Tbe defendant was tried, on appeal from a justice of tbe peace, for violation of tbe Revisal,, see. 3366, wbicb makes it a misdemeanor in certain counties “If any tenant or cropper shall procure advances from bis landlord to enable bim to make a crop on tbe land rented by him, and then willfully abandon tbe same without good cause and before paying for such advances” Tbe statute further provides tbe same punishment for tbe landlord if be shall willfully fail to make tbe advances promised.
Tbe court quashed tbe proceeding on tbe-ground that tbe statute contravened tbe Constitution, Art. I, sec. 16: “There shall be no imprisonment for debt in this State, except in cases of fraud.” This is in effect decided in State v. Norman, 110 N. C., 484, wbicb was a warrant for violating what is now tbe. Revisal, sec. 3431: “Where any person, with intent to cheat and defraud another, shall obtain any advances,” etc. Tbe Court approved there tbe following charge below: “In order to convict, tbe State must show to tbe full satisfaction of tbe jury something more than obtaining tbe advances, a promise to iiay 'for the same, and a breach of tbe promise. Nothing else being shown, these facts would constitute only a breach of contract, and for this tbe defendant could not be prosecuted criminally. Tbe jury must be fully satisfied of an element of fraud in tbe transaction.”
In State v. Torrence, 127 N. C., 550, wbicb was an indictment, under Tbe Code, sec. 1027 (now Revisal, see. 3434), for *804obtaining advances under tbe false pretence that the person is the owner of specific property, which he agrees to apply to' the debt so created, that statute is upheld solely on the ground that the offense is not the failure to pay the debt, but the fraudulent conversion or withholding the property, the -offense being analogous to “disposing of mortgaged property,” the property being pledged, in writing- (as the statute required), to be applied to the discharge of the lien for such advances. In State v. Whidbee, 124 N. C., 796, which was an indictment under the same section as in State v. Torrence, supra, the court quashed the indictment, because the pay check pledged was not then in existence, but was to become due to the pledger at a future date, hence “not a false representation of an existing fact.”
State v. Robinson, 143 N. C., 620, was an indictment under the Revisal, sec. 3367, almost identical with the Revisal, sec. 3366, now before us, but the case went off on another point and the constitutionality of the statute was not passed upon. The concurring opinion (page 631) refers to it, but only for the purpose of noting that the constitutionality of the statute had not been decided. The offense here charged has no element of fraud, and as the statute imposes imprisonment it cannot be sustained. Speaking only for myself, there is nothing, however, which forbids the General Assembly to authorize the imposition of the fine upon the tenant or the landlord for the conduct described in the statute, but the party Could not be imprisoned for nonpayment of the fine or costs, since that would be to allow by indirection what cannot be done directly.
But the warrant was properly quashed, in any view, because it simply charged abandonment of the crop, without alleging that this was done “without cause” and “before paying for such advances.” Unless those things were alleged and shown, there could be no conviction under the statute.
Affirmed.