¶1At common law, a joint owner, or tenant in common of personal property can not be guilty of larceny, by taking or appropriating to his own use the whole or any part of the joint property, 'however fraudulent or felonious in fact may he his intent, unless he take it from the custody of a bailee, with intent to charge the latter with a pecuniary liability. — Kirksey v. Fike, 29 Ala. 206; 2 Bish. Cr. Law, § 792; Clark’s Man. Cr. Law, § 955.
¶2The defendant, under the contract made between himself and McMakin, was a tenant in common of the crops jointly raised by them. The agreement to farm on shares ana divide the crops constituted this relation, notwithstanding the fact that McMakin was to furnish the land and teams, and the defendant, Holcombe, only the labor. This was the conclusion reached by us in Collier & Son v Faulk & Martin, ante, 58. Ye then held that the effect of sections 3474 and 3475 of the Code-was not to totally abrogate or abolish the relation of tenants in common in the cases coining within their influence, but only to modify it so as to give to each tenant in common a lien on the-share of the other in the crops jointly raised, with the remedy of enforcing it by attachment. “ For this purpose and to this-extent,” as we said in the above case, “ the relation of landlord and tenant, with all its incidents and rights in the one case, and the contract of hire, with the relation of employer and employee in the other, are declared respectively to exist. When this protection is secured, the function of the statute is fulfilled,, and the legislative purpose accomplished. The rights and rela*220Rons of the contracting parties must be construed to remain as fixed by themselves, and are not intended to be abrogated or destroyed to any greater extent than is required to carry out the legislative intent.”
¶3The court erred in refusing to give the charge requested by fhe defendant, viz: that -the jury should acquit him of the offense of larceny, for which he stood indicted, if they believed •the evidence.
¶4It is true that one tenant in common who fraudulently converts to his own use the undivided interest of his co-tenant, is punishable as if he had stolen it, under the provisions of section 4355 of the Code, but the indictment in the present case is not framed under that section.
¶5The judgment of the Circuit Court is reversed and the cause remanded. In the meanwhile let the defendant be retained in custody until discharged by due course of law.