Opinion
6 Div. 540.
March 20, 1934.
Appeal from Circuit Court, Jefferson County; John P. McCoy, Judge.
C. A. Chambers was convicted of issuing a worthless check, and he appeals.
Reversed and remanded.
The verdict of the jury was: "We, the Jury, find the defendant guilty and fix his fine at $100.00."
The judgment entry (of date May 4, 1933) recites:
"It is therefore considered by the court, and it is the judgment of the court, that the defendant is guilty as charged in the affidavit, in accordance with the verdict of the jury in this cause, and that he pay a fine of one hundred ($100.00) dollars and costs of this cause.
"And on this the 18th day of May, 1933, the said defendant being in open court, and having presently failed to pay said fine or to confess judgment with good and sufficient surety for the same, it is therefore considered by the court, and it is ordered and adjudged by the court, and it is the sentence of the law, that the said defendant, the said C. A. Chambers, perform hard labor for the county for thirty days, because of his failure to pay said fine or to confess judgment with good and sufficient security therefor.
"And said defendant duly excepts to the sentence for fine in this case.
"And the costs legally taxable against the defendant in this cause amounting to sixty-three and 05/100 dollars not being presently paid or secured, it is ordered by the court that the said defendant perform additional hard labor for the county for eighty-four days at the rate of 75 cents per day to pay said costs."
Section 4158, Code, as amended by the act of 1931, is in substance as follows: "Upon conviction, shall be fined not more than one thousand dollars to be paid in money only and may also be sentenced to hard labor for the county for not longer than six months, and in addition thereto the court, justice, or jury trying the issue, unless the property has been returned or the value thereof paid to the owner, must assess the value of each article, and such assessed value shall be made an item of costs in the case, and shall be paid in like manner as the other costs taxed against the defendant, and the clerk of the court shall issue a certificate to the owner of the property for the value of such property as assessed by the court or jury. The amount of such assessed value must not be included in any bill of costs paid by the state, or for which a defendant is sentenced to hard labor." Gen. Acts 1931, p. 648, § 1.
James Esdale and John T. Batten, both of Birmingham, for appellant.
The act of 1931 is void. Goolsby v. State, 213 Ala. 351, 104 So. 901; Id., 20 Ala. App. 654, 104 So. 906; Carr v. State, 106 Ala. 35, 17 So. 350, 34 L.R.A. 634, 54 Am. St. Rep. 17; Acts 1921, p. 47; Const. 1901, §§ 1, 6, 13, 20. The judgment is unauthorized and void. Gen. Acts 1931, p. 648; Authorities, supra.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
The provisions of the amendatory act of 1931 neither add to nor detract from section 4158 of the Code, in so far as the elements of the offense are concerned. The amendatory act provides for collection by the injured person of the amount of his loss, but expressly provides that a defendant may not be sentenced to hard labor for nonpayment thereof. The act is valid. Frazier v. State, 24 Ala. App. 353, 135 So. 409; Bates v. State, 24 Ala. App. 507, 137 So. 465.
Our Supreme Court, in response to a certification, etc., to it by this court, in the case of Goolsby v. State, 213 Ala. 351, 104 So. 901, expressed the opinion that sections 4159 and 4160 of the Code of 1923 were constitutional and valid.
Later, we ourselves, with the approval of the Supreme Court, by tacit implication, held that the three sections of the Code of 1923, viz., 4158, 4159, and 4160, constituting, together, what is popularly known as the "Bad Check Law," were, as amended by the act of the Legislature approved August 20, 1927 (Gen. Acts Ala. 1927, pp. 286 and 287), likewise constitutional. See Bates v. State, 24 Ala. App. 507, 137 So. 465; Id. (certiorari denied) 223 Ala. 527, 137 So. 465.
We observe nothing in the amendments added to sections 4158 and 4159 of the Code, supra, by the act approved July 23, 1931 (Gen. Acts Ala. 1931, pp. 648 and 649, §§ 1, 2), which would operate to cause either of said sections as thus amended to become unconstitutional and void. But prosecutions pitched thereunder must conform to the terms of the said sections.
Here, it appears, appellant was sentenced to hard labor "because" of his failure to pay the fine assessed; and the provisions of the two Code sections referred to were in obvious respects otherwise not complied with.
For these errors the judgment of conviction is reversed, and the cause remanded.
Reversed and remanded.