a contract for personal service, coupled with the mere failure to pay a debt which was to be liquidated in the course of such service, is made sufficient to warrant a conviction.
It is no answer to say that the jury must find, and here found, that a fraudulent intent existed. The jury by their verdict cannot add to the facts before them. If nothing be shown but a mere breach of a contract of service and a mere failure to pay a debt, the jury have nothing else to go upon, and the evidence becomes nothing more because of their finding. Had it not been for this statutory presumption, supplied by the amendment, no one would be heard to say that Bailey could have been convicted.
Prima facie evidence is sufficient evidence to outweigh the presumption of innocence, and if not met by opposing evidence, to support a verdict of guilty. 'It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.' Kelly v. Jackson, 6 Pet. 632, 8 L. ed. 526.
We are not impressed with the argument that the supreme court of Alabama has construed the amendment to mean that the jury is not controlled by the presumption, if unrebutted, and still may find the accused not guilty. That court, in its opinion, said: 'Again, it must be borne in mind that the rule of evidence fixed by the statute does not make it the duty of the jury to convict on the evidence referred to in the enactment, if unrebutted, whether satisfied thereby of the guilt of the accused beyond a reasonable doubt or not. On the contrary, [219 U.S. 219, 235] with such evidence before them, the jury are still left free to find the accused guilty or not guilty, according as they may be satisfied of his guilt or not, by the whole evidence.' 161 Ala. 78, 49 So. 886.
But the controlling construction of the statute is the affirmance of this judgment of conviction. It is not sufficient to declare that the statute does not make it the duty of the jury to convict, where there is no other evidence but the breach of the contract and the failure to pay the debt. The point is that, in such a case, the statute authorizes the jury to convict. It is not enough to say that the jury may not accept that evidence as alone sufficient; for the jury may accept it, and they have the express warrant of the statute to accept it as a basis for their verdict. And it is in this light that the validity of the statute must be determined.
It is urged that the time and circumstances of the departure from service may be such as to raise not only an inference, but a strong inference, of fraudulent intent. There was no need to create a statutory presumption, and it was not created for such a case. Where circumstances are shown permitting a fair inference of fraudulent purpose, the case falls within the rule of Ex parte Riley (supra), which governed prosecutions under the statute before the amendment was made. The 'difficulty,' which admittedly the amendment was intended to surmount, did not exist where natural inferences sufficed. Plainly, the object of the statute was to hit cases which were destitute of such inferences, and to provide that the mere breach of the contract and the mere failure to pay the debt might do duty in their absence.
While, in considering the natural operation and effect of the statute, as amended, we are not limited to the particular facts of the case at the bar, they present an illuminating illustration. We may briefly restate them. Bailey made a contract to work for a year at $12 a month. He [219 U.S. 219, 236] received $15, and he was to work this out, being entitled monthly only to $ 10.75 of his wages. No one was present when he made the contract but himself and the manager of the employing company. There is not a particle of evidence of any circumstance indicating that he made the contract or received the money with any intent to injure or defraud his employer. On the contrary, he actually worked for upwards of a month. His motive in leaving does not appear, the only showing being that it was without legal excuse and that he did not repay the money received. For this he is sentenced to a fine of $30 and to imprisonment at hard labor, in default of the payment of the fine and costs, for 136 days. Was not the case the same in effect as if the statute had made it a criminal act to leave the service without just cause and without liquidating the debt? To say that he has been found guilty of an intent to injure or defraud his employer, and not merely for breaking his contract and not paying his debt, is a distinction without a difference to Bailey.
Consider the situation of the accused under this statutory presumption. If, at the outset, nothing took place but the making of the contract and the receipt of the money, he could show nothing else. If there was no legal justification for his leaving his employment, he could show none. If he had not paid the debt, there was nothing to be said as to that. The law of the state did not permit him to testify that he did not intend to injure or defraud. Unless he were fortunate enough to be able to command evidence of circumstances affirmatively showing good faith, he was helpless. He stood, stripped by the statute of the presumption of innocence, and exposed to conviction for fraud upon evidence only of breach of contract and failure to pay.
