Keller v. State , 123 Ala. 94 ( 1898 )

DOWDELL, J.

The defendant was tried and convicted for a violation of the revenue law — engaging in and carrying on the business of peddling -without a license. A violation of the revenue law is by statute made a misdemeanor. — Code, 1896, § 5467.

The prosecution in this case was begun on affidavit and Avarrant before the judge of the county court. The offense as described in the affidavit Avas sufficiently designated under the provisions of the statute. — Code, 1896, § 4600.

The defendant having been convicted, in.the county court appealed to the circuit court, Avhere a complaint AAras filed by the solicitor under the requirements of and in compliance with section 4627. There was no objection to this complaint, but the defendant moved to strike the same as being a departure, because, as stated by the defendant, no offense was charged in the affidavit before the county court. This motion was overruled by the court, and of the correctness of the ruling we have no doubt.

While a single act in itself, with nothing more, will not constitute the offense of engaging in and carrying on the business, prohibited by the statute, and for which a license is required to be first taken out, yet if it be coupled with the intent to continue in such acts, the offense is complete.

In carrying on the business of peddling for which a license is required under the revenue law, it is immaterial that the articles or goods being peddled are or are not the property of the defendant. The facts show that one Goodman was travelling through the State from Birmingham to the State of Tennessee, and was engaged in the business of peddling to pay his expenses and make money, not having first obtained a license as required by. law, and that the defendant accompanied him carrying his valises,, assisting him in making sales, and receiving therefor payment of his, defendant’s, expenses. Under these facts the defendant was guilty as charged.' The case clearly falls within the influence of the decisions in Abel v. State, 90 Ala. 631, and Segars v. State, 88 Ala. 144.

That portion of the oral charge of the court excepted to by the defendant was in accord with the views above expressed, and is free from error.

Written charge No. 1 requested by the defendant is the general affirmative charge, instructing the jury upon the whole evidence to acquit the defendant. Upon the law as above stated, and under the evidence introduced on the trial the court properly refused this charge. Written charge No. 3 requested the court to instruct, the jury that the defendant must have engaged in the business “for a livelihood and a profit” without a license, before he would be guilty of a violation of the law. This was an incorrect statement of the law. If he engaged in the business without a license, for a livelihood or for profit lie would have been guilty. Tliis charge was, therefore, properly refused. The remaining written charges requested by the defendant were opposed to the principles we have hereinabove expressed as to Avhat is necessary to constitute the offense of engaging in and carrying on the business for which a license is required under the revenue law, and the court committed no error in refusing the same.

The record presents no error, and the judgment must be affirmed.