#### STATE v. RANSOM ETHERIDGE.

(Filed 17 February, 1915.)

Criminal law — Master and Servant — Tenant or Cropper — Interpretation of Statutes.

One who is a tenant or cropper of another is not his servant, within the meaning of Revisal, sec. 3365, making it an indictable offense to entice a servant to leave his master.

Appeax by defendant from Ferguson, J., at September Term, 1914, of Edgecombe.

Attorney-General Bichett and Assistant Attorney-General Galvert for the State.

G. M. T. Fountain & Son for defendant.

‘Waxkeb, J.

Tbe defendants were indicted, under Revisal, see. 3365, for enticing one Frank Battle, a servant, to leave bis master, wbo, it is alleged, was J. R. Bunting, tbe prosecutor. It will be necessary to consider only one exception of tbe defendants, wbo were convicted below, and appealed. They contend tbat tbe evidence showed tbat Frank Battle was not a servant, but either a tenant or a cropper, and if either, they are not indictable, even if it is true tbat they bad induced bim to leave bis alleged employer. As we are of tbe opinion tbat tbe position is well taken, tbat Frank Battle was not a servant, and tbat defendants, therefore, were not indictable for enticing bim from tbe service of J. R. Bunting, they are entitled to a dismissal, even if their other exceptions are not valid, Tbe facts are substantially like those in S. v. Hoover, 107 N. C., 795, where tbe present Ghief Justice says: “Tbe contract, as testified to by tbe prosecutor, was as follows: ‘ J ackson was to cultivate certain of the prosecutor’s land, amounting to about 8 or 9 acres, for tbe year 1890, and pay bim as rental tbe sum of $33, or one 400-pound bale of cotton, with tbe understanding tbat Jackson was to work for tbe prosecutor, whenever be needed Jackson and be (Jackson) could leave bis own crop, at 50 cents a day.’ We think tbe relation of master and servant did not exist, for tbe reason tbat J ackson was not in tbe employment of tbe prosecutor. Tbe relation between them was tbat of landlord *264and tenant. One o£ tbe terms or stipulations of tbe renting was that, in addition to tbe rent paid, Jackson, whenever at leisure, if called upon by tbe landlord, should work for him at 50 cents a day. It has been held that where A. employs B. to labor for him for one year at $20 per month, and gives him tbe use of a dwelling during that term, B.’s occupancy of tbe dwelling is that of a servant, and not as a tenant, and if be quits A.’s service, or is discharged, A. may enter and forcibly eject him. Wood’s Master and Servant, sec. 153, and cases there cited. Tbe reason is that tbe contract is that of hiring, and tbe use of tbe bouse is a part of tbe hire, or an incident of tbe contract. E converso, here tbe contract is that of renting, and tbe promise by tbe tenant to do labor when at leisure, if it is wanted by tbe landlord, is a mere incident of tbe contract of renting. Tbe court below erred, therefore, in instructing tbe jury that 'the contract, as sworn to by tbe prosecutor, gave him the right to demand tbe services of Jackson every day if be chose to, and tbe man who took him away was guilty of violating tbe statute.’ ”

Tbe statute itself, Revisal, secs. 1993, 3365, 3366, seems to recognize tbe clear distinction between a tenant or cropper on tbe one side and a mere servant, employed to do certain work for hire, and remedies, both civil and. criminal, are provided to enforce tbe rights of tbe landowner against tbe defaulting tenant or cropper.

A case very much in point is Barron v. Collins, 49 Ga., 580, which was an action against tbe defendant for enticing one Charles Barron, a cropper, from the plaintiff’s service, and it was held that it not being a contract of service, tbe demurrer to tbe declaration was properly sustained.

We have never understood that, in law, either a tenant or a cropper is tbe servant of tbe landowner. So far as an indictment of this kind is concerned, there is no essential difference between a tenant and a cropper.

Tbe mere fact that tbe tenant pays rent and has an interest in tbe land, and a croppr only an interest in tbe crop which is grown upon tbe land, when the latter furnishes tbe labor, his own and that of others, and pays half tbe expense of making tbe crop, does not so differentiate tbe two cases as to make the cropper indictable when tbe tenant would not be. A tenant and cropper are more independent of tbe landowner than is a servant, and neither owes him tbe duty of allegiance or of rendering service, as growing out of their relation to him.

Tbe Attorney-General very frankly admitted that tbe prosecution could not be sustained. We may remark that Haskins v. Royster, 70 N. C., 601, was an action at common law for maliciously — that is, without lawful justification — inducing laborers to break their contract and quit tbe service of their employer, and stands upon a ground and is upheld for a reason altogether different from any that we can possibly apply to these facts. Tbe case, when properly considered, is really an authority for tbe position that defendants were not indictable in this case. Tbe dissenting *265opinion of Justice Reade draws tbe distinction very sharply and properly between a mere servant and a tenant or cropper, although we may not assent to his individual conclusion. Nor do we think the difference between the two relations which he defines so clearly does in any sense conflict with the decision of the majority.

The motion for judgment of nonsuit should have been granted, and there was error in refusing it. It will accordingly be entered in the court below and the prosecution dismissed.

Reversed.