— Under the act “the better to secure the payment of fines and costs in criminal cases in this State,” approved February 23, 1883, — Acts Ala. 1882-83, p. 166, — a defendant who is convicted and fined in any of the courts of this State, may procure his enlargement on certain conditions. In Lee v. State, 75 Ala. 29, we considered the constitutionality of this statute, and held it constitutional. Under this statute, Monroe "Wynn obtained his liberation from actual custody, by contracting with one Floyd to confess judgment with him for fine and costs, which had been imposed on him, and in consideration thereof Wvnn contracted to serve Floyd on certain terms, until the fine and
The present indictment was against Wynn, for violating that contract. The indictment charges that “Monroe Wynn, in consideration of M. D. Floyd becoming such security, agreed to do and perform good and faithful work for said Floyd, at the rate of seven dollars per month and feed, until the full amount of said fine and costs and other advances were fully paid; and that said Monroe Wynn failed to comply with the provisions of the said contract, and left or escaped from the service of said M. D. Floyd, before said fine and costs and other advances were fully paid.”
In Green Smith v. State, at the present term, we decided that a convict could not be detained in involuntary servitude or custody for the payment of advances. Only the fine and costs imposed on a conviction for crime or misdemeanor, come within the provisions of the statute under which the present indictment was framed. The charge in this case is, that the defendant left or escaped from the service “ before said fine and costs and other advances were fully paid.” This is not the equivalent of an averment that he left or escaped before the fine and costs were paid, and it follows that the indictment is bad.
There is another fatal imperfection in this case. The statute makes it a misdemeanor to “leave or escape ” from the service. It makes no provision for inefficient service. The proof shows no indictable breach of the contract, and the defendant ought not to have been convicted, as the statute now stands.
There is nothing in the objection, that the appellant was a minor.
Reversed, but not remanded. Let the prisoner be discharged.