37 Ga. App. 334 | Ga. Ct. App. | 1927
The indictment in this case charged that Jack King, in the county of Crisp, “did then and there unlawfully and with force and arms, being then and there owner, proprietor, and in charge of Jack King’s Comedian Vaudeville Company, same being then and there a group, company, and troup of actors, actresses, and theatrical performers, give concerts, shows, and exhibitions, and charge an admission therefor, within the incorporate limits of the City of Cordele, Georgia, without first paying to the tax-collector of said 'county the special tax as required by law.” There were five other similar counts alleging different dates. The defendant demurred to the indictment, the demurrer was overruled, •and he excepted pendente lite. Upon his conviction he filed a motion for a new trial, which was overruled. In his bill of exceptions he assigns error on the exceptions pendente lite and on the judgment overruling his motion for a new trial.
The controlling issue in the case is whether or not the defendant should have been taxed under paragraph 45 of the tax act of 1923 (Ga. L. Ex. Sess. 1923, p. 32), which is as follows: “Upon all concerts, shows and exhibitions charging an admission, not otherwise herein taxed, in or near cities of less than 5000 inhabitants, $25.00; in or near cities of more than 5000 and not more than 20,000, $50.00; in or near cities of more than 20,000 and not more than 50,000, $75.00; in or near cities of more than 50,000, $100.00 for each day,” etc., or whether he should have been taxed under paragraph 91 of said act, which is as follows: “Upon each and every electric show or exhibition of moving pictures, or illustrated songs, except where given for educational purposed, and upon each place where vaudeville performances are given, whether with or without electric show or moving pictures, for each place of business in or near towns of less than 2000 inhabitants, $2.00 per month; in or near cities from 2000 to 5000 inhabitants, $2.00 per month; in or near cities from 5000 to 10,000 inhabitants, $7:00 per month,” etc. (Italics ours.) In the motion for a new trial it is alleged that the court erred in charging the jury in part as follows: “Now, there is another provision of this law which provides that before one shall enter upon the conduct of any of the businesses upon which these special licenses or specific licenses or occupation taxes are laid, before he shall enter upon the conduct of such business, or engage in such' occupation he must appear before the ordinary of the county in which he proposes to carry on such business or occupation, and with such ordinary register as one proposing to carry on such business. . . Any person failing to register with the ordinary, or having registered failing to pay the special tax as required by the Civil Code, shall be guilty of a misdemeanor, and on conviction shall be fined double the tax or imprisoned as prescribed in section 1065 of the Code of Georgia.” The mere fact that this is a correct proposition of law does not necessarily justify the charge. True, a charge not applicable to the issue involved, if not harmful, would not require a new trial; but the charge in question was erroneous and harmful to the accused because it was not adapted to the facts and issues pf the case,, because there wa&
The court erred also in charging as set forth in the 7th special ground of the motion, as follows: “You will observe that the tax regulation, according to population, is upon each and every electric show or exhibition, or moving pictures, or illustrated songs, except where given 'for educational purposes, and that tax is also upon each place where vaudeville performances are given, whether with or without electric shows or moving pictures, and it is for each place of business. Now the court is bound to construe that as meaning a tax that is levied upon a place of business, a place of business that is regarded or has the attributes of a permanent place, such as a building or perhaps a tent,' or any permanent place of business having the attributes of permanency, and that it is a tax to be levied upon persons conducting a place of business, irrespective of the performance -they may from time to time carry on, performances of either electric shows, or exhibition of moving pictures, or illustrated songs, or vaudeville performances.” This charge was error for the reason’ that it instructed the jury that this tax applied to “a place of business that is regarded or has the attributes of a permanent place.” This is not necessarily
Because of the erroneous charges referred to> and since there was no criminal intent shown (the undisputed evidence showing a willingness on the part of the defendant to pay the only special tax that could be legally imposed upon him), the court erred in overruling the motion for a new trial.
Judgment reversed.