Merritt v. State , 59 Ala. 46 ( 1877 )

STONE, J. —

Section 490 of the Code of 1876 declares, that, “ It shall not be lawful for any person, firm, company or corporation to engage in, or carry on any business or profession hereinafter mentioned, without first having paid for and taken out a license therefor.” Among the occupations thereinafter mentioned, and coming within the influence of' said section, is the following : “For each sewing machine company, selling sewing machines by themselves or agents, one hundred dollars, as a State tax.” — Code of 1876, § 494, stfbd. 17. To come within these two sections, it is manifest that the person charged must have engaged in the business of selling sewing machines, and that such person or persons were or was a person, firm, company or corporation, or some member or agent of such firm, company or corporation, engaged as such in, or carrying on the business of selling-sewing machines. In other words, the business must be engaged in, or carried on, and by some person, firm, company or corporation, or an agent of such; and the offence is not made out, unless there is a selling of sewing machines by the sewing machine company, or their agent. The indictment, to be sufficient, must charge that the offender or offenders did engage in or carry on the business of selling, and did sell sewing machines, without first having paid for, and taken out a license therefor, &e., and that at the time he (or they) engaged in, or carried on the business of selling, and did sell such sewing machines, he or they were members of the-said sewing machine company, (or were agents of the said sewing machine company, and selling as such agents, as the-facts may require). This ruling may exact great particularity, and much difficulty of proof; but such are the requirements of the statute. Only the persons composing sewing machine companies, and their agents, , engaging in, or carrying on the business, are embraced in the statute. The indictment is totally defective, and the verdict should have been set aside, and the judgment arrested. — Harris v. State, 50 Ala. 127, and authorities.

We deem it unnecessary to particularly notice the charges requested, further than to say that if the other ingredients of the offence were proved, it would not necessarily follow that a sale of “two or three sewing machines is not sufficient to warrant a conviction for engaging in or carrying on the business of selling sewing machines.” This is a question for the jury.

We have not considered the demurrer, because the ruling upon it is not shown in the judgment-entry.

Reversed and remanded.' Let the defendant remain in custody until discharged by due course of law.