This is a writ of error to reverse a judgment of the supreme court of Alabama (-Ala.-) 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 $15 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 criticized 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 facie 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 13th and 14th 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.