Sterne v. State

| Ala. | Jan 15, 1852

.GrOLDTHWAITE, J.

Tbe first question arises on tbe •sufficiency of tbe indictment, which it is insisted is defective for tbe want of sufficient certainty, or in other words, that tbe particular acts necessary to constitute hawking and peddling ■must be alleged. It is conceded that, as a general rule, tbe indictment must contain tbe facts and circumstances which constitute tbe offence, alleged with such precision and certainty that tbe defendant may demur or plead to tbe indictment, that hé may be able to prepare bis defence, and that 'there may be no doubt as to tbe judgment to be given on bis conviction, Arch. O. P., 39 ; but we do not understand from this rule that it is necessary to explain tbe meaning of words used, or to set forth the evidence. It may be that if the law had made it a penal offence for any one to hawk or peddle, that it might be necessary to allege the particular act of hawking and peddling, and that the charge in general terms, although in the words of the statute, would not be sufficient. But such is not the case we are called upon to decide. In the case presented the gist of the offence is not the hawking and peddling, but the being engaged in it under such circumstances as show that the defendant followed the pursuit as a business. It is not necessary, therefore, under the operation of the rule referred to, to set forth the facts which constitute hawking and peddling, any more than it would be required in an indictment for keeping a pool or bagatelle table without a license, to state what constitutes such table. It would be simply giving the definitions of the terms used, and could do the defendant no good in informing him of the particular facts which he was called upon to defend; nor would it advise the court in relation to the judgment to be rendered, for the court is bound to know judicially the meaning of the terms employed. As, however, the general rule requires the ingredients of the offence to be stated in the indictment, so in this case, unless relieved from the operation of that rule, the facts and circumstances should be stated in the indictment, which would show that the defendant was engaged in the business of hawking and peddling.

In the case of Moore v. The State, (16 Ala., 411" court="Ala." date_filed="1849-06-15" href="https://app.midpage.ai/document/moore-v-state-6504051?utm_source=webapp" opinion_id="6504051">16 Ala. Rep., 411,) the statute on which this indictment was framed received a judicial construction, and it was there held that the term “business,” as used in that statute, was synonymous with employment, and that one who, without being engaged in the particular business, did a single act appertaining thereto, did not fall within its meaning. It follows from this decision that any number of acts of hawking and peddling would not necessarily and as a legal conclusion constitute the offence intended to be covered by the statute, however proper the evidence of such acts might be to enable the jury to arrive at a correct result as to the guilt or innocence of the defendant. The term “ business,” therefore, as employed by the statute, being continuous in its character, not necessarily implying a single act or any number of acts, forms an exception to the general rule before stated, and falls witbin the principle applicable to barratry and some other offences, that where the charge is of a complicated nature, consisting of a repetition of acts, or where the offence includes a continuation of acts, it is unnecessary to set them out in the indictment. Hawkins P. C. Bk. 2, Ch. 25, § 59; Ch. C. L. 231. For these reasons, we hold the indictment was good.

The next question is presented by the refusal of the court to give the first charge. The charge as requested is equivalent to asking the court to charge that, upon the whole evidence, the defendant should be acquitted, and involves the same question as a demurrer to the evidence would have done. It is unnecessary to decide whether the answer of the witness stated a legal conclusion; conceding such to have been the case, it was perfectly competent for him to do so by the consent of the defendant, and by allowing his answer to pass without objection, the defendant assented to its correctness. That being done, the legal conclusion, if it was one, must be taken as correct. There was no error in refusing this charge.

The only remaining question on the record is settled by the terms of the proviso of the act of 9th February, 1850, which provides that no prosecution originating and unclosed under the existing laws, should be released or affected thereby. The act of 1848, under which the indictment was found, prescribed the amount of the fine for the offence charged at treble the amount of the license money. The plain object of the Legislature was not to affect the prosecutions under the first act in any way. The charge of the court upon this point was correct. The judgment is affirmed.