¶1The defendant in this case was tried by the court without a jury, and found guilty of the offense of willfully failing or refusing to- work the public road after legal notice, as charged in the indictment.
¶2The court erred in sustaining the objection to the question by the defendant to- the witness Otts, and in refusing to allow proof by said witness of the facts proposed. If the defendant was a resident of an incorporated town, where he was paying his street tax, and only temporarily in the country -for.the purpose of working out his fine or indebtedness, with the intention of then returning and continuing his residence in said town, he was not liable to road duty at the place of his temporary -sojourn.— Spann v. State, 14 Ala. 588. The facts sought to- be provecí were proper to be considered in order to determine whether or not he was simply a sojourner.
¶3The motion to discharge the defendant should have been granted. The payment of street tax in an incorporated town or city is a substitute for the performance of road duty, and it is not the intention of the law that a man shall be liable to both for the same period. The evidence is uncontroverted that the defendant had paid his •street tax in and for the year, which did not end .mtil *133March 1, 1906, and he was warned on February 1, 1906, to work the road on February 5, 1906. He could not be made liable for road duty until March 1, 1906.
¶4As the defendant is entitled to be discharged, it is not necessary to pass on the demurrer to the indictment.
¶5The judgment of the court is reversed, and a judgment will be here rendered discharging the defendant.