Williamson v. State , 16 Ala. 431 ( 1849 )

CHILTON, J.

The indictment charges the defendant with keeping an establishment in the county of Mobile, on the first day of June 1848, for the sale of confectionary, cakes, candies and fruits, without first procuring a license so to do according to law. The defendant was found guilty, and the court entered judgment that he be fined thirty dollars, that being three times the amount of the price of license required to be paid by persons engaged in that business.

Upon the trial, the defendant demurred to the indictment, because it did not disclose that there was an informer, insisting that as the statute gave one half of the penalty to the State, and the other to the informer, it must appear who the informer is. Acts of 1848,- p. 32, § 98.

The defendant also objected, upon the trial, to the examination of Seaborn Williams, who was marked upon the bill of indictment as a witness, and who was the only witness examined by the grand jury. This witness stated that he was not the informer, and was allowed to testify by the court. The defendant also offered in evidence a deed, dated in 1846, conveying the premises on which the establishment was located to one Brooks, in trust for the defendant’s wife, and proposed showing that she kept a similar establishment on the place from 1836 down to the present period, when the indictment was found, and managed it principally herself, the defendant having another occupation calling him from home in the day time, and only being occasionally at the shop, and that the wife was always there, in the absence of her said husband, managing the shop. The court excluded the conveyance, and instructed the jury that the fact that the married woman kept a shop with the privity and consent of the husband made him liable for the consequences of keeping the same. The defendant also objected that the State was not entitled to judgment for treble the price of license, since the statute gave one moiety thereof to the informer, which objection was overruled, and judgment entered for the entire sum., The several points having been refered by the Judge of the Criminal Court to this Court, as novel and difficult, we proceed to notice them in their order.

1. The clause of the statute under which the indictment was found, being a portion of the act to provide for the assessment and collection of taxes, declares that each and every person engaged in or about, or intending to engage in any of the following kinds of business or employments, within the limits of this State, shall, before he attempts 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 one year from the date thereof: And in default of procuring such license, the person or persons doing such business or following such employment shall be liable to pay treble the sum required to be paid for such license, to be recovered by indictment on three days' previous notice, by motion of the solicitor for the circuit in which the coimty is situated, before the Circuit Gowrt of the comity in ivhich the business or employment is alleged to have been followed — one half to the use of the informer, and the other half to the use of the State. The statute then provides that the license for keeping a confectionary or establishment for sale of confectionary, cakes, candies or fruits, shall be granted for ten dollars.

The statute, so far as it relates to the remedy, is somewhat unique and difficult of comprehension. It requires that the penalty shall be recovered by indictment, upon three days’ previous notice, by motion of the solicitor before the Circuit Court, &c., one half to the use of the informer, the other half to the State. It is insisted, that the statute contemplates an informer, and that his name must appear as such in connection with the indictment. We do not agree with the counsel, that the indictment was demurrable, because no informer’s name appears upon it. A just construction of the act would not allow the right of the State to punish those who seek to avoid her revenue laws, and to recover from them the penalty imposed, and which is a compensation for the loss of revenue consequent upon the failure of the defendant to obtain license, to depend upon the fact whether any one would become an informer in the sense contended for. Were such the law, a large portion of the public revenue might go uncollected, as it rarely happens that the small sum allowed to informers is sufficient to stimulate them to set on foot such prosecutions. The State receives the penalty, to-wit, treble the price of the license, one half to the use of the informer, if there be one, and if no informer claims the moiety, the State may retain the whole. Regarding the prosecution as a means of recovering the penalty, we see no reason why the doctrine applicable to qui tarn actions should not apply, in respect to which Judge Blackstone says: If the king commence the action, he shall have the whole forfeiture. 2 Bla. Com. 162—citing 2 Haw. Pl. Cr. 368. The defendant cannot complain that the State, instead of the informer, takes the other moiety. It is the same to him, as the penalty is not thereby incurred, and he is deprived of no right which he could assert, were the name of an informer endorsed upon the indictment. The demurrer was therefore properly overruled.

2. The witness, Williams, cannot be regarded as the informer, merely because he was sworn as a witness. He swears that he was not the informer, and was therefore properly allowed to testify, .as he was entitled to no portion of the recovery, and consequently had no interest in the prosecution.

3. It is shown that the husband and wife lived together on the premises where the establishment was carried on. It was a question wholly foreign from the matter in issue, whether the premises belonged to the husband, the wife, or a third person. The question in issue was, whether the defendant carried on the business of selling confectionary, cakes, candies, fruit, &c., without obtaining license; if he did, it was wholly unimportant whether it was upon his own or his wife’s land. So that we cannot conceive how he could have been prejudiced by the exclusion of the deed of conveyance, showing that the title to the premises, on which the establishment was situated, was in one Brooks in trust for the benefit of Mrs. "Williamson.

/4. There is rip error in the charge of the court, that if the (wife carried on the establishment with the privity and consent | of the husband, he was responsible for the consequences. If * she was acting with his privity and consent, she was acting I for him, as much as if he had employed any one else to superintend the sales, and he was entitled, by virtue, of his marital relation, to her earnings; he was also, as the proof informs us, at the shop occasionally, and although otherwise employed during the da3q returned home at night. Under such circumstances, we think no ease can be found which holds that the husband is not liable. Croft’s case, in Strange 1120, decides that the wife may be convicted of selling gin against the injunction of the 9th Geo. 2, c. 23; but she acted without the company or coercion of her husband, and was alone the offender. There can be no doubt of the husband’s liability, when the wife acts with his concurrence. 1 Russell, 17, et seq.; 10 Johns. Rep. 246.

There is no 'error in the judgment, and it is consequently affirmed.