Eubanks v. State

17 Ala. 181

• Court: Supreme Court of Alabama
• Decided: January 15, 1850
• Status: Published

Opinion

DARGAN, C. J.

William B. Eubanks was indicted in the Circuit Court of Pickens for keeping a ten-pin alley. Both counts of the indictment simply charge that “he did keep a tenpin alley without a license.” The defendant moved to quash the indictment, but the court overruled the motion, and the jury having returned a verdict of guilty, the court rendered judgment against the defendant. It is now contended that the court erred in refusing to quash the indictment. The 98th section of the Revenue Act of 1848 provides that each and every person engaged in or about or intending to be engaged in the following business or employment within the limits of this State shall, before he attempts to engage in or transact any such kind of business or employment, procure from the clerk of the County Court in which he intends to do such business or follow such employment a license for the same, which shall be operative for one year from the date thereof, and in default of procuring such a license, the person or persons doing such business or following such employment shall be liable to pay treble the sum required for suqh license, to be recovered by indictment, See. The act then provides that fifty dollars shall be paid for a license to keep a billiard-table, fifty dollars for a pool-table, and twenty-five dollars for a ten-pin alley, &c. The general rule is, that when the statute creates a new offence, unknown to the common law, that it is sufficient to charge the offence in the language of the act. — The State v. Duncan, 9 Porter, 260; The State v. Click, 2 Ala. Rep. 26. But we think it very clear that when a statute creating an offence describes the constituents or ingredients of the crime, the indictment framed under it must allege all the constituents or ingredients necessary to the existence of the offence; otherwise it would not appear that the defendant was guilty of the crime with which he was charged. — The State v. Henderson, 1 Richardson, 179; 3 Gratt. 560. The design of the act was to tax those who might engage in any of the employments described in it, and the offence created consists in being engaged in any such business or employment without a license. — State v. Moore, 16 Ala. 411. The averment that “he did keep a ten-pin alley” is not equivalent to saying that he was engaged in the business or employment of keeping a ten-pin alley. One may keep a billiard-table or a ten-pin alley for the amusement of himself or his family, without being engaged in keeping them as a business, or avocation. The indictment should have shown that the defendant was engaged in the business or employment of keeping a ten-pin alley without a license. As it did not, it is defective, and should have been quashed. The judgment must therefore be reversed and the cause remanded.