¶1The original affidavit or complaint d.id no more than to attempt to designate the offense by name, etc., which is entirely permissible in prosecutions for misdemeanors. — Gen. Acts 1.903, p. 283. Whether it sufficientilv did so to withstand an attack is not presented by the record, since, before the demurrer interposed to it was passd upon by the court, an amandatory affidavit was filed which, sufficiently charged the offense in detail. This amendment seems to have been objected to, but no exception to its allowance is shown by the bill of exceptions. But, if the exception had been properly presented for review, it would be of no avail, for the reason that the original *73affidavit or complaint was amendable in tlie manner shown to have been done.—Simpson v. State, 111 Ala. 6, 20 South. 572; Wright v. State, 136 Ala. 139, 34 South. 233; Holland v. State, 139 Ala. 120, 35 South. 1009.
¶2To the amended complaint a demurrer was interposed, which seems to challenge, not the sufficiency of the allegations, but the correctness of its allowance. Without conceding the correctness of this method of raising the question vel non of' the propriety of permitting the amendatory affidavit to be filed, wfe feel no' hesitancy in holding that the demurrer was properly overruled. The grounds of demurrer assigned proceed upon the theory that the amendatoiy affidavit or complaint was the institution of a new prosecution; and this seems to be based upon the idea that the original complaint or affidavit charged either no offense whatever, or a different one from that charged in the amendatory affidavit. Neither of these theories is tenable; for clearly, if the original complaint or affidavit failed to charge an offense, this defect needed to be cured, and it was the office of the amendment to remedy it .
¶3As to the point that a different offense was charged in the amendatory affidavit, this is not shown to be a fact, as will be readily seen by a comparison of the original and amendatory complaints. The written con-' tract introduced in evidence by the state was properly admitted. Its execution by defendant, who signed his mark, was proven by the subscribing witness who wrote his name as an attesting witness.—Houston v. State, 114 Ala. 15, 21 South. 813; Chastain v. Porter, 130 Ala. 410, 30 South. 492. Nor Avas it subject to the objection of being void on account of indefiniteness as to. the time and kind of labor to be pei formed by defendant.
¶4The statement made by defendant, testified to by each of the witnesses, Ratcliff and Stevenson, involving, as they did. a declaration or confession tending to incriminate him, were not shoAvn, either directly or circumstantially, to have been voluntary. They Avere prima facie inadmissible, and the objection interposed to their introduction should have been sustained.
¶5*74The oral charge of the court in this language, to which an exception was taken, “The state has proven everything beyond a reasonable doubt except the intent,” and, further, “A failure to perform is the same as a refusal to perform,” was clearly erroneous, as invading the province of the jury and as charging upon the effect of the evidence: — Section 3326 of the Code of 1896, and cases cited under it.
¶6Reversed and remanded.