Moore v. State , 16 Ala. 411 ( 1849 )

CHILTON, J.

This case comes before us upon points reserved as novel and difficult by the Criminal Court of Mobile. The counsel for the plaintiff in error insists that the Criminal Court has no jurisdiction of the matter of the indictment, and that as consent cannot confer jurisdiction, the point may be faised for the first lime in this court. However correct this may be, had the case been brought before us by writ of error, it is well settled we cannot go beyond the questions presented by the reference and consider other points not ém-b'ráeed by it in the absence of a writ of érror. The State v. Shelton, 3 Stew. Rep. 343; Holland v. The State, 3 Porter’s Rep. 292.

We briefly proceed the'h to consider the only point presented by the record; which is, whether a single act of selling spirituous liquor will constitute the offence charged in thé indictment. The charge is “ that the said Augustus Moore, being then and there a person engaged in the business of retailing spirituous liquors, to wit, in the county, &c. did then and there, retail spirituous liquors,to wit, rum, &c. in less quantities than one quart, without first procuring a license so to do, according to law,” &c. The act of 6th March 1848, entitled “ an act to provide for the assessment and collection of the taxes,” is, as its caption imports, a revenue act. The 98th section declares, “ that each and every person engaged in or about, or intending to engage in any of the following kinds of business or employment, within the limits of this State, shall, before he at-temps to engage in or transact any such kind of business or employment, procure from the Clerk of the County Court of the county in which he intends to do such business, or follow such employment, a license for the same, which shall be operative for one year. from the date thereof &c.” The act then proceeds to fix uponxthe price of license — that for retailing in the country, or in the villages, containing less than five, hundred inhabitants, being thirty dollars. The proof shows that the defendant beloW did not follow the business of retailing — his business was that of a butcher, and without being engaged in retailing as a business, or inténding so to engage, ■so far as the proof discloses, he had on one occasion sold five cents worth of ardent spirits. We think it is perfectly clear that this does not subject him to the penalty provided in the act above refered to, against a person who being engaged or about to engage in the business &c. retails, &e. The terms business and employment as here used are synonimous, signifying that which occupies the time, attention and labor of men for the purpose of a livelihood or profit Business, is here used in the sense of a calling for the purpose of a livelihood. The case does not require us to express an opinion, as to whether ihe party may not be indicted under the previous law, notwithstanding the revenue act, for a single act of retailing without license, and hence we give no intimation upon this point. For the error we have noticed, the the judgment of the Criminal Court must be reversed and the cause remanded.' As the case goes back, it may be proper to suggest in respect to the jurisdiction'of the Criminal Court, that the act in express terms gives jurisdiction to the Circuit. Court in respect to the penalties imposed by the 98th section, and that while other portions of the act give the Criminal Court of Mobile jurisdiction in respect to other penalties, this section does not. Does not this show that the Criminal Court was not onfitted inadvertently in this section of the statute ? The question is worthy of serious consideration. See Acts of ’47-8, p. 15 § 43-44, p. 32, § 98.