Huffman v. State

Court of Criminal Appeals of Texas

Huffman v. State

115 S.W. 578, 55 Tex. Crim. 144, 1909 Tex. Crim. App. LEXIS 2

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 20, 1909

DocketNo. 4371.

StatusPublished

Cited by1 cases

This text of 115 S.W. 578 (Huffman v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Huffman v. State, 115 S.W. 578, 55 Tex. Crim. 144, 1909 Tex. Crim. App. LEXIS 2 (Tex. 1909).

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Opinion

RAMSEY, Judge.

This judgment must be reversed and dismissed for the reason that the affidavit and information fail to negative one of the exceptions in the enacting clause in the law under which appellant is charged. Subdivision 3 of article 5049 of the Bevised Civil Statutes, is as follows: "Peddlers of Patent Medicines: From every traveling person selling patent, or other medicines, one hundred [one hundred and seventy-five] dollars, and no traveling person shall so sell until said tax is paid; provided, that this tax shall not apply to commercial travelers, drummers, or salesmen making sales, or soliciting trade for merchants engaged in the selling of drugs, or medicines by the wholesale.” In the affidavit and information it is averred “He, the said J. L. Huffman, not then and there being a commercial traveler, drummer, or salesman soliciting trade for merchants selling drugs or medicines by the wholesale.” It omits the words, “or salesmen making sales.” This precise question was decided in the case of Needham v. State, 51 Texas Crim. Rep., 248. See Rev. Stat., art. 5049, sub. 3; Rice v. State, 37 Texas Crim. Rep., 36; Williamson v. State, 55 S. W. Rep., 568-570; Potts v. State, 45 Texas Crim. Rep., 45; 74 S. W. Rep., 31. This, it may be stated, is the rule of common law from a very early period and is supported by an unbroken line of decisions in this State.

2. Counsel for appellant in the argument urged us to decide the question as to whether or not the law is constitutional. On motion for rehearing in Needham v. State, supra, Judge Henderson, speaking for the court, held that this law is constitutional, and that it did not exempt either of the classes named from the tax if they sell at retail, although they represent a wholesale house. Judge Davidson, however, took a different view of the question as will be noted by his dissenting opinion appearing in the official report of the case. It occurs to us that the reasoning of Judge Henderson is *146 sound and gives the proper interpretation and construction of the statute. We deem it unnecessary to elaborate this view or to do more than to affirm the decision in the Needham case.

For the reason that the affidavit and information charge no offense against the law, the judgment of conviction is set aside, and the prosecution dismissed.

Reversed and dismissed.

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RAMSEY, Judge.

This judgment must be reversed and dismissed for the reason that the affidavit and information fail to negative one of the exceptions in the enacting clause in the law under which appellant is charged. Subdivision 3 of article 5049 of the Bevised Civil Statutes, is as follows: "Peddlers of Patent Medicines: From every traveling person selling patent, or other medicines, one hundred [one hundred and seventy-five] dollars, and no traveling person shall so sell until said tax is paid; provided, that this tax shall not apply to commercial travelers, drummers, or salesmen making sales, or soliciting trade for merchants engaged in the selling of drugs, or medicines by the wholesale.” In the affidavit and information it is averred “He, the said J. L. Huffman, not then and there being a commercial traveler, drummer, or salesman soliciting trade for merchants selling drugs or medicines by the wholesale.” It omits the words, “or salesmen making sales.” This precise question was decided in the case of Needham v. State, 51 Texas Crim. Rep., 248. See Rev. Stat., art. 5049, sub. 3; Rice v. State, 37 Texas Crim. Rep., 36; Williamson v. State, 55 S. W. Rep., 568-570; Potts v. State, 45 Texas Crim. Rep., 45; 74 S. W. Rep., 31. This, it may be stated, is the rule of common law from a very early period and is supported by an unbroken line of decisions in this State.

2. Counsel for appellant in the argument urged us to decide the question as to whether or not the law is constitutional. On motion for rehearing in Needham v. State, supra, Judge Henderson, speaking for the court, held that this law is constitutional, and that it did not exempt either of the classes named from the tax if they sell at retail, although they represent a wholesale house. Judge Davidson, however, took a different view of the question as will be noted by his dissenting opinion appearing in the official report of the case. It occurs to us that the reasoning of Judge Henderson is *146 sound and gives the proper interpretation and construction of the statute. We deem it unnecessary to elaborate this view or to do more than to affirm the decision in the Needham case.

For the reason that the affidavit and information charge no offense against the law, the judgment of conviction is set aside, and the prosecution dismissed.

Reversed and dismissed.

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115 S.W. 578, 55 Tex. Crim. 144, 1909 Tex. Crim. App. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huffman-v-state-texcrimapp-1909.

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