Dentler v. State , 112 Ala. 70 ( 1895 )

HARALSON, J.

There was no error in overruling the demurrer to the indictment. The statute, section 3892 of the Code of 1886, makes it penal to engage in or carry, on a business, after the 15th of January in any year, for which a license is required. It was unnecessary to aver in the indictment, that the business,- alleged to have been carried on by defendant, was engaged in or carried on since the 15th of January of any year. If the offense was committed before that date, in a year the defendant had license to engage in the business, that was defensive matter to be pleaded and proved. The statute under which defendant was indicted was not a new one, creating the offense within twelve months before the indictment was found. If so, it would have been necessary, as was held in McIntyre v. The State, 55 Ala. 167, to allege that the offense had been committed after the date on which a license was first required. To the same effect is Bibb v. The State, 83 Ala. 84. In McIntyre’s Case it was intimated, that the decision was not to be regarded as constituting a rule for other cases variant from that. But, where the statute creating the offense is not -a new one within the limitation prescribed against the offense, but of previous and continuing force, time is not an ingredient of the offense, in the sense that it must be averred ; since the general rule is, that it is not necessary to make any averment that the indictable act was done within the time mentioned in the statute of limitations. It is obvious, that if the offense had been created by statute within the period of limitation for such misdemeanors, time would be an ingredient of the offense and necessary to be averred; otherwise, the reason of the requirement fails, and the general rule obtains. — McDowell v. The State, 61 Ala. 174; McGuire v. The State, 37 Ala. 162.

2. There is nothing in the point that the venue was not proved. There was no instruction going to the sufficiency of the evidence to convict. — Bowden, v. The State, 91 Ala. 61; Hubbard v. The State, 72 Ala. 164.

3. Nor was there any error, when the jury returned a verdict of a fine for an amount greater than allowed by law, for the the court to refuse to receive it; to send them back under instructions as to the amount of tlie fine in case of conviction, and afterwards, to receive their verdict when properly rendered, assessing the fine as prescribed by statute.

4. The witness Ragland testified he hadbought'cards from defendant twelve times or more, the last time on December 24, 1894. The defendant “objected to any evidence of the buying of playing cards prior to December 24, 1894, unless it was shown that such purchases were made within twelve months after the date the indictment was found.”. This objection was overruled. The objection as to the time of the sales, it will be seen, was “within twelve months after the date of the indictment.” The word “after” is probably a clerical error, the word “before” being the one intended to be employed. But, if thus read, the objection is untenable. Sales made before were admissible as tending to show the intent with which they and the ones complained of were done. If the defendant desired to show that such sales were too remote in the past, to shed any light on the recent dealings of defendant, with which he was charged, or that they were made when defendant was dealing under a license, if that was the case, the dates of the sales might have been called out on cross-examination. — Grant v. The State, 73 Ala. 14. The witness proceeded to state that he remembered distinctly one occasion, about a week or ten days before December 24,1894, when he bought three decks of playing cards from defendant, and he had bought them frequently in November and December, 1894, the indictment having been found the 27th February, 1895.

It has been held that the doing of a single act, pertaining to a particular business, will not of itself be considered as engaging in or carrying on the business ; yet a series of acts would be so considered. And as to a single act, it is said: “One act may be sufficient to constitute an ‘engaging in or carrying on the business, ’ according to the intent with which the act was done, and other proof in the case.” — Abel v. The State, 90 Ala. 633. In that case it was also held, that the clerk or agent of one unlawfully engaged in the business of a wholesale liquor dealer, may be convicted upon proof of the unlawful acts of selling by him, although such agent or clerk may not have any pecuniary interest in the business, other than as mere clerk or agent. — Verkins v. The State, 92 Ala. 66.

The two charges requested by the defendant, from what has been said, it will appear, were properly refused. From the- facts hypothesized, in the first, it can not be predicated, as is there done, that defendant was not a dealer in playing cards.

As to the second, it may be said, that it is abstract and calculated to mislead the jury. The proof on the part of defendant, was not as to one, but of several sales within twelve months before the indictment.

There is no error in the record, and the judgment and sentence of the lower court are affirmed.

Affirmed,