State v. Nix , 165 Ala. 126 ( 1910 )

McGLELLAN, J.

— This appeal is by the state of Alabama from a judgment based upon the adjudication of the constitutional invalidity of Code of 1907, § 6850. As presently important, the statute reads: “Enticing Away Servants, Renters, or Laborers under Written Contract, etc. — Any person who knowingly interferes with, hires, employs, entices away, or induces to leave the service of another, or attempts to hire, employ, entice away, or induce to leave the service of another, any laborer, or servant, renter, or share cropper, who has contracted in writing to serve such other penson for any given time, not to exceed one year before the expiration of the time contracted for. * * *”

The indictment pursues the form provided. — Criminal Code 1907, p. 669, form 55. Alternative averments in an indictment must each present an indictable offense; and if, in such an indictment, one or more of the alternatives expressed charge no offense, then the indictment is bad in toto. — Horton v. State, 53 Ala. 493; Hornsby v. State, 94 Ala. 55, 10 South. 522; Raisler v. State, 55 Ala. 64 — among others. Upon this premise of principle, it is insisted — and that was the view prevailing below — - that the alternatives, “hiring or employing” one within the description of the statute, are, though enumerated in the statute, acts violative of the inalienable constitutional right to enjoy life, liberty, and property.

The question was, in Tarpley’s Gase, 79 Ala. 271, and on the sound reasoning therein employed, decided adversely to appellee’s contention and affirmative of the statute’s constitutional validity. There is no occasion to reiterate at this time. Our recent decision of Toney v. State, 141 Ala. 120, 37 South. 332, 67 L. R. A. 286, 109 Am. St. Rep. 23, does not overrule- or impinge upon the ruling in Tarpley’s Gase. The statute condemned in Toney s Gase attempted to penalize mere breach of the contracts described therein, and this court pronounced it violative of the inalienable rights declared in our organic law and in that of the United States.

Section 6850 is directed against an entirely different conduct, viz., the tortious (at common law) mischief of knowingly interfering with or interrupting contractual relations of others. If this statute had undertaken to penalize the act of hiring or employing or engaging the servant, etc., without reference to the scienter, then the principle which Toney’s Gase illustrates would have applied to condemn it.

The court erred in sustaining the demurrer to the indictment. The judgment is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, Mayfield, and Sayre, JJ., concur.