159 So. 269 | Ala. Ct. App. | 1935
This appeal is from a judgment of conviction for a violation of the revenue law of the state. Appellant, a corporation doing business in this state by and through its agents and employees, was charged by indictment with engaging in and carrying on the business of displaying, offering for sale, on selling fruit in Union Springs, Ala., a city of less than 10,000 inhabitants, without having first obtained a license therefor.
The state insisted that the act complained of was in violation of schedule 76.(55), Revenue Code; Acts of Alabama 1919, pp. 282, 395, § 361, schedule 55, which reads as follows: "Fruit Stands. — For each fruit stand in cities or towns of over ten thousand inhabitants, ten dollars; in other places, five dollars."
The defendant moved to quash the indictment, said motion being as follows:
"Now comes the defendant, Hill Grocery Company, a corporation, and moves the Court to quash the indictment heretofore returned by the Grand Jury of Bullock County against the said Hill Grocery, a corporation, and which said indictment is made the basis of this prosecution, and as grounds of said motion, defendant sets down and assigns the following separate and several grounds, viz.:
"1. For that said indictment does not state sufficient facts so as to apprise this defendant of the nature of the offense charged against it. *304
"2. For that the allegations of said indictment do not state an offense against the State of Alabama.
"3. For that said indictment is vague, indefinite and uncertain.
"4. For that no offense is charged under the facts set up in said indictment.
"5. For that for ought that appears from the averments of said indictment the defendant was engaged in a lawful business.
"6. For that the averment in said indictment 'that Hill Grocery Company, a corporation, doing business in the State of Alabama, acting by and through its agents and employees engaged in or carried on the business of displaying, offering for sale or selling fruit in Union Springs, Alabama, a city of less than 10,000 inhabitants, without having first obtained a license therefor, and contrary to law against the peace and dignity of the State of Alabama,' charges the defendant with no offense under the laws of the State of Alabama.
"7. For that the business of displaying, offering for sale or selling fruit is not unlawful under the laws of the State of Alabama.
"8. For that the facts stated in said indictment charges this defendant with no offense under the laws of the State of Alabama.
"9. For that no license is required in Alabama as a condition precedent to the right to engage in or carry on the business of displaying, offering for sale or selling fruit in Union Springs, Alabama; wherefore, the doing of said acts without having first obtained a license therefor is not contrary to law, and constitutes no offense under the laws of the State of Alabama."
Defendant also interposed demurrers to the indictment on practically the same grounds. Both the motion to quash and the demurrers were overruled, and defendant duly excepted. The trial thereupon proceeded, and at its conclusion the court gave the general affirmative charge in favor of the state.
Each of the foregoing rulings by the trial court was error.
Manifestly and clearly the indictment charged no offense known to the law. Great Atlantic Pacific Co. v. State (Ala.App.)
The insufficiency of the indictment, as indicated, is not the only reason why a conviction in this case cannot be permitted to stand. The evidence discloses without dispute that appellant was engaged in doing a large general grocery store business in Union Springs, Ala., a city of less than 10,000 inhabitants, and kept fruit in small quantities as part of its general stock, an integral part thereof, and was duly licensed by the state of Alabama to conduct such grocery business. It is a matter of common knowledge, and, being such, this court is presumed to know that the operating of a general retail grocery business necessarily, from the very nature of such business, contemplates and entails the sale of fruit, and where a condition of this character exists, the general rule applies, that when a license to do a general business has been exacted and such license paid another license cannot be required and collected for the doing of a part of a particular act, or series of acts, constituting an integral part of such business. Mayor and Aldermen of City of Tuscaloosa v. Holczstein,
Other insistences of error are presented, but we see no reason to prolong this opinion, except to say in reference to an opinion of the Attorney General, which is referred to in briefs of counsel, what we said in this connection in the case of W. H. Holcombe v. Mobile County,
The judgment of conviction from which this appeal was taken is reversed, and, as no conviction can be had in this case, as shown by the record, a judgment is here rendered in behalf of appellant, who may go hence.
Reversed and rendered.