[Langham v. The State. ] Langham v. The State. Indictment for Enticing or Employing Laborer under Written Contract. 1. Enticing away, or employing, servant or laborer under written contract; validity of infant's contract.-An infant's contract, for the performance of labor or personal service, is voidable by him at his election; and when he has disaffirmed it, a person who afterwards employs him is not guilty of a violation of the statute (Rev. Code, § 3691), which makes it a penal offense to entice away or employ a laborer or servant, who has contracted in writing to serve another for a specified time, "such contract being in force, and binding on the parties thereto." (Overruling Murrell v. The State, 44 Ala. 367.) FROM the Circuit Court of Hale. Tried before the Hon. GEORGE H. CRAIG. JAMES E. WEBB, for the defendant, cited Francis v. Felmit, 4 Dev. & Bat. Law, 498; Whitmarch v. Hall, 3 Denio, 375; Medbury v. Watrous, 7 Hill, 110; Peters v. Lord, 18 Conn. 337; Vent v. Osgood, 18 Pick. 572; Weaver v. Jones, 24 Ala. 420; Clark & Co. v. Goddard, 39 Ala. 164; 1 Parsons on Contracts, 5th ed., 313; 2 Kent's Com. (5th ed.) 237; 1 Am. Leading Cases, ed. 1871, p. 306, n. 11. The case of Murrell v. The State (44 Ala. 367), he insisted, being inconsistent with these authorities, ought to be overruled. JOHN W. A. SANFORD, Attorney-General, with THOMAS J. SEAY, for the State, cited and relied on the case of Murrell v. The State, 44 Ala. 367. MANNING, J.-Appellant was indicted under section 3691 of the Revised Code, which makes it penal in any person, knowingly to interfere with, hire, employ, entice away, or induce to leave the service of another, any laborer or servant who has contracted in writing to serve for any specified time, before the expiration of the term contracted for, "such contract being in force and binding upon the parties thereto." The laborer or servant in this case was a negro boy, about fourteen or fifteen years of age, who, having become dissatisfied with his employer, left his plantation and premises, and afterwards went to defendant, and engaged to serve him as a laborer in his plantation. The defendant had not enticed or induced the laborer to leave; but the latter appears to [Langham v. The State.] have gone away of his own will, from his first employer, and hired himself to defendant. Was the boy restrained from doing so by a contract "in force and binding upon the parties thereto?" According to the common law, the contract of an infant, except for necessaries, can not be enforced against him; "nor can he be sued on his covenant as an apprentice; nor is his contract for labor and service generally binding."-1 Parsons on Contracts, 262-3, and cases cited; Clark & Co. v. Goddard, 39 Ala. 164. In the case last cited, the plaintiff in the lower court was a minor, who had been apprenticed, by a contract under seal, executed by him, to the defendants, to learn the art of a printer. After remaining two or three years in their employment, he left it, and obtained service in another office, from which he was discharged, in consequence of a notice and warning sent by defendants to that office and other printing offices, that plaintiff had been apprenticed to them, and they claimed his services. For the damage produced by being thus prevented from obtaining employment, the minor sued, and obtained a judgment against defendants, which was affirmed in this court. In respect to the contract of apprenticeship, the opinion says: "Neither would it do, in a case like the present, to hold that the infant should not be allowed to elect between the ratification and repudiation of his contract, until he attained lawful age. In most cases, the contract would have expended its force at that time; and to establish such a rule, would be to take from the infant all right to avoid the contract until it was executed. Surely, to withhold the right to renounce a voidable contract, would be as unjust as it is absurd." These authorities were not referred to in Murrell v. State (44 Ala. 367), in which our predecessors held, that the minority of a laborer did not prevent the contract from being binding upon him, in a case arising under section 3691 above referred to; and, therefore, sustained the prosecution. We feel compelled to overrule the decision there made, upon this point, and to hold that the contract between May and the boy John, in the present cause, being voidable by the latter, though not by May, was not a contract "binding upon the parties. thereto." It follows, that the court erred in refusing to give the seventh instruction requested on behalf of defendant. As our ruling on this point will probably be decisive of this prosecution, we do not consider any of the other questions argued. Let the judgment be reversed, and the cause be remanded. [Gregg v. The State. ] 55 116 58 100 55 116 107 137 Gregg v. The State. Indictment for Larceny. 1. Larceny of "outstanding crop of corn or cotton;” averment and proof of value. The larceny of "part of an outstanding erop of corn or cotton" being made a felony by statute (Sess. Acts 1874-5, p. 259), without regard to the value of the articles stolen, no averment or proof of value is necessary in a prosecution for such larceny; while, in a prosecution for petit larceny (Rev. Code, § 3708), such averment and proof are indispensable. 2. Same; conviction of petit larceny.-Under an indictment for such statutory offense, there can not be a conviction of petit larceny, since a growing crop was not the subject of larceny at common law, and the only offense created by the statute is grand larceny; and a verdict of guilty of petit larceny, under such an indictment, is an acquittal of the statutory felony, and a bar to another prosecution for the same offense; yet, if the stolen corn or cotton had been previously severed from the realty by a separate act, and was afterwards stolen by the defendant, he might be prosecuted for such petit larceny. FROM the Circuit Court of Wilcox. Tried before the Hon. JOHN K. HENRY. The indictment in this case contained but a single count, which charged that the defendant, Tony Gregg, "feloniously took and carried away fifty ears of corn, a part of an outstanding crop of corn, the property of Joe Ezell and Mrs. Patsy McConnell." The jury returned a verdict of "guilty of petit larceny," assessing the value of the stolen corn at twenty-five cents, and imposing a fine of one hundred dollars. The defendant moved in arrest of judgment, and to be discharged notwithstanding the verdict, because the indictment did not allege the value of the stolen corn, nor aver that it had any value. The court overruled these motions, and the defendant excepted. S. J. CUMMING, for the defendant.