
    4477.
    Kemp v. The State.
    Decided December 21, 1912.
    Accusation, of cheating and swindling; from city court of Valdosta—-Judge Cranford. September 27, 1912.
    
      8. M. Varnedoe, for plaintiff in error.
   Russell, J.

It being undisputed, in the evidence, that the accused was arrested at the instance of the prosecutor and placed in jail before the date set for the commencement of the contract of labor upon which the advance of money was made, the conviction of the defendant of a violation of the “labor-contract law” of 1903 (Penal Code, § 715) was unauthorized by the evidence. The circumstances adduced by the State might authorize the conclusion that the accused had formed a fraudulent, intent, but that intent could not be legally operative so as to enter into the constitution of a crime, until failure to enter upon his contract, at the time set for its commencement. The fact that one entertains an intent to commit a crime, no matter how heinous, will not charge him with guilt of the violation of penal law, unless, in furtherance of the-intent; some act is committed, capable of proof, which of itself is a violation of the law; and though the purchase of a railroad ticket to Jesup instead of to Naylor might indicate that the accused had not-intended to comply with his contract, still it would not have been impossible for the accused and his wife to have gone to Jesup and have returned to Kinderlou in Lowndes county in time to start to work in pursuance of his contract, and at the time specified therein. Furthermore, under the terms of the statute, the accused had until the time set for the commencement of his services the right to repay the money advanced; and, no matter what his intent at the time he purchased the ticket, presumably there remained in his favor the locus penitentise, —an opportunity and a possibility that he would recede from his fraudulent intention and comply with his contract when the time for its performance had arrived. Judgment reversed.  