State v. Sheppard.

Connor, J., after stating the case: The defendant is indicted for selling and putting up lightning rods without first having obtained a license, as required by sec. 47 of the Revenue Act—chap. 247, Laws 1903—which is in the following words: “On every person or company who puts up light *581 ning rods twenty-five dollars annually for each county in which he carries on business or sells lightning rods.” It is declared by the Eevenue Act that the tax shall be “imposed for the privilege of carrying on the business or doing the act named.” The evidence tends to show that after Cole Bros, had, pursuant to a written contract made with Casey through another person as their agent, sold to him certain lightning rods, the defendant delivered them and superintended the hands in putting them up. This of itself falls far short of showing that the .defendant carried on the business of putting up rods, being the business for the carrying on of which the license is required by the statute. While it is true that in construing Eevenue Laws, requiring a license for carrying on certain trades, or practicing professions,-evidence of one or more acts is competent to be considered by the jury, they are not per se conclusive evidence to sustain the charge. It is true that the defendant says he is agent for Cole Bros., under the management of H. T. Day in putting up rods. It may be that, in the light of the entire evidence, the jury may under proper instructions have found that he was “carrying on the business.” The only test so far as the record shows, which His Honor applied, was whether he had more rods in his possession than were necessary to rod Casey’s house; if so, he was guilty. This fact if found by the jury may have been a circumstance to be considered, tending to show that he was carrying on the business. It was not of itself any violation of the statute to have more rods than were necessary to rod the particular house. The contract made with Casey by Cole Bros, was to deliver “sufficient 5-8 * * * rods.” The fact that they sent more, than were necessary for that purpose could not make the defendant guilty. It may be that the entire charge is not set out and that the judge explained the law fully to the jury. However this may be, the portion sent up is, we think, erroneous. *582 The language of the statute is far from clear, but we think it .sufficiently appears, when read in the light of the other sections, that it was not intended to require a license for a single act of putting up lightning rods, but for carrying on the business of putting up rods. This clearly appeared from the special verdict in State v. Gorham, 115 