16 Ala. 431 | Ala. | 1849
The indictment charges the defendant with keeping an establishment in the county of Mobile, on the first day of June 1848, for the sale of confectionary, cakes, candies and fruits, without first procuring a license so to do according to law. The defendant was found guilty, and the court entered judgment that he be fined thirty dollars, that being three times the amount of the price of license required to be paid by persons engaged in that business.
Upon the trial, the defendant demurred to the indictment, because it did not disclose that there was an informer, insisting that as the statute gave one half of the penalty to the State, and the other to the informer, it must appear who the informer is. Acts of 1848,- p. 32, § 98.
The defendant also objected, upon the trial, to the examination of Seaborn Williams, who was marked upon the bill of indictment as a witness, and who was the only witness ex
The statute, so far as it relates to the remedy, is somewhat unique and difficult of comprehension. It requires that the penalty shall be recovered by indictment, upon three days’ previous notice, by motion of the solicitor before the Circuit Court, &c., one half to the use of the informer, the other half to the State. It is insisted, that the statute contemplates an informer, and that his name must appear as such in connection with the indictment. We do not agree with the counsel, that the indictment was demurrable, because no informer’s name appears upon it. A just construction of the act would not allow the right of the State to punish those who seek to avoid her revenue laws, and to recover from them the penalty imposed, and which is a compensation for the loss of revenue consequent upon the failure of the defendant to obtain license, to depend upon the fact whether any one would become an informer in the sense contended for. Were such the law, a large portion of the public revenue might go uncollected, as it rarely happens that the small sum allowed to informers is sufficient to stimulate them to set on foot such prosecutions. The State receives the penalty, to-wit, treble the price of the license, one half to the use of the informer, if there be one, and if no informer claims the moiety, the State may retain the whole. Regarding the prosecution as a means of recovering the penalty, we see no reason why the doctrine applicable to qui tarn actions should not apply, in respect to which Judge Blackstone says: If the king commence the action, he shall have the whole forfeiture. 2 Bla. Com. 162—citing 2 Haw. Pl. Cr. 368. The defendant cannot complain that the State, instead of the informer, takes the other moiety. It is the same to him, as the penalty is not thereby incurred, and he is deprived of no right which he could assert, were the name of an informer endorsed upon the indictment. The demurrer was therefore properly overruled.
/4. There is rip error in the charge of the court, that if the (wife carried on the establishment with the privity and consent | of the husband, he was responsible for the consequences. If * she was acting with his privity and consent, she was acting I for him, as much as if he had employed any one else to superintend the sales, and he was entitled, by virtue, of his marital relation, to her earnings; he was also, as the proof informs us, at the shop occasionally, and although otherwise employed during the da3q returned home at night. Under such circumstances, we think no ease can be found which holds that the husband is not liable. Croft’s case, in Strange 1120, decides that the wife may be convicted of selling gin against the injunction of the 9th Geo. 2, c. 23; but she acted without the company or coercion of her husband, and was alone the offender. There can be no doubt of the husband’s liability, when the wife acts with his concurrence. 1 Russell, 17, et seq.; 10 Johns. Rep. 246.
There is no 'error in the judgment, and it is consequently affirmed.