Harris v. State

50 Ala. 127

• Court: Supreme Court of Alabama
• Decided: January 15, 1874
• Status: Published

Opinion

BRICKELL, J.

The 105th section of the revenue law of 1868 declares it unlawful for any person to engage in or carry on any business or profession, for which a license is required by that law, without first obtaining and paying for such license; and section 111 declares it a misdemeanor, punishable by fine to three times the amount required to be paid for a license, to engage in or carry on any business, for which a license is required, without first obtaining it; while the fourth subdivision of section 112 declares, that any person selling or disposing of spirituous, vinous, or malt liquors, in any quantity less than a quart, is a retail dealer. This last section also fixes the amount -to be paid for a license for carrying on the business of a retailer, varying the price according to the place at which the business is pursued. Pamphlet Acts 1868, pp. 330-31, §§ 105, 111, 112.

The offence charged against the defendant is purely statutory, and its constituents are all described in the statute creating it. The established rule of criminal pleading is, that when a statute creates an offence, and describes its ingredients, an indictment under it must conform to the description thus given. Eubanks v. State, 17 Ala. 181; Pettibone v. State, 19 ; Skains & Lewis v. State, 21 Ala. 218. Subjected to this rule, the indictment against the defendant is fatally defective. The place of the retailmg is a material ingredient of the offence charged against him. The penalty he must pay, on conviction, varies according to the character of the place. It is not assessed by the jury, nor has the court any discretion in its imposition. The statute imperatively prescribes it. If the retailing was on a steamboat, or other watercraft, the amount of the license is one hundred and seventy-five dollars; if in an incorporated city, town, or village, of more than one thousand, and less than five thousand inhabitants, the amount of the license is seventy-five dollars; if of more than five thousand inhabitants, two hundred dollars; and if in the country, fifty dollars. On a general verdict of guilty under this indictment, what fine will be imposed by the court ? It must vary according to the place of the retailing ; and that is a fact not averred in the indictment, and, of consequence, not embraced in the finding of the jury. Or suppose the defendant pleads “ guilty in manner and form as charged in the indictment,” what judgment shall the court render ? In either case, if this indictment could be sustained, the court could render judgment for the highest, or lowest, or any one of the fines imposed by the statute, and no revising court could say there was error. Nor can this defect in the indictment be cured by any finding of the jury. Their finding must respond to the allegations of the indictment, and the finding of any fact not embraced in these would be mere surplusage, which the court could not regard.

The case of Hirschfelder v. State (18 Ala. 112) is decisive of the question presented. The statutes of this State, though simplifying the rules of the common law as to criminal pleading, have not dispensed with the degree of certainty as to the description of the offence which the common law required. Certainty to a common intent is still necessary. The facts constituting the offence must be stated, in concise and ordinary language, in such a manner that a person of common understanding will know what was intended, and the court on conviction will be enabled to pronounce the proper judgment. Rev. Code, §4112. A general form of indictment, like that here presented, would not with any degree of certainty inform the accused what was intended. The only information it affords him is, that he is accused generally of carrying on the business of retailing without license. Where the retailing was, whether on board a watercraft, or in a town, or in the country, he must spell out, not from the indictment, but from his own knowledge of the business in which he has been engaged. The court, on conviction, is left to grope in the dark — to guess what fine shall be imposed, and what judgment rendered. The court erred in overruling the motion in arrest of judgment.

2. The language of the indictment, in this respect pursuing the words of the statute, is, “ did engage in or carry on the business of retailing spirituous, or vinous, or malt liquors,” &c. The words, “ engage in or carry on business,” have been of frequent use in the revenue laws of this State ; and when found in the connection in which they are found in the statute of 1868, have been uniformly construed as signifying “ that which occupies the time, attention, and labor of men for the purpose of a livelihood or profit.” Moore v. State, 16 Ala. 411; Eubanks v. State, 17 Ala. 181; Carter v. State, 44 Ala. 29; Bryant v. State, 46 Ala. 302; Espy v. State, 47 Ala. 533. It is the business, the occupation, or profession, on which the law imposes the tax, and from which it has power to derive a revenue. Has that business been engaged in and pursued by the defendant for a profit, or as a means of livelihood ? If it has, he should have obtained a license to pursue it, and, failing to do so, is a violator of the law. It is not necessary that it should be the sole or exclusive business or occupation. It may be pursued while pursuing another business, or in connection with another ; and, in either case, the party would be punishable. It is true, the doing of a single act, pertaining to a particular business, will not be considered engaging in or carrying on the business ; yet a series of such acts would be so considered. The true inquiry is, and one which a jury will seldom fail correctly to solve, what was the intent of the party ? Was it to derive a profit, or the means of livelihood, from retailing, or from any of the other occupations mentioned in the statute ? If it was, he is guilty; if it was not, he should not be convicted. An observance of this rule will enable the court, on another trial, to properly instruct the jury. Some of the charges given and requested are offensive to it; but it is not necessary to notice them in detail.

The judgment is reversed, and the cause remanded. The defendant will remain in custody, until discharged by due course of law.