BRICKELL, J.
The objection urged to the indictment, that on its face it purports to have been found by “ the grand jury of said court,” instead of said county, cannot-be sustained. Onice v. State, at the present term. The caption of an indictment is that entry of record, showing when and where the court is held, who presided as judge, the venire, and who were summoned and sworn as grand jurors; and the caption is applicable to, or is a part of every indictment, and need not be inserted therein. Reeves v. State, 20 Ala. 33; Harrington v. State, 36 Ala. 236. If the caption, or any part thereof, is inserted in the indictment, it may be rejected as surplusage. Rose v. State, Minor, 28. An indictment commencing, “ The grand jurors for the State of Alabama, upon their oaths present,” &c., is sufficient, the name of the proper county appearing in the caption. Morgan v. State, 19 Ala. 556; Lawson v. State, 20 Ala. 65. In this case, the caption of the indictment shows the venire, and the general organization of the grand jury. The grand jury making the presentment thus appears to have been a grand jury empanelled to inquire and present for the county of Barbour ; and the allegation, “ for said court,” will be treated as mere surplusage. In this respect, the in[156] dictment is a departure from the form prescribed by the Code; and though it is not a material departure, and is cured by a reference to the caption, we do not wish to be understood as encouraging such departures. They often embarrass the administration of the criminal law, and unnecessarily protract prosecutions. It requires but little labor and attention for the prosecuting officer to observe the form prescribed by the Code, and in doing so there is safety.
2. The second charge given by the court of its own motion was erroneous. The defendant was charged with engaging in, or carrying on the business of a commission-merchant without license," in violation of the revenue law of 1868. To convict the defendant for a violation of this law, the State must have proved that he engaged in, or carried on, the business of a commission-merchant. A commission-merchant we understand to be one who receives goods, chattels, or merchandise, for sale or exchange. Possession of the thing to be sold or exchanged, and authority to sell or exchange, or otherwise dispose of it, for a compensation to be paid by the owner, or derived from the disposition, are essential to his character. The statute uses the terms “ commission-merchant, or broker.” The law merchant uses the terms, “ factor and broker; ” and “ commission-merchant,” as used in common parlance, answers to the legal term “ factor.” The business, duties, and responsibilities of each, are the same. The legal distinction between a factor and broker is, that the factor is intrusted with the property, the subject of the agency ; the broker is only employed to make a bargain in relation to it. 1 Parsons on Contracts, 78. The statute does not render it necessary for one who may gratuitously assume the duties of a commission-merchant, or who may, in one or more instances, incidentally discharge such duties, to obtain a license. It is only the person who intends to engage in the business of a commission-merchant as a source of profit, — to pursue that as a vocation, either alone, or in connection with some other employment, who is required to obtain license. This is apparent from the language used, and the purposes of the statute. The purpose was to derive revenue from the occupations or professions on which a tax is imposed, and a license required. The lawyer, physician, and dentist are each required to pay a tax, and obtain a license, as a prerequisite to the pursuit of their respective professions. It cannot be supposed that a lawyer, who had retired from practice, and who no longer pursued his profession as a source of profit, but who, in one or more instances, gratuitously advised, or for compensation rendered professional service, without any intention of returning to the practice, or engaging in it as a business or occupation, is required by this statute to pay a tax, and obtain a [157] license, to carry on a business in which he does not propose, and is unwilling to engage ; and so of the physician, or dentist, or any of the other professions or employments mentioned in the statute.
It may be competent for the legislature to prohibit the rendition of any service pertaining to any one of the professions, or the doing of any act belonging to any one of the pursuits or occupations mentioned in the statute, without a license and the payment of a tax. But it cannot be said they have done so, by imposing a tax, and requiring the license from those only who “ engage in or carry on the business ” of particular professions and occupations. Such is the construction. heretofore given this statute by this court. In the case of Carter v. State (44 Ala. 29), the defendant was indicted for selling tobacco without license. The statute requires a license for “ dealers in tobacco.” The evidence was, that the business of the defendant was that of a general dry goods merchant, and that he kept tobacco for sale only in small quantities, retailing it by the plug. This court declared that he was not a “ dealer in tobacco ” in the sense of the statute ; that if he was not selling or trading in tobacco, under cover of his other business, with a view of defrauding the revenue, he could not be convicted. In the case of Johnson v. State (44 Ala. 414), the defendant was indicted for a violation of the revenue law of 1868, in engaging in or carrying on the business of a distiller without license. On the trial, he asked the court to charge the jury, that he could not be convicted, unless the evidence showed he engaged in or carried on the business of a distiller, and that distilling in one, two, or three instances, was not engaging in or carrying on the business of a distiller. These charges were refused, and the refusal was by this court declared erroneous ; and it was said they expressed the law of the case. In accordance with these decisions are previous decisions, on statutes similar in terms. Pettibone v. State, 19 Ala. 586; Moore v. State, 16 Ala. 411; Allaire v. State, 14 Ala. 435.
