Merritt v. State

19 Tex. Ct. App. 435, 1885 Tex. Crim. App. LEXIS 215

Opinion

Willson, Judge.

To engage in or pursue the occupation of selling intoxicating liquors is taxable under the laws of this State (Gen’l Laws 17th Leg., p. 112), and it is an offense against the penal laws of this State to engage in or pursue such occupation without first paying the tax due thereon. (Penal Code, art. 110.) But a sale of such liquors without engaging in or pursuing the occupation of selling is not an act taxable by law, and it is not a violation of the penal law to make such a sale without first having obtained a license therefor.

It is the occupation and not the act of selling which is taxable. There may be one or more sales, and yet no occupation of selling, or there may be the occupation of selling without even a single sale. (Halfin v. The State, 18 Texas Ct. App., 410; Wells v. The State, id., 417; Mansfield v. The State, 17 Texas Ct. App., 468; Standford v. The State, 16 Texas Ct. App., 331; La Norris v. The State, 13 Texas Ct. App., 33.) There are certain enumerated acts taxed by law, such as exhibiting a theater, dramatic performance, circus, sleight of hand performance, etc., etc. These acts are made taxable whether engaged in as an occupation or not, and to commit them without first paying the tax is a penal offense. But, as before stated, a sale of intoxicating liquors is not per se an act taxable by law.

As the indictment in this case does not charge the defendant with engaging in or pursuing the occupation of selling intoxicating liquors without first obtaining license, but only charges him with selling such liquors without license, it fails to charge an offense against the law, and therefore the judgment is reversed and the prosecution is dismissed.

-Reversed and dismissed.

[Opinion delivered November 25, 1885.]