It is said that we may assume that a fair jury would convict only where the circumstances sufficiently indicated a fraudulent intent. Why should this be assumed [219 U.S. 219, 237] in the face of the statute and upon this record? In the present case the jury did convict, although there is an absence of evidence sufficient to establish fraud under the familiar rule that fraud will not be presumed, and the obvious explanation of the verdict is that the trial court, in accordance with the statute, charged the jury that refusal to perform the service, or to repay the money, without just cause, constituted prima facie evidence of the commission of the offense which the statute defined. That is, the jury were told in effect that the evidence, under the statutory rule, was sufficient, and hence they treated it as such. There is no basis for an assumption that the jury would have acted differently if Bailey had worked for three months, or six months, or nine months, if in fact his debt had not been paid. The normal assumption is that the jury will follow the statute, and, acting in accordance with the authority it confers, will accept as sufficient what the statute expressly so describes.
It may further be observed that under the statute, there is no punishment for the alleged fraud if the service is performed or the money refunded. If the service is rendered in liquidation of the debt, there is no punishment; and if it is not rendered, and the money is not refunded, that fact alone is sufficient for conviction. By a statute passed by the legislature of Alabama in 1901, it was made a misdemeanor for any person who had made a written contract to labor for or serve another for any given time, to leave the service before the expiration of the contract, and without the consent of the employer, and to make a second contract of similar nature with another person without giving the second employer notice of the existence of the first contract. This was held unconstitutional upon the ground that it interfered with freedom of contract. Toney v. State, 141 Ala. 120, 67 L.R.A. 286, 109 Am. St. Rep. 23, 37 So. 332, 3 A. & E. Ann. Cas. 319. But, judging it by its necessary operation and obvious effect, the fundamental purpose plainly was to compel, under the sanction [219 U.S. 219, 238] of the criminal law, the enforcement of the contract for personal service, and the same purpose, tested by like criteria, breathes despite its different phraseology through the amendments of 1903 and 1907 of the statute here in question.
We cannot escape the conclusion that, althought the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime those who simply fail or refuse to perform contracts for personal service in liquidation of a debt; and judging its purpose by its effect, that it seeks in this way to provide the means of compulsion through which performance of such service may be secured. The question is whether such a statute is constitutional.
This court has frequently recognized the general power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own government. Fong Yue Ting v. United States, 149 U.S. 698, 479 , 37 S. L. ed. 905, 925, 13 Sup. Ct. Rep. 1016. In the exercise of this power numerous statutes have been enacted providing that proof of one fact shall be prima facie evidence of the main fact in issue; and where the inference is not purely arbitrary, and there is a rational relation between the two facts, and the accused is not deprived of a proper opportunity to submit all the facts bearing upon the issue, it has been held that such statutes do not violate the requirements of due process of law. Adams v. New York, 192 U.S. 585 , 48 L. ed. 575, 24 Sup. Ct. Rep. 372; Mobile, J. & K. C. R. Co. v. Turnipseed, decided by this court December 19, 1910 [ 219 U.S. 35 , 55 L. ed. --, 31 Sup. Ct. Rep. 136].
The latest expression upon this point is found in the case last cited, where the court, by Mr. Justice Lurton, said: 'That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law, or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact [219 U.S. 219, 239] presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed. If a legislative provision not unreasonable in itself, prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him.'
In this class of cases where the entire subject-matter of the legislation is otherwise within state control, the question has been whether the prescribed rule of evidence interferes with the guaranteed equality before the law, or violates those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law. But where the conduct or fact, the existence of which is made the basis of the statutory presumption, itself falls within the scope of a provision of the Federal Constitution, a further question arises. It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions. And the state may not in this way interfere with matters withdrawn from its authority by the Federal Constitution, or subject an accused to conviction for conduct which it is powerless to proscribe.
