Lichtenstein v. State

34 Ga. App. 138 | Ga. Ct. App. | 1925

Bloodworth, J.

The defendant and Mrs. E. Lichtenstein and A. Lichtenstein were indicted for a violation of the act approved August 15, 1923, and the act amendatory thereof approved August 16, 1924, in that they “did sell at .retail one carton Chesterfield cigarettes without having attached to said carton and to the package contained therein the revenue stamp as provided by” the aforesaid acts, the payment of which tax “is required by law to be evidenced by the attachment to the carton, package and other containers the stamps herein referred to.” The indictment alleges also that “Mrs. E. Lichtenstein and A. Lichtenstein are the owners and proprietors' of the business doing business under the firm name of E. Lichtenstein & Company, and Bennie Lichtenstein being employed as clerk for said firm, and having actually made the sale.” A. Lichtenstein was convicted, a motion for a new trial was overruled, and he excepted.

Section 1 (a) of the act approved Aug. 15, 1923 (Ga. L. 1923, p. 39), is as follows: “There shall be levied upon and collected from each person, firm or corporation, engaged in selling cigarettes and cigars at retail, a tax of ten per centum of the sales price at retail of each package of cigarettes and each cigar sold by such dealer.” It will be noted that this section imposes a tax upon “each person, firm or corporation engaged in selling cigarettes and cigars at retail.” The act approved August 16, 1924 (Ga. L. 1924, p. 26, see. 1), defines a dealer at retail “to be any person, firm or corporation engaged in the business of selling such articles directly to the consumer or for any other purpose than that of resale irrespective of the quantity that may be sold.” Before .a person can be legally convicted under the indictment charging the violation of these statutes two things must be shown: (1) that the accused was engaged in the business of selling cigarettes and cigars “directly to the consumer or for any other purpose than that of resale;” (2) that he has not paid the tax as required by the act of 1923 and complied with section 1-b of said act as to the stamps named therein. The accused insists that he was not engaged in the business of selling at retail. The evidence reveals a single sale only, and it is really not necessary to look beyond the charge of the court to determine whether or not a single sale would be engaging in the business of selling at retail. The court charged the jury that “the doing of a single act pertaining to a particular business will not be considered engaging in or carrying on the business; yet a series of such acts would be so considered.” This court in Williams v. City of Tifton, 3 Ga. App. 445 (2) (60 S. E. 113), held: “Ordinarily it takes more than a single transaction to constitute the carrying on of business.” See Kimmel v. Mayor &c. of Americus, 105 Ga. 694 (2), 697 (2) (31 S. E. 623). Among the cases in other jurisdictions which support the conclusion we have reached are the following: La Norris v. State, 13 Tex. App. 43 (44 Am. Rep. 699); Keller v. State, 123 Ala. 94 (2) (26 So. 323); State v. Morehead, 42 S. C. 215 (20 S. E. 544, 26 L. R. A. 585, 46 Am. St. Rep. 719); State v. Ray, 109 N. C. 736 (14 S. E. 83, 24 L. R. A. 529); U. S. v. Feigelstock, 14 Blatch. 322. See also Words & Phrases, Vol. 1, pp. 979-81.

As only one sale was shown, and this was an unbroken carton •of cigarettes which was sold at the wholesale price, and there was no evidence that at any other time the accused offered to sell at retail, or that he intended to engage in the business of selling at retail, the evidence failed to show a violation of the law. As a new trial must result from this ruling, it is unnecessary to consider the other allegations of error.

Judgment reversed.

Broyles, G. J., and Lulce, J., concur.