May v. State , 9 Ala. 167 ( 1846 )

ORMOND, J.

The statute under which this indictment is framed, declares, “ that in case any hawker, or pedlar, shall barter, exchange, or sell, either absolutely, or for a limited time, any clock, or clocks, or other goods, wares and merchandize, of any kind whatsoever, without first taking out a license agreeably to the first section of this act, from the clerk of the County Comt of the proper county, he shall forfeit and pay, for every article he shall sell, the sum of two hundred dollars,” &c.

This indictment is defective in not alledging that the goods were sold without first taking out a license.

It is an established principle of criminal pleading, that if there be an exception contained in the same clause of the act, which creates the offence, the indictment must show negatively, that the defendant does not come within the exception. [Archbold’s C. P. 53.] Such is the case here. It is not pedling which the law prohibits, but pedling without first obtaining a license. The indictment does not, upon its face, charge an offence against the law, and the judgment rendered upon it must be reversed.