#### STATE v. DAVID ISLEY.

(Filed 19 November, 1913.)

Criminal Law — Promise to Work — Intent—Presumptions—Statutes —Constitutional Law.

Tbe defendant was indicted (Revisal, sec. 3431) for promising to work, etc., and obtaining money, goods, etc., upon tbe strength of tbat promise, and for failing to do tbe work, etc., and there was evidence in support of tbe charges in tbe indictment: Held,, this ease is controlled by 8. v. Griffin, 154 N. C., 611, and tbe motion to dismiss tbe action is sustained under chapter 73, Laws 1913.

Appeal by defendant from Long, J., at July Special Term, 1913, of EaNdolph.

Tbe defendant was indicted under tbe following bill of indictment :

. “Tbe jurors for tbe State, upon tbeir oatbs, present tbat David Isley on 1 June, A. D. 1912, did willfully and unlawfully and witb intent to cheat and defraud J. A. Ellis obtain certain advances in money, fertilizers, com, flour, provisions, goods, wares, and merchandise from said J. A. Ellis, upon and by color of a certain promise and agreement tbat tbe said David Isley would begin work and labor for said J. A. Ellis, from whom said David Isley obtained said money, goods, provisions, merchandise, etc., and tbe said David Isley, making said promise and agreement, did unlawfully and willfully fail to commence and complete said work as aforesaid according to contract, without a lawful excuse, contrary to tbe form of tbe statute in such case made and provided.”

Tbe defendant entered tbe plea of not guilty, and on tbe trial tbe following evidence was introduced:

J. A. Ellis, witness for tbe State, testified tbat defendant was bis tenant; tbat be let defendant have certain advances in merchandise, etc., upon defendant’s promise to pay for same in work; tbat defendant failed to do said work, and when witness asked him why be did not come and do tbe work, defendant said' tbat be bad to get some shoes for bis children.

*492State rested, and tbe defendant demurred to tbe evidence and moved to dismiss under tbe act of 1913. Motion overruled; defendant exceeded.

There was a verdict of guilty, and from tbe judgment pronounced, tbe defendant appealed.

Attorney-General Bichett for the State.

R. 0. Kelly for the defendant.

Allen, J.

Tbe decision óf tbis appeal is controlled by S. v. Griffin, 154 N. C., 611, in wbicb tbe statute under Vbicb tbe defendant is indicted was fully discussed in an elaborate and learned opinion by Associate Justice Brown, and upon tbe authority of that case tbe judgment is reversed, with directions to dismiss tbe action under chapter 73, Public Laws of 1913.

Reversed.