130 Ala. 71
Ala.
1900
TYSON, J.

In Ex parte King, 102 Ala. 182, the act of February 21, 1893, comprising section 4755, was held to be constitutional. The court said: “The act is in line with our other statutes against false pretenses, fraud, cheats, acts to injure and the like. One who violates the act, is imprisoned not for the debt he owes the proprietor, and not to make him pay it, but to punish him for a wrong he has perpetrated, which is made a crime. And, this is no more of a special privilege to the hotel-keeper, than the statute again-st burglary from a store or dwelling, is to the merchant who owns the store, or to the owner of the dwelling.”

The statute dealt with in Carr v. The State, 106 Ala. 35, is materially different, and, indeed, entirely different with respect to the question involved 'in it, from the one lieie under consideration, and that case does not conflict with King’s Case. The statute is not unconstitutional.

The purpose of this státute is to punish such persons who by fraud induce the proprietor or keeper of a hotel or boarding house to furnish board or lodging, and fail .or refuse to par" for the same. If misrepresentations are' relied upon as the inducement for the furnishing by the proprietor of the board or lodgings, they must, of necessity, have been made before the board ,is furnished. If made after the board has been obtained, they could *74not have possibly induced the furnishing of it. Again, the mrsrcpreseiitation must have been relied upon by the proprietor and have been the controlling inducement to his furnishing the board and lodging. In short, the proprietor must be shown to have been deceived to his injury. If he knew the representations were false, or if he believed they were false, or if he did not believe the statement or representation to be true, or if lie believed the representation, but if they had no influence upon his 'conduct, no deception was practiced. These essentials are requisite to the maintenance of a civil action or defense predicated upon false representations, and surely nothing less should suffice to support a criminal prosecution.

This statute is analogous in its essential features to the one making it a crime to obtain property by false pretenses (§ 4729) —the two belonging to the same family and are closely allied in nature, character and purposes. They are so classified in the Code as shown by the title to the article in which they are found.—Chap. 154, Art. 1, of Crim. Code, p. 267. Under this statute, it has never been supposed that the false pretense, to be indictable, should not have deceived. Deception and injury are of the very essence of the crime.—Colly v. State, 55 Ala. 85; Woodbury v. State, 69 Ala. 242. On the undisputed evidence, the defendant was entitled to have the affirmative charge, requested by him, given.

Reversed and remanded.