(Dissenting.) — The statute under which defendant was convicted provides that: “Any person who, with intent to defraud his employer, enters into a contract in writing for the performance of an act or service and with like intent obtains from such employer money or other personal property shall be guilty of a misdemeanor,” etc. — Acts 1911, p. 93.
One of the essential elements of the crime is, as seen a binding written contract for the performance of the act or service; -for without such a contract there can be no crime under the statute quoted, however fraudulent be the intent.—McIntosh’s Case, 117 Ala. 128, 23 South. 668; Harris’ Case, 156 Ala. 158, 47 South. 340; Tennyson’s Case, 97 Ala. 78, 12 South. 391; Riley’s Case, 94 Ala. 82, 10 South. 528; and citations under section 6845 of the Code of 1907.
The contracts of infants, as the defendant is., are voidable, and, when avoided, as the contract here was, by his refusal to perform the service, the case stands as if there had been no contract (Langham’s Case, 55 Ala. 114); and the writer is therefore unable to square the logic of holding the defendant liable crijninally on account of the contract, as the majority of the court nec*435essarily do, with the logic of that holding that civilly he would not be .liable, as undoubtedly he would not. The following authorities sustain the writer, he thinks, in his dissent to the holding of the majority, to wit: State v. Howard, 88 N. C. 650; Jones v. State, 31 Tex. Cr. R. 252, 20 S. W. 578; authorities supra; Langham's Case, supra; Driscol's Case, 77 Ala. 85; 22 Cyc. 622. Infancy is, as a general rule, no defense against a tort, just as it is, as a general rule, no defense' against a crime, but, when the tort grows out of a contract, the rule is different.—Grove v. Nevill, 1 Keb. 778; Doran v. Smith, 49 Vt. 353; 16 Am. & Eng. Ency. Law, 308, 310. So, likewise, when the crime is predicated on a contract of the infant which has been avoided, infancy is a good defense, the writer thinks, against the crime. See authorities cited next before the last cited.