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BRICKELL, J.
The objection urged to the indictment, that on its face it purports to have been found by “ the grand jury of said court,” instead of said county, cannot-be sustained. Onice v. State, at the present term. The caption of an indictment is that entry of record, showing when and where the court is held, who presided as judge, the venire, and who were summoned and sworn as grand jurors; and the caption is applicable to, or is a part of every indictment, and need not be inserted therein. Reeves v. State, 20 Ala. 33; Harrington v. State, 36 Ala. 236. If the caption, or any part thereof, is inserted in the indictment, it may be rejected as surplusage. Rose v. State, Minor, 28. An indictment commencing, “ The grand jurors for the State of Alabama, upon their oaths present,” &c., is sufficient, the name of the proper county appearing in the caption. Morgan v. State, 19 Ala. 556; Lawson v. State, 20 Ala. 65. In this case, the caption of the indictment shows the venire, and the general organization of the grand jury. The grand jury making the presentment thus appears to have been a grand jury empanelled to inquire and present for the county of Barbour ; and the allegation, “ for said court,” will be treated as mere surplusage. In this respect, the in[156] dictment is a departure from the form prescribed by the Code; and though it is not a material departure, and is cured by a reference to the caption, we do not wish to be understood as encouraging such departures. They often embarrass the administration of the criminal law, and unnecessarily protract prosecutions. It requires but little labor and attention for the prosecuting officer to observe the form prescribed by the Code, and in doing so there is safety.
2. The second charge given by the court of its own motion was erroneous. The defendant was charged with engaging in, or carrying on the business of a commission-merchant without license," in violation of the revenue law of 1868. To convict the defendant for a violation of this law, the State must have proved that he engaged in, or carried on, the business of a commission-merchant. A commission-merchant we understand to be one who receives goods, chattels, or merchandise, for sale or exchange. Possession of the thing to be sold or exchanged, and authority to sell or exchange, or otherwise dispose of it, for a compensation to be paid by the owner, or derived from the disposition, are essential to his character. The statute uses the terms “ commission-merchant, or broker.” The law merchant uses the terms, “ factor and broker; ” and “ commission-merchant,” as used in common parlance, answers to the legal term “ factor.” The business, duties, and responsibilities of each, are the same. The legal distinction between a factor and broker is, that the factor is intrusted with the property, the subject of the agency ; the broker is only employed to make a bargain in relation to it. 1 Parsons on Contracts, 78. The statute does not render it necessary for one who may gratuitously assume the duties of a commission-merchant, or who may, in one or more instances, incidentally discharge such duties, to obtain a license. It is only the person who intends to engage in the business of a commission-merchant as a source of profit, — to pursue that as a vocation, either alone, or in connection with some other employment, who is required to obtain license. This is apparent from the language used, and the purposes of the statute. The purpose was to derive revenue from the occupations or professions on which a tax is imposed, and a license required. The lawyer, physician, and dentist are each required to pay a tax, and obtain a license, as a prerequisite to the pursuit of their respective professions. It cannot be supposed that a lawyer, who had retired from practice, and who no longer pursued his profession as a source of profit, but who, in one or more instances, gratuitously advised, or for compensation rendered professional service, without any intention of returning to the practice, or engaging in it as a business or occupation, is required by this statute to pay a tax, and obtain a [157] license, to carry on a business in which he does not propose, and is unwilling to engage ; and so of the physician, or dentist, or any of the other professions or employments mentioned in the statute.
