ON MOTION FOR REHEARING. The motion for rehearing should be granted. In addition to the reasons set forth in the foregoing dissent (and as indicated below), I think, in the light of the judgment of the majority of the court, that the trial court erred in not charging the jury relatively to those special assignments of error as to the admissibility of evidence, and in certain excerpts from the charge *Page 220 to the jury, unnecessary here to be related. Even though it be held by the majority of the court that the sale in this case was one for cash, it yet remained necessary for the State to show that the element of failure to pay before removal and disposition was criminal within Code, § 5-9914. When the State showed the facts of failure to pay and removal before payment, the defendant, in rebuttal, had the right to show that the removal was in accordance with the provision of a valid contract specifically allowing removal before payment for the product, thereby rebutting the element of criminal removal under Code, § 5-9914, and leaving the offense, if any, of which the defendant may have been charged, that of a misdemeanor as defined by Code, § 5-9916, making it penal only as to the failure of payment (in this case) of the check, the subject-matter of the indictment.
Furthermore, I think, in the light of the judgment of the majority of the court, that, upon the State showing a cash sale, removal or disposal before payment, and loss to the seller, the defendant had the right to rebut the presumption of intent to defraud which arose on proof of these elements. While the State did not have to prove, as such, the intent to defraud, but could rely on the presumption as to the intent, it did not follow that this presumption was not rebuttable. It did not follow that there was a hiatus or break in the trial when the defendant could not defend against this presumption, and that he had nothing left to him but the verdict of guilt and sentence of the court. Even though the literal facts shown by the State, supporting the necessary elements, gave rise to the presumption, he had the right to overcome that presumption by rebuttal facts as to the intent, showing the lack of existence of intent to defraud, notwithstanding the proved facts by the State supporting the elements and giving rise to the presumption remained themselves unchallenged. In the field of criminal jurisprudence, and certainly in our State, the intent to commit crime, whether arising by proof of such intent, or by presumption upon proved facts, is always rebuttable. Especially is this true of offenses arising from commercial transactions, where the facts made penal are malum prohibitum, instead of malum in se. In the latter class of cases the evil is inherent because of the nature of the act. In the former it is criminal because of the statute regulating the conduct. Under our present constitution, in the malum *Page 221 prohibitum class of cases the legislature can go no further than to lay down a rule of evidence providing that the proof of a certain state of facts is sufficient to raise a presumption of intent to commit the crime, and can not go further in any commercial transaction. If it did go further it would have the effect of imprisonment for debt.