Elsberry v. State

Supreme Court of Alabama

Elsberry v. State

52 Ala. 8

CourtSupreme Court of Alabama

DecidedJanuary 15, 1875

StatusPublished

Cited by12 cases

This text of 52 Ala. 8 (Elsberry v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elsberry v. State, 52 Ala. 8 (Ala. 1875).

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Opinion

MANNING, J.

It is now insisted here, but the point was not brought to the attention of the court below, that no venue was proved. The answer to this is furnished by the opinion of this court in Huggins v. The State, 41 Ala. 393: “ There [10]*10was evidence in tbe court below reasonably conducing to prove the venue. We do not understand the decision in Frank v. The State (39 Ala. 670) as going to the extent of holding that this court will pass upon the sufficiency of the evidence of venue, when no question was raised in the court below. That decision pertains to a case when it affirmatively appeared that there was no proof tending to show venue, and to such cases its authority and reasoning must be confined.”

2. It is also insisted that the taking out afterwards of a license which relates back and covers the time within which the business was carried on without a license, and the acceptance by the licensing officer of the price of the license, operate to protect a party from punishment in such a case. Such a mode of condonation would probably tempt many a person to experiment in the chances of carrying on business without license, with a view to escape altogether the contribution he ought to make to the revenues of the State. In this cause there is no evidence whatever of such an intention. But the pardoning power in this State is not intrusted to revenue collectors.

3. It is contended, furthermore, that defendant is not the proper party to be prosecuted, but the corporation of which he was a stockholder and superintendent. There are a few cases in which indictments will lie against a corporation. But as such a body is “ invisible, intangible, and exists only in contemplation of law,” it is tbe natural persons in and by whom it lives, moves, and operates that the law generally holds responsible for its offences against the public.

This prosecution is under section 111 of the Eevenue Act of 1868, and the penalty to be enforced is a fine, and may be confinement in the county jail. To the latter it would be difficult to subject the artificial being called a corporation, however much the case might justify the imprisonment of some-body.

The judgment of the court below is affirmed.

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MANNING, J.

It is now insisted here, but the point was not brought to the attention of the court below, that no venue was proved. The answer to this is furnished by the opinion of this court in Huggins v. The State, 41 Ala. 393: “ There [10]*10was evidence in tbe court below reasonably conducing to prove the venue. We do not understand the decision in Frank v. The State (39 Ala. 670) as going to the extent of holding that this court will pass upon the sufficiency of the evidence of venue, when no question was raised in the court below. That decision pertains to a case when it affirmatively appeared that there was no proof tending to show venue, and to such cases its authority and reasoning must be confined.”

2. It is also insisted that the taking out afterwards of a license which relates back and covers the time within which the business was carried on without a license, and the acceptance by the licensing officer of the price of the license, operate to protect a party from punishment in such a case. Such a mode of condonation would probably tempt many a person to experiment in the chances of carrying on business without license, with a view to escape altogether the contribution he ought to make to the revenues of the State. In this cause there is no evidence whatever of such an intention. But the pardoning power in this State is not intrusted to revenue collectors.

3. It is contended, furthermore, that defendant is not the proper party to be prosecuted, but the corporation of which he was a stockholder and superintendent. There are a few cases in which indictments will lie against a corporation. But as such a body is “ invisible, intangible, and exists only in contemplation of law,” it is tbe natural persons in and by whom it lives, moves, and operates that the law generally holds responsible for its offences against the public.

This prosecution is under section 111 of the Eevenue Act of 1868, and the penalty to be enforced is a fine, and may be confinement in the county jail. To the latter it would be difficult to subject the artificial being called a corporation, however much the case might justify the imprisonment of some-body.

The judgment of the court below is affirmed.

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Bluebook (online)

52 Ala. 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elsberry-v-state-ala-1875.

Opinion

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