BAILEY v. STATE OF ALABAMA, 211 U.S. 452

Mr. Justice Holmes delivered the opinion of the court. This is a writ of error- to reverse a judgment of the Supreme Court of the State of Alabama, affirming a judgment of a judge of the Montgomery City Court, which denied a discharge on habeas' corpus to the plaintiff in error. At the hearing on the writ in the City Court it appeared that after a preliminary trial before a justice of the peace the plaintiff in error was committed for detention on a charge of obtaining fifteen dollars under a contract in writing,, with intent to injure or defraud his employer.' At this stage the writ was issued.

If the Supreme Court had affirmed the denial of the discharge on the ground that the proper course was to raise the ■objections relied upon at the trial of the principal case on the merits and to take the question up by writ of error, it would have adopted the rule that prevails in this court and there would be nothing to be said. But. the Supreme'Court of the State dealt with the objections, and, as the matter is one of local procedure, it is not to be criticised for taking a different course. The unsatisfactoriness of such attempts to take a short cut will appear, however, we think, in a moment.

We gather from the opinion of the Supreme Court that the plaintiff in error is proceeded against under a law of 1907 (General Acts, 1907, p. 636), amending the Code of 1896, § 4730. This

section of the Code made it an offense punishable like larceny to enter.- into a contract in writing for service with intent to injure or defraud the employer, and, after thereby obtaining money or personal property from such employer, with such intent, without just cause and without refunding the money or paying for the property to refuse to perform the service.

The amendment, embodying and enlarging an earlier one, makes the refusal or failure without just cause prima fade evidence of the intent; makes the penalty a fine in double the damage suffered, one-half to go to the party injured, and creates a similar offense with regard to persons making contracts in writing “for the rent of land.” It is contended that the statute as it now stands is unconstitutional under the Thirteenth and Fourteenth Amendments. The presumption is said to be artificial and not drawn from the facts of life.

When coupled with the local rule that the party cannot testify to his actual intent, it is said practically to make a crime out of a mere departure from service, which it is said, and it seems to have been conceded by the Supreme Court of Alabama, could not be done. The trouble in dealing with this contention is due tó the meager facts on which this case comes before us at this stage.

If the principal case had been tried it is imaginable that it might appear that a certain class in the community was mainly affected, and that the usual course of events, including the consequences in case of inability to pay the fines, was such that in view of its operation and intent the whole statute ought to be held void. It may be, although presumptions of intent from somewhat remote subsequent conduct are not unknown to the common law, Commonwealth v. Rubin, 165 Massachusetts, 453, that the amendment creates .a presumption that cannot be upheld. But we cannot deal with these questions now.

All that appears from the record with regard to the foundation of the case against him is that the plaintiff in error is held on a charge of having obtained money under a written contract with intent to defraud. There is no doubt that such conduct may be made a crime. It may be questioned whether we ought to assume that the proceeding is under the statute, although it'is admitted on all hands. But if we do assume it, there is nothing as yet to show that the

section of the Code apart from the amendments is bad. The amendments are separable, as is sufficiently shown by the fact that the rest of the enactment originally stood without them. When the case comes to trial it may be that the prosecution will not rely upon the statutory presumption but will exhibit satisfactory proof of a fraudulent scheme, so that the validity of the addition to the statute will not come into question at all. It is true that it appears that the plaintiff in error was held for trial on the statutory evidence and with no other proof of-fraudulent intent.

But if that evidence was insufficient it hardly will be contended that this court should require the state courts to release all persons held for trial, where in its opinion the evidence fails to show probable cause. We repeat, the trouble with the whole case is that it is brought here prematurely by an attempt to take a short'cut.- And as the Supreme. Court of the State -would have been warranted in denying the writ on that ground, perhaps we have done a work of supererogation in giving further reasons for affirming its judgment. Judgment affirmed.