In the present case it is urged that the statute as amended, through the operation of the presumption for which it provides, violates the 13th Amendment of the Constitution of the United States and the act of Congress passed for its enforcement. [219 U.S. 219, 240] The 13th Amendment provides:
Pursuant to the authority thus conferred, Congress passed the act of March 2, 1867, chap. 187, 14 Stat. at L. 546, the provisions of which are now found in 1990 and 5526 of the Revised Statutes (U. S. Comp. Stat. 1901, pp. 1266, 3715), as follows:
The language of the 13th Amendment was not new. It reproduced the historice words of the ordinance of 1787 for the government of the Northwest territory, and gave them unrestricted application within the United States and all places subject to their jurisdiction. While the immediate concern was with African slavery, the [219 U.S. 219, 241] Amendment was not limited to that. It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag.
The words involuntary servitude have a 'larger meaning than slavery.'
While the Amendment was self-executing, so far as its terms were applicable to any existing condition, Congress was authorized to secure its complete enforcement by appropriate legislation. As was said in the Civil Rights Cases: 'By its own unaided force and effect it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the Amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.' 109 U.S. 20 , 27 L. ed. 842, 3 Sup. Ct. Rep. 18.
The act of March 2, 1867 (Rev. Stat. 1990 and 5526, supra), a was a valid exercise of this express authority. Clyatt v. United States, 197 U.S. 207 , 49 L. ed. 726, 25 Sup. Ct. Rep. 429. It declared that all laws of any state, by virtue of which any attempt should be made 'to establish, maintain, or enforce, directly or [219 U.S. 219, 242] indirectly, the voluntary or involuntary service or labor of any person as peons, in liquidation of any debt or obligation, or otherwise,' should be null and void.
Peonage is a term descriptive of a condition which has existed in Spanish America, and especially in Mexico. The essence of the thing is compulsory service in payment of a debt. A peon is one who is compelled to work for his creditor until his debt is paid. And in this explicit and comprehensive enactment, Congress was not concerned with mere names or manner of description, or with a particular place or section of the country. It was concerned with a fact, wherever it might exist; with a condition, however named and wherever it might be established, maintained, or enforced.
The fact that the debtor contracted to perform the labor which is sought to be compelled does not withdraw the attempted enforcement from the condemnation of the statute. The full intent of the constitutional provision could be defeated with obvious facility if, through the guise of contracts under which advances had been made, debtors could be held to compulsory service. It is the compulsion of the service that the statute inhibits, for when that occurs, the condition of servitude is created, which would be not less involuntary because of the original agreement to work out the indebtedness. The contract exposes the debtor to liability for the loss due to the breach, but not to enforced labor. This has been so clearly stated by this court in the case of Clyatt, supra, that discussion is unnecessary. The court there said:
The act of Congress, nullifying all state laws by which it should be attempted to enforce the 'service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise,' necessarily embraces all legislation which seeks to compel the service or labor by making it a crime to refuse or fail to perform it. Such laws would furnish the readiest means of compulsion. The 13th [219 U.S. 219, 244] Amendment prohibits involuntary servitude except as punishment for crime. But the exception, allowing full latitude for the enforcement of penal laws, does not destroy the prohibition. It does not permit slavery or involuntary servitude to be established or maintained through the operation of the criminal law by making it a crime to refuse to submit to the one or to render the service which would constitute the other. The state may impose involuntary servitude as a punishment for crime, but it may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the service or pay the debt.
