| Ala. | Mar 2, 1907
Appellant was convicted of peddling without license. A motion was made in the court beloiv to quash the indictment upon the grounds: First, that it does not affirmatively appear that the indictment was presented to the court by the foreman of the grand jury in the piesence of 11 other jurors; second, that section 5023 ivas not complied with in discharging a sick juror and supplying his place, so as to complete the grand jury. The first ground of the motion was properly overruled.-—McKee’s Case, 82 Ala. 32" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/mckee-v-state-6512731?utm_source=webapp" opinion_id="6512731">82 Ala. 32, 2 South. 451. The other objection is vain, because the record shows a substantial compliance with the requirements of section. 5023 of the Code of 1896, The cases cited in support of this ground of the motion are based' upon a different state of facts to those here presented, and are therefore inapplicable.
The appellant was convicted under the first- count- of the indictment only, so no consideration need be given the second count in any aspect. The amended subdivision 61 of section 4122 of the Code of 1896 provides that licenses must be procured by peddlers, and various classes of peddlers are -designated, and different sums for each class are required to be paid for licenses. — Gen. Acts 1903, p. 214.- Section 5467 of the Code of 1896, after making -it an offense to- carry on a .business with: out license where, one. is .required, fixes,as .the penalty of-
It is evident that varying penalties may be inflicted for peddling without license, where such, is required. When that is the case, the indictment must show to- what class the offender belongs, in order that, from the indictment, the penalty may be known and inflicted. The reasons for this rule need not here be reiterated, since they are stated with clearness in these authorities!-—Hirschfelder's Case, 18 Ala. 112" court="Ala." date_filed="1850-06-15" href="https://app.midpage.ai/document/hirschfelder-v-state-6504316?utm_source=webapp" opinion_id="6504316">18 Ala. 112; Harris’ Case, 50 Ala. 127" court="Ala." date_filed="1874-01-15" href="https://app.midpage.ai/document/harris-v-state-6508629?utm_source=webapp" opinion_id="6508629">50 Ala. 127; Hafter’s Gase, 51 Ala. 37" court="Ala." date_filed="1874-06-15" href="https://app.midpage.ai/document/hafter-v-state-6508776?utm_source=webapp" opinion_id="6508776">51 Ala. 37. Of course, in the case of violation of the revenue laws in the sales of liquors, the statute (section 5077) abrogates the rule above announced. The case of Keller v. State, 123 Ala. 94" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/keller-v-state-6518211?utm_source=webapp" opinion_id="6518211">123 Ala. 94, 26 South. 323, in the respect that it affirms, the validity of an affidavit similar in structuie to the indictment in this case, is unsound, and must b.e overruled to- that extend.
For the error committed in overruling the demurrer, the judgment must be reversed, and the cause remanded.
Reversed and remanded.