Harris v. State

ANDERSON, J. Acts 1903, p. 345, amending section 4730 of the Code of 1896, provides that “any person who, with intent to injure or defraud his employer, enters into a contract in writing for the performance of any act or service, and thereby obtains money or other personal property from such employer,” etc. It is clear [159] that, to come within the influence of the statute, the sole consideration moving from the employe to the employer must be the performance of personal service by him, and none other; and when the employe undertakes, in order to secure the advances, other things in addition to performance of service, such as having one’s wife move on the employer’s place and cultivate a crop on shares, the contract ceases to be such a one as is contemplated by the statute. It is not sufficient that ordinarily the lesser is included in the greater, as this is a criminal statute, aimed solely at those who enter into contracts to perform personal service, and not those including such obligation in connection with other things. Anything said to the contrary in the case of Copeland v. State, 97 Ala. 30, 12 South. 181, was not decisive of said case, and was therefore dictum. Moreover, an examination of the record in said case discloses a very different contract from the one before us in the present case. The trial court erred in not sustaining the objection to the introduction of the contract in evidence, and the judgment is reversed, and one is here rendered discharging the defendant. Tyson, C. J., and Haralson and Simpson, JJ., concur. Dowdell and Denson, JJ., dissent.