17 N.M. 267 | N.M. | 1912
OPINION OP THE COURT.
iThe appellant was convicted in the district court of Santa Fe County of engaging “in itinerant trade without first having obtained a license as a peddler.” -A demurrer was filed to the indictment, which was overruled, and the cause was submitted to the court upon an agreed statement of facts, a jury having been waived, and the court, upon such statement of facts, found the defendant guilty. Motion was filed in arrest of judgment, upon the same grounds specified in the demurrer to the indictment. The motion was overruled and defendant was sentenced to pay a fine of $10.00’ and costs, from which judgment this appeal is prosecuted. The only question urged upon this appeal is the insufficiency of the indictment to charge an offense against any penal statute of the (then) territory of New Mexico.
The material part of the indictment charges that the defendant “did unlawfully engage in itinerant trade without first having obtained a license as a peddler, and without having any license as a peddler she, the said Pattie M. Turner then and there selling dry goods and merchandise at retail to individual purchasers, which said purchasers were not dealers in the articles sold, and the same not being maps, books, newspapers, fuel, fruits and domestic machinery, she the said Pattie M. Turner, not then and there having a merchandise license.”
The indictment was apparently drawn under sec. 16, chap. 128 of the laws of 1905, the material portion of which reads as follows:
“Every itinerant vendor who sells or exposes for sale, either at public or private sale, in any county of this territory any manufactured goods, wares, jewelry or merchandise without having first procured a territorial license, and the license from the county in which he sells or exposes for sale such manufactured goods, jewelry, wares or merchandise, as provided for in this act........................ shall be punished by a fine of not less than $10, etc.”
The attorney general admits that the indictment is not good, under this section of the statute, because it fails to charge that the defendant was an itinerant vendor, or to charge the acts included under the definition of an itinerant vendor in the first section of the act. The indictment goes no further than to charge that the defendant “did unlawfully engage in itinerant trade.” As it is admitted by the state that the indictment fails to charge a violation of this section of the statute we need not devote further time to a discussion of this issue.
The attorney general, however, contends that the indictment does charge an offense under sections 4141 and .4149, C. L. 1897. Section 4141 imposes a license tax upon certain vocations and business among which are peddlers. Section 4149, originally made it a penal offense for any person to carry on any business without a license, for the carrying on of which a license was required by the act of which said section formed a part. But this act was amended by see. 4 of chap. 108 of the laws of 1901, so that it now reads as follows:
“Any person, firm or corporation who shall engage in or carry on any business or avocation, for which a license is required without having paid such tax, shall be required to pay double the amount of such tax for the time which expired from the beginning of such business or avocation until a legal application for a license shall have been made; and if such person, firm or corporation shall refuse or neglect to take out a license, and pay the penalty above mentioned, for thirty days after receiving a notice from the assessor, a notice such as is required by section 4155 as amended by section 5 of this act, shall be deemed guilty of a misdemeanor, and, upon conviction, be fined any sum not less than fifty nor more than one hundred dollars, or be imprisoned in the county jail not more than six months.”
