74 S.W. 31 | Tex. Crim. App. | 1903
Appellant was convicted under the second section of the Act of May 12, 1899, which is as follows: "From every person or firm who peddles out clocks, agricultural implements, cook stoves or ranges, wagons, buggies, carriages, surreys and other similar vehicles, washing machines and churns, an annual tax of $250, to be *47 paid in each county in which said occupation is pursued; provided, that a merchant who pays an occupation tax, as now required by law, shall not be required to pay this special tax for selling the articles named in this section, when sold in his place of business." The information fails to negative the matter set out in the latter part of the section, and, for this reason, it is criticised as being insufficient to charge the offense sought to be charged. We believe this contention is correct. It is not an offense against the law if the party is a merchant who pays the occupation tax for selling the articles in his place of business. This then becomes a part of this offense, and the statute can not be intelligently read, omitting this proviso, so as to carry out or arrive at the intention of the legislative mind in defining the offense. And to charge the offense of failing to pay the $250, under the circumstances set out in the statute, it would be necessary, in order to hold the accused accountable, to show he was not exempt by reason of having paid the occupation tax for selling goods in his place of business. In other words, if he has paid the occupation tax of a merchant, as required by law, he is not amenable to this special tax, for as such merchant he is selling in his place of business. It occurs to us that the information should have negatived the fact that he was such merchant selling in his place of business.
It is further contended that the court erred in giving the peremptory instruction to the jury to convict appellant, and that appellant was not a peddler within contemplation of this law. Without going into a detailed statement of the evidence, it is shown that appellant represented and was the agent of the Wrought Iron Range Company, a private corporation, duly incorporated under the laws of the State of Missouri; that it had filed with the Secretary of the State of Texas a certified copy of its articles of incorporation, and had obtained from such Secretary a permit to do business in Texas; that said company, acting through Ben. P. Scott, rented a house in Cameron, Milam County, in which its ranges were stored until they were taken out to be delivered to purchasers. The business was carried on substantially as follows: That they had "sample men" and "delivery men." The sample men were furnished by Scott with a wagon and team, which was the property of the Wrought Iron Range Company, and a sample range; and certain territory in Milam County was designated for each of said sample men, which they canvassed. A range was taken by each of the sample men, and used by them in canvassing. These were exhibited to those to whom sales were expected to be made. When sales were made, they were either for cash or credit. If on credit, the sample men took the note for the price, which was made payable on October 1, 1901; and the form of note was given each sample man, and they had no authority to alter it. After the order was taken it was brought to the manager, Scott, at Cameron, who, after investigating the credit of the proposed purchaser, if satisfied, the range was delivered; if not, it was "turned down," and the range was not delivered. The sample man had no discretion as to whether or not the order was filled; this was left entirely to the discretion *48 of Scott, who had full power at all times, and at all times exercised it, to fill orders, arrange for board of men and animals, rent store-rooms, hire and discharge employes of said Wrought Iron Range Company, working with or under him, and to do, in fact, any and all things necessary in the selling of ranges in Scott's territory. Scott received the shipment of the ranges, which were consigned to the order of the Wrought Iron Range Company, in care of said Scott, and stored the ranges and sold them through his sample and delivery men, receiving the cash and notes taken by the sample men, and sending the cash and notes to the Wrought Iron Range Company. But Scott had no place of business in Milam County in which he sold ranges, and did not in fact, in person, make any sales or deliver any range. No order or note taken by the sample man was ever sent to the Wrought Iron Range Company at St. Louis to be filled; nor did it pass on the sufficiency of any order or notes, or, in fact, know of any transaction or sale made until the note or cash therefor was sent to it by said Scott. The notes were afterwards collected by a collector sent into the territory by the Wrought Iron Range Company for that purpose. Some of the orders taken were refused by Scott, because the credit of the intended purchaser was not satisfactory; and in such case the range was not delivered. If the order or note was satisfactory, Scott had the range delivered to the purchaser; and for this purpose two of the employes of the Wrought Iron Range Company were set apart, who were working under the direction of Scott, and known as "delivery men." These were furnished with a wagon and team, the property of said company, and the names and places of the residences of the purchasers, and they delivered the ranges in the same condition as when taken from the cars and stored in the wareroom. The statement of facts here describes the manner of shipment from St. Louis to the storeroom in Milam County, which is not necessary to detail. At no time, in said county, was a delivery ever made of a range at the time the order was taken. Under the terms of the order, defendant had sixty days in which to make the delivery of the range, but as a matter of fact they were usually delivered within from three to ten days from the time the order was taken. None of the "sample men" ever delivered a range; nor did any of the "delivery men" ever take or offer to take an order for a range; nor did Scott, in person, ever take an order, sell or deliver a range. The delivery men did not deliver for any particular sample man, or in any special territory, but delivered when and where they were directed by said Scott; sometimes delivering a range ordered through one sample man, and sometimes a range through another sample man. All of the parties named worked on a salary paid by the Wrought Iron Range Company; who also paid all their expenses, board, etc. Two car loads of ranges, numbering about 130, were shipped to Cameron, about sixty-five of which were delivered and sold in Milam County. "The business of selling said wrought iron ranges was conducted in the above manner in order to avoid paying the heavy tax, $250 for the State, and $125 in the county, in each county in which a sale is made, which tax *49 is levied against every person or firm who peddles out cooking stoves or ranges, and for the failure to pay which these cases are being prosecuted." This plan of doing business was in pursuance to the advice of the law firm of Finley, Harris, Etheridge Knight, of Dallas, and Henderson, Streetman Freeman, attorneys, at Cameron, who advised them that a business conducted as above stated would not be violative of the law; that, in their opinion, under the decisions of this State, it would be interstate commerce; and, independent of the question of interstate commerce, the agents of the Wrought Iron Range Company would not be peddlers within the meaning of the law above mentioned. That neither the Wrought Iron Range Company, nor any of the defendants, have ever paid any occupation tax in Milam County, nor procured any license as peddlers.
We deem it unnecessary to discuss at length the peremptory charge of the court instructing the jury to find defendant guilty and assess his punishment at not less than a fine of $375 nor more than double that amount. This is so clearly a charge upon the weight of the testimony that, in our opinion, it does not need discussion. The court should not assume the guilt of an accused and so charge the jury. This is inhibited by statute.
In our opinion the second contention is clearly tenable, to wit, under the facts stated, appellant was not a peddler within the contemplation of the section of the act above quoted. This question has been so frequently discussed that we deem it unnecessary to enter into an extended review of the decisions. Saulsbury v. State, 43 Tex.Crim. Rep., following Emert v. State,
Reversed and prosecution dismissed.