-1. The indictment charged the defendant with statutory grand larceny, and he was convicted of petit larceny. Even if no averment of value was necessary to a conviction of the statutory felony, it was indispensable to a conviction of the less offense.-Prindeville v. People, 42 Ill. 217; Sheppard v. The State, 42 Ala. 531; Bishop on Stat. Crimes, § 427; Bishop on Crim. Pro., vol. 1, $$ 541, 567; Archb. Crim. Pl. & Pr. (6th ed.) 364, note 1; 2 Hale's P. C. 183; 3 Chitty's Crim. Law, 947a; Crawford v. The State, 44 Ala. 382; Norris v. The State, 50 Ala. 126; Webb v. The State, 52 Ala. 422; Merrill v. The State, 45 Miss. 651; Wolf v. The State, 49 Ala. 359. [Gregg v. The State.] 2. The motion in arrest of judgment should have been sustained. Blount v. The State, 49 Ala. 381; Martin v. The State, 28 Ala. 71; Hope v. Commonwealth, 9 Metc. Mass. 134; Gore v. The State, 34 N. H. 510; Atkins v. The State, 16 Ark. 568; Rex v. Lookup, 3 Burr. 1901; 4 Bla. Com. 375; 1 Archb. Crim. Pl. & Pr. (6th ed.) 178-81; 1 Bishop's Crim. Pro. § 1108. 3. The verdict was an acquittal of the statutory offense, and the defendant ought to have been discharged notwithstanding the verdict.-Bell & Murray v. The State, 48 Ala. 684; Coleman v. The State, 3 Ala. 14; Martin v. The State, 28 Ala. 72. JNO. W. A. SANFORD, Attorney-General, for the State. STONE, J.-Under the act to amend section 3706 of the Revised Code of Alabama (Pamph. Acts of 1874-5, p. 259), several articles and chattels are numerated, the larceny of which is made a felony, without any reference to their value; and then there is added this clause: "and any person who steals any personal property, other than that herein before enumerated, exceeding twenty-five dollars in value, is guilty of grand larceny." The stealing of any of the enumerated articles is made grand larceny per se, no matter what may be the value of the article stolen. In fact, as to the articles named, value is not made an ingredient of the offense. "Part of an outstanding crop of corn," is one of the enumerated articles. In an indictment for the larceny of part of an outstanding crop of corn, as for the larceny of a horse, mare, gelding, &c., it is not necessary to aver that such article had any value.-Gabriel v. The State, 40 Ala. 357; Yarborough v. The State, 41 Ala. 405. It results from what we have said, that if the prisoner was shown to be guilty of stealing the corn charged, part of the outstanding crop of corn, the property of Joe Ezell and Mrs. Patsy McConnell, he could and should have been convicted of the felony, without any averment or proof of value. But the statute we have been construing, so far as it relates to an outstanding crop of corn or cotton, creates a new offense, unknown to the common law. Corn or cotton growing, or unsevered from the feehold, partakes of the nature of the realty, and, in the absence of the statute, is not the subject of larceny.-1 Washb. Real Prop. 6; 2 Whar. Amer. Cr. Law, $ 1751-2. The statute which created this offense, defined its grade, and declared the punishment therefor. There is no statute, or principle of the common law, which declares that it is a public offense to take or carry away growing or ungathered corn, under any circumstances other than those [Lawson v. The State.] which, under the act of February 20, 1875, make it a felony, and punish it as such. It follows from this, that while an outstanding crop of corn or cotton may be the subject of felonious larceny, it can not be the subject of petit larceny. There is another fatal objection to the present conviction. While the statute declares it is felony to steal any part of an outstanding crop of corn or cotton, without reference to its value, there is no such provision as to any of the subjects of petit larceny. See section 3708, Revised Code. An indictment for the offense last named must aver some value of the article alleged to be stolen; and the proof must show that it was valuable.- Wilson's case, 1 Por. 118; Sheppard v. The State, 42 Ala. 531; 2 Bish. Cr. Proc. § 713. The present indictment contains no averment of value. The principles declared above render it necessary that we reverse the judgment of conviction in this case. The verdict of the jury in this record operates an acquittal of the accused of the felony charged. He can not be again put on trial for that offense.-1 Brick. Dig. 518, §§ 985-6; Bell & Murray v. The State, 48 Ala. 684. In one possible contingency, a new indictment may be preferred against defendant, and a trial had for petit larceny; on none other, growing out of the act for which he was tried. That contingency is, that the corn had been broken or severed from the realty, and was afterwards, by an act separable from the breaking, stolen by defendant. This would constitute petit larceny. Should it be known that the supposed case can not be made out in proof, it will be useless to put the prisoner again on trial; and it will be alike due to him and to the public that he be set at liberty. Reversed and remanded. Let the prisoner remain in custody, until discharged by due course of law. Lawson v. The State. Indictment against Retailer of Spirituous Liquors. 1. Retailing spirituous liquors without license; what constitutes offense.--Under an indictment for retailing spirituous liquors without a license (Rev. Code, §3678), a conviction may be had on proof of a single act of selling; but, under an indictment for carrying on the business of retailing spirituous liquors without a license, in violation of the provisions of the revenue law, proof of a single act is not sufficient to authorize a conviction. FROM the Circuit Court of Randolph. |