Morgan v. State

Cooper, C. J.,

delivered the opinion of the court.

By § 585 of the Code of 1880, a privilege tax of ten dollars is levied on each livery, feed, or sale stable in towns of less than two thousand inhabitants. On such stables in towns of more than two and less than three thousand inhabitants the tax is fifteen dollars, and so by gradual increase proportionate to the number of the inhabitants the maximum of sixty dollars is reached in towns of over ten thousand population.

The appellant was indicted for keeping such stable without having first paid the tax in the town of Woodville, which, by the indictment, is averred to contain “ less than two thousand inhabitants.”

On the trial of the case the defendant proposed to prove the population of the town, but objection was made by the attorney for the State and the evidence was rejected by the court; no proof was made on the subject by the State and the appellant contends that the allegation of population was one of essential description, and because it was not proved as laid there is a fatal variance, for which the conviction must be annulled. The point presented is not free from difficulty, but we think the better construction of the indictment is to consider the allegation of population as anala-gous to allegations of value in indictments for larceny where the extent of the punishment is greater or less according to the value of the thing stolen. In such cases, though value may be said to be in some manner descriptive of the thing stolen, it is very generally held that the value as laid need not be proved where the conviction is for the lowest grade of the offense charged, but that it is sufficient to prove any value calling for the punishment indicated by the indictment. 1 Bishop on Crim. Prac. 488 ; Comm. v. McKenney, 9 Gray 114; Williams v. People, 24 N. Y. 405.

• We judicially know that there is a town in the county of Wilkinson named Woodville and that there is but one. Whatever may have been the population at the time of the offense charged, the appellant was guilty of a violation of the revenue law if he kept a stable of the character named in the indictment. The population is material only as a guide to the court in affixing the punishment, and since the defendant could not be benefited by proof of <a larger population, no harm has been done him by the refusal of the court to permit evidence to be given on that subject.

’ The appellant also contends that the evidence does not show that he kept either a livery, sale, or feed stable. The evidence is that he had a stable at which he exposed a sign, that he let stalls at ten cents per day to those desiring to have their use, and that a person renting a stall could either supply the food for the stock or the defendant would furnish it from his store, charging only its market value; that the stable was locked at night by the defendant and ■that no stock was permitted to be taken out until both the stall rent and the account for food furnished was paid. This we think was sufficient to show that the stable was a “ feed stable ” within the meaning of the statute. It is immaterial that food was not kept at the stable, or that it was not furnished unless ordered by the owner of the stock. In truth, the defendant supplied both the stabling and the food for all who applied, and this he could not do without obtaining the privilege license required by law.

The judgment is affirmed.