The defendant may be guilty, but his guilt was not legally established. The burden of establishing his guilt devolves upon the State, and if he be guilty the fact can be shown, as it must be, by sufficient evidence. The evidence, as it appears in the record, not being sufficient to authorize a conviction of the violation of the labor act of 1903, we feel it to be our duty to grant a new trial. The learned trial judge erred in overruling the defendant’s motion for a new trial, for the reason that the verdict, so far as the evidence is concerned, is contrary to law. The only facts shown by the State, as disclosed bjr the record, were that the witness, Jones, paid $108 for Ambrose Fuller, and at the same time made a contract with said Fuller in behalf of his (Jones’) employer, Johnson, by the terms of which contract Fuller was to work twelve months for Johnson. The contract appears in the record, and is as follows:
‘'’Georgia, Sumter county. I, Ambrose Fuller, ’do solemnly swear that I am not under a written contract as emploj'ee, tenant, cr cropper, with any person for the period or any part thereof covered by the contract I am about to make with Mr. R. 17. Johnson. Signature of the affiant: Ambrose Fuller (his x mark). Sworn to and subscribed before me, this 12th day of December, 1906. Signature of attesting officer: G. E. Buchanan, N. P. S. Co., Ga.”
*699for instance, the note to secure which the mortgage was given ivas not due until January 1, 1908, the employer would have no right whatsoever to apply the wages of the defendant to the payment of the mortgage indebtedness. As the mortgagor was the mother of the defendant, and as, by the very nature of the case, if the defendant’s wages were to be applied to the payment of the $108 mortgage and interest thereon, the result of defendant’s contract ■ would be that he would get nothing himself for his labor during the entire year, and as the court can take judicial knowledge of the fact that food and clothing are necessary and ordinarily must be bought by those who use them,- the contract, if thus construed, in the absence of any proof of the contents of the mortgage, would evidence a system of peonage, which this court is now asked to uphold.
Taking the case as-we find it, the evidence shows that the defendant had worked nearly four months for the prosecutor upon the contract; and the only payment shown by the State and called an “advance” is the sum of $2. To make a ease which would authorize the jury to infer fraudulent intent, the State should have shown that the $10 a month for the time which had elapsed had been paid to the defendant, and that when he obtained the $2 he became thereby indebted just that amount, or some other amount which he had not repaid, either by working on his contract or by returning the money, and that thereby his employer had sustained a loss either of the $2 or some portion of it. There is no legal evidence showing that the defendant ever received anything from his employer except the $2, and all of the evidence is clear that he worked in pursuance of his contract from December 12, 1906, to . April 9, 1907. It is true that the prosecutor testified that this ’ $2 was an advance. It is insisted that the word “advance” necessarily means a payment of money which had not been earned, and, for that reason, that the use of that word by the witness establishes the fact that all pre-existing indebtedness for labor had been paid by the prosecutor to the 'defendant. We hold that such is a reasonable construction of the word “advance;” and yet the use of that word by the witness established nothing for the jury. The jury, instead of being given the facts upon which the witness based his conclusion, and from which they might have drawn an entirely different conclusion, were compelled to adopt a mere *700opinion of- the witness, which may or may not have been well founded. In our judgment, this opinion volunteered by the witness had no evidential value. If it should hereafter appear, upon the trial which we now order, that the prosecutor had complied with his agreement and had paid the defendant $10 per month for nearly four months during which he had been employed prior to the payment of the $2, and that, therefore, at the time the $2 was paid he owed the defendant nothing, and if it should further appear that the $2 was not repaid and the defendant quit the service of his employer without sufficient cause, the conviction of the’ defendant would be authorized. But if it should appear that the defendant quit the service of his employer with a balance still in his favor for work done, there could be no conviction. And this would be true regardless of the intent of the’ defendant; for the prosecutor would not have sustained any loss by reason of the advance. The pajrment of the wages to which we have alluded might be shown by proof of payment directly to the defendant; or •if it can be established that there was am agreement embodied in the mortgage, or otherwise evidenced in writing as part of the contract, that the wages of the defendant were to be applied to the payment of the indebtedness secured by the mortgage, for the benefit and protection of the mortgagor, and that his wages were thus paid to him by having been so applied that, and that for that reason no part of the wages which had been earned by the defendant 'had been paid at the time the $2 was advanced, and that thereby the prosecutor sustained loss, a conviction can be sustained; but this record does not disclose any of these essential facts. The fact that the employer had taken other security does not in any way illustrate the intention of the accused at the time he procured the advance. This was our ruling in Harwell v. State, ante; and ’ for this reason the learned trial judge well says in his opinion, filed in the record, that “a verdict of guilty of the original advance of ’$108 at the time the contract was made can not be upheld.” And for the further reason that in the Mulkey case the evidence showed that the defendant entered upon a contract and worked more than three months for the prosecutor after that advance was made. It is clear to our minds,'under the evidence, that the $108 in this case was'not, strictly speaking,- an advance upon the contract; because there is' no evidence that the defendant requested *701the prosecutor to pa}' bis indebtedness, and it is testified that one purpose of making the advancement and securing his mother’s mortgage was to indemnify the witness against loss on a criminal bond which, so far as appears from the evidence, was in no way connected with this case. In the absence of evidence to the contrary, it is to be presumed that the mortgagee had security ample for the dual purpose. In the absence of express direction to apply the defendant’s wages as a credit upon the $108 debt, the defendant would have the right each month, before the maturity of the mortgage, to demand payment of his wages; and it is only in ease there was such express direction that the prosecutor would have the right to refuse to pay the defendant his wages, and to apply them upon the debt evidenced by the mortgage. It not being made clearly to appear that the defendant had received any advance at the time that he quit the service of his employer, nor that the employer was defrauded or sustained any loss, a new trial is ordered. Judgment reversed.