97 Ala. 68 | Ala. | 1892
— 'Section 3832 of the Code of 1886 provides that “ any defendant, on whom a fine is imposed on a conviction for a misdemeanor, who in open court signs a written contract, approved in writing by the judge of the court in •which the conviction is had, whereby in consideration of another becoming his surety on a confession of judgment for the fine and costs, agrees to do any act, or perform any service for such person, and who after being released on such confession of judgment, fails and refuses, without sufficient excuse, to be determined by the jury, to do the act or perform the service, which in such contract he agreed to do or perform, must, on conviction, be fined,” &c. Appellant was tried for an alleged violation of this law.
Under the principles declared by this court, in construing this section, in Smith v. State, 82 Ala. 40; Wynn v. State, Ib. 55, and Ex parte Davis, 95 Ala. 9, and upon a just interpretation of the section, upon its face, the contract entered into by appellant with his surety, in this case, is such as will not support a conviction. The language of the statute is, “Any defendant . . . who agrees to do any act, or perform any service, for such person.” It is thus manifest that the creation of the relation of employer and employee between the surety and defendant is contemplated, whereby the latter undertakes to do the act or perform the serviceyor the former, the compensation for which shall be applied to the payment and discharge of the fine and costs adjudged against him, for which the former has confessed judgment. In Smith v. State, supra, we said that the con
In the present case, the contract provides, in effect, that, at the direction of Brown, the surety, he and the defendant shall engage in the business of farming together, on shares; Brown to furnish the land, houses and stock and feed for the stock, and all necessary farming implements with which to work the farm, and be allowed to apply defendant’s half interest in the products of the farm to the payment of the fine and costs, until the whole amount of the fine and costs are fully repaid to him in defendant’s interest or part of the products of the farm or farms; and it is further stipulated that if the crop of the year 1891 be insufficient to repay Brown the amount of said fine and costs, then the defendant agrees to work with Brown, either by the month at reasonable wages, or on shares, as above stated, until he is so paid the amount of the fine and costs in defendant’s labor or shares of the crop or crops, as said Brown may prefer or direct.
It is clear that this contract creates no relation of employer and employee between the parties. It does not, in any sense, stipulate for the performance of any act or service by defendant for the surety. The parties enter upon a joint business venture, to-wit: farming. The one party agrees to contribute to this venture the land, stock, feed for the stock and the farming implements; the other party the necessary labor. They are to divide the crops produced equally between them. Each^has the same interest in, and control over, the business and its products as the other. Neither is in the service of the other, or does any act for the other. What is
Again, sec. 3075 of the Code provides that parties thus situated have each a lien upon the interest of the other in the crops for any balance due him for provisions, supplies, teams, materials, labor, services and money, or either, furnished to aid in cultivating and gathering such crops, under contract, or when the interest of such crops require it, in case of a failure of either to contribute the amount and means as agreed upon by the parties; which lien may be ’enforced by attachment. Under this contract, and the operation of this law, if Brown made any such advances to defendant, he became the owner, in equity, of defendant’s one-half interest in the crops, to the extent of the amount of such advances; and, as we have seen under the statute last cited, he was authorized to furnish labor, not only by contract with the defendant, but against the latter’s will, on his failure to furnish it, if the interest of the crops so required. Thus, in ascertaining defendant’s share of the crops to be applied to the payment of the fine and costs, his share of the gross products would have to be diminished to the extent of the advances made him, if any. The contract, therefore, extends, beyond a security for the fine and costs, and has the effect of securing all advances of the kind designated which Brown may make to the defendant. The bill of exceptions shows that the. parties farmed on shares for the year 1891, and that defendant’s share of the crop was insufficient to pay the fine and costs, and on January 13th, 1892, defendant left the premises. In view of what we have said, no criminal offense was committed. The judgment of the Criminal Court is reversed, and a judgment will be here entered discharging the defendant from further prosecution.