If the statute in this case had authorized the employing company to seize the debtor, and hold him to the service until he paid the $15, or had furnished the equivalent in labor, its invalidity would not be questioned. It would be equally clear that the state could not authorize its constabulary to prevent the servant from escaping, and to force him to work out his debt. But the state could not avail itself of the sanction of the criminal law to supply the compulsion any more than it could use or authorize the use of physical force. 'In contemplation of the law, the compulsion to such service by the fear of punishment under a criminal statute is more powerful than any guard which the employer could station.' Ex parte Hollman, 79 S. C. 22, 21 L.R.A.(N.S.) 249, 60 S. E. p. 24, 14 A. & E. Ann. Cas. 1109
What the state may not do directly it may not do indirectly. If it cannot punish the servant as a criminal for the mere failure or refusal to serve without paying his debt, it is not permitted to accomplish the same result by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction and punishment. Without imputing any actual motive to oppress, we must consider the natural operation of the statute here in question (Henderson v. New York [Henderson v. Wickham] 92 U. S. p. 268, 23 L. ed. 547), and it is apparent that it furnishes a convenient instrument for thecoercion [219 U.S. 219, 245] which the Constitution and the act of Congress forbid; an instrument of compulsion peculiarly effective as against the poor and the ignorant, its most likely victims. There is no more important concern than to safeguard the freedom of labor upon which alone can enduring prosperity be based. The provision designed to secure it would soon become a barren form if it were possible to establish a statutory presumption of this sort, and to hold over the heads of laborers the threat of punishment for crime, under the name of fraud, but merely upon evidence of failure to work out their debts. The act of Congress deprives of effect all legislative measures of any state through which, directly or indirectly, the prohibited thing, to wit, compulsory service to secure the payment of a debt, may be established or maintained; and we conclude that 4730, as amended, of the Code of Alabama, in so far as it makes the refusal or failure to perform the act or service, without refunding the money or paying for the property prima facie evidence of the commission received of the crime which the section defines, is in conflict with the 13th Amendment, and the legislation authorized by that Amendment, and is therefore invalid.
In this view it is unnecessary to consider the contentions which have been made under the 14th Amendment. As the case was given to the jury under instructions which authorized a verdict in accordance with the statutory presumption, and the opposing instructions requested by the accused were refused, the judgment must be reversed.
Reversed and cause remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Holmes, dissenting:
We all agree that this case is to be considered and decided in the same way as if it arose in Idaho or New York. [219 U.S. 219, 246] Neither public document nor evidence discloses a law which, by its administration, is made something different from what it appears on its face, and therefore the fact that in Alabama it mainly concerns the blacks does not matter. Yick Wo v. Hopkins, 118 U.S. 356 , 30 L. ed. 220, 6 Sup. Ct. Rep. 1064, does not apply. I shall begin, then, by assuming for the moment what I think is not true, and shall try to show not to be true, that this statute punishes the mere refusal to labor according to contract as a crime, and shall inquire whether there would be anything contrary to the 13th Amendment or the statute if it did, supposing it to have been enacted in the state of New York. I cannot believe it. The 13th Amendment does not outlaw contracts for labor. That would be at least as great a misfortune for the laborer as for the man that employed him. For it certainly would affect the terms of the bargain unfavorably for the laboring man if it were understood that the employer could do nothing in case the laborer saw fit to break his word. But any legal liability for breach of a contract is a disagreeable consequence which tends to make the contractor do as he said he would. Liability to an action for damages has that tendency as well a fine. If the mere imposition of such consequences as tend to make a man keep to his promise is the creation of peonage when the contract happens to be for labor, I do not see why the allowance of a civil action is not, as well as an indictment ending in fine. Peonage is service to a private master at which a man is kept by bodily compulsion against his will. But the creation of the ordinary legal motives for right conduct does not produce it. Breach of a legal contract without excuse is wrong conduct, even if the contract is for labor; and if a state adds to civil liability a criminal liability to fine, it simply intensifies the legal motive for doing right; it does not make the laborer a slave.
But if a fine may be imposed, imprisonment may be [219 U.S. 219, 247] imposed in case of a failure to pay it. Nor does it matter if labor is added to the imprisonment. Imprisonment with hard labor is not stricken from the statute books. On the contrary, involuntary servitude as a punishment for crime is excepted from the prohibition of the 13th Amendment in so many words. Also the power of the states to make breach of contract a crime is not done away with by the abolition of slavery. But if breach of contract may be made a crime at all, it may be made a crime with all the consequences usually attached to crime. There is produced a sort of illusion if a contract to labor ends in compulsory labor in a prison. But compulsory work for no private master in a jail is not peonage. If work in a jail is not condemned in itself, without regard to what the conduct is it punishes, it may be made a consequence of any conduct that the state has power to punish at all. I do not blink the fact that the liability to imprisonment may work as a motive when a fine without it would not, and that it may induce the laborer to keep on when he would like to leave. But it does not strike me as an objection to a law that it is effective. If the contract is one that ought not to be made, prohibit it. But if it is a perfectly fair and proper contract, I can see no reason why the state should not throw its weight on the side of performance. There is no relation between its doing so in the manner supposed, and allowing a private master to use private force upon a laborer who wishes to leave.