It may be competent for the legislature to prohibit the rendition of any service pertaining to any one of the professions, or the doing of any act belonging to any one of the pursuits or occupations mentioned in the statute, without a license and the payment of a tax. But it cannot be said they have done so, by imposing a tax, and requiring the license from those only who “ engage in or carry on the business ” of particular professions and occupations. Such is the construction. heretofore given this statute by this court. In the case of Carter v. State (44 Ala. 29), the defendant was indicted for selling tobacco without license. The statute requires a license for “ dealers in tobacco.” The evidence was, that the business of the defendant was that of a general dry goods merchant, and that he kept tobacco for sale only in small quantities, retailing it by the plug. This court declared that he was not a “ dealer in tobacco ” in the sense of the statute ; that if he was not selling or trading in tobacco, under cover of his other business, with a view of defrauding the revenue, he could not be convicted. In the case of Johnson v. State (44 Ala. 414), the defendant was indicted for a violation of the revenue law of 1868, in engaging in or carrying on the business of a distiller without license. On the trial, he asked the court to charge the jury, that he could not be convicted, unless the evidence showed he engaged in or carried on the business of a distiller, and that distilling in one, two, or three instances, was not engaging in or carrying on the business of a distiller. These charges were refused, and the refusal was by this court declared erroneous ; and it was said they expressed the law of the case. In accordance with these decisions are previous decisions, on statutes similar in terms. Pettibone v. State, 19 Ala. 586; Moore v. State, 16 Ala. 411; Allaire v. State, 14 Ala. 435.
The second charge given by the court of its own motion was, “ if the jury believed, from the evidence, that the defendant shipped cotton for different parties, or for about ten or twelve different persons, to a firm in Boston, and that he received a return commission on the cotton so shipped, he was guilty.” This charge was, as we have said, erroneous. Every fact stated in it may be true, and the defendant would not be a commission-merchant; he would be only a shipping and forwarding agent. He had no authority to sell, exchange, or otherwise dispose of the cotton. His only duty was the shipment of the cotton,'for a return commission, which, under the facts of this case, was a rebate by the Boston firm, in his favor, [158] of a part of tbe commission charged by them. It is also erroneous, in not referring to the jury the question whether the facts stated proved an intention on the part of the defendant to engage in or carry on the business of a commission-merchant. Without this intention, he could not be guilty. The law does not deduce such intent from the facts stated in this charge. The intent is matter of fact, to be ascertained by the jury from the evidence. The facts stated in the charge are proper evidence for tbe jury in ascertaining the intent; but, in assuming and declaring that, as matter of law, they established the guilt of the appellant, the court erred. It also follows from what we have said, that the court erred in refusing several of the charges asked by the defendant, which assert the law as we have stated it.
3. The charge given by the court on the motion of the solicitor, that, “if the jury believed the evidence, they must find the defendant guilty,” is erroneous. In civil cases, such a charge can be given only when there is no conflict in the evidence, and the jury cannot legally find a verdict for the party against whom it is given. 1 Brick. Dig. 335, § 3. It cannot be given, when any material fact is to be inferred from the evidence, and is not a legal presumption from it. Ib. The evidence in this case is not of such conclusive character as to have compelled the court, if it had been a civil suit, to have set aside a verdict for the defendant, and granted a new trial, because the verdict was without evidence to support it. And besides, the intention of the defendant was the material inquiry. This intention was, as we have said, to be inferred or not by the jury from the facts proved. By this charge, the court assumed to draw the inference for them, and invaded their province. Such a charge is always of doubtful propriety in a criminal case, and certainly should never be given, unless the evidence is conclusive in its character, and there is no fact to be drawn as matter of inference from the facts proved.
4. There are other matters insisted on as error, which will not probably arise on another trial; and as the judgment must be reversed, we do not deem it necessary to consider them. There is, however, one matter apparent on the record, we cannot pass unnoticed. The jury having been charged, retired to consider of their verdict; after several hours, the jury not having returned, without solicitation from them, and in the absence of the defendant and his counsel, the presiding judge directed them to be brought into court, and inquired why they did not find a verdict. On being informed by one of the jurors that they disagreed, he said to them, that he would keep the court open until they did agree; that they had nothing to do but to find the defendant guilty; and that under the charge of the [159] court, they were bound to find the defendant guilty, or they would be guilty of moral perjury. This was a most unprecedented and unwarranted interference with the deliberations and province of the jury, and of itself would have vitiated any verdict of guilty, and judgment of conviction following it.
For the errors pointed out, the judgment is reversed, and the cause remanded. The defendant will remain in custody until discharged by due course of law.