But all that I have said so far goes beyond the needs of the case as I understand it. I think it a mistake to say that this statute attaches its punishment to the mere breach of a contract to labor. It does not purport to do so; what it purports to punish is fraudulently obtaining money by a false pretense of an intent to keep the written contract in consideration of which the money is advanced. (It is not necessary to cite cases to show that such an intent [219 U.S. 219, 248] may be the subject of a material false representation.) But the import of the statute is supposed to be changed by the provision, that a refusal to perform, coupled with a failure to return the money advanced, shall be prima facie evidence of fraudulent intent. I agree that if the statute created a conclusive presumption, it might be held to make a disguised change in the substantive law. Keller v. United States, 213 U.S. 138, 150 , 53 S. L. ed. 737, 741, 29 Sup. Ct. Rep. 470, 16 A. & E. Ann. Cas. 1066. But it only makes the conduct prima facie evidence,-a very different matter. Is it not evidence that a man had a fraudulent intent if he receives an advance upon a contract over night and leaves in the morning? I should have thought that it very plainly was. Of course, the statute is in general terms, and applies to a departure at any time without excuse or repayment, but that does no harm except on a tacit assumption that this law is not administered as it would be in New York, and that juries will act with prejudice against the laboring man. For prima facie evidence is only evidence, and as such may be held by the jury insufficient to make out guilt. 161 Ala. 78, 49 So. 886. This was decided by the supreme court of Alabama in this case, and we should be bound by their construction of the statute, even if we thought it wrong. But I venture to add that I think it entirely right. State v. Intoxicating Liquors, 80 Me. 57, 12 Atl. 794, 7 Am. Crim. Rep. 291. This being so, I take it that a fair jury would acquit, if the only evidence were a departure after eleven months' work, and if it received no color from some special well-known course of events. But the matter well may be left to a jury, because their experience as men of the world may teach them that in certain conditions it is so common for laborers to remain during a part of the season, receiving advances, and then to depart at the period of need, in the hope of greater wages at a neighboring plantation, that when a laborer follows that course there is a fair inference of fact that he intended it from the beginning. The Alabama statute, [219 U.S. 219, 249] as construed by the state court and as we must take it, merely says, as a court might say, that the prosecution may go to the jury. This means, and means only, that the court cannot say, from its knowledge of the ordinary course of events, that the jury could not be justified by its knowledge in drawing the inference from the facts proved. In my opinion, the statute embodies little if anything more than what I should have told the jury was the law without it. The right of the state to regulate laws of evidence is admitted, and the statute does not go much beyond the common law. Com. v. Rubin, 165 Mass. 453, 43 N. E. 200.
I do not see how the result that I have reached thus far is affected by the rule laid down by the court, but not contained in the statute, that the prisoner cannot testify to his uncommunicated intentions, and therefore, it is assumed, would not be permitted to offer a naked denial of an intent to defraud. If there is an excuse for breaking the contract, it will be found in external circumstances, and can be proved. So the sum of the wrong supposed to be inflicted is that the intent to go off without repaying may be put further back than it would be otherwise. But if there is a wrong it lies in leaving the evidence to the jury,-a wrong that is not affected by the letting in or keeping out an item of evidence on the other side. I have stated why I think it was not a wrong.
To sum up, I think that obtaining money by fraud may be made a crime as well as murder or theft; that a false representation, expressed or implied, at the time of making a contract of labor, that one intends to perform it, and thereby obtaining an advance, may be declared a case of fraudulently obtaining money as well as any other; that if made a crime it may be punished like any other crime; and that an unjustified departure from the promised service without repayment may be declared a sufficient case to go to the jury for their judgment; all without in any [219 U.S. 219, 250] way infringing the 13th Amendment or the statutes of the United States.
Mr. Justice Lurton concurs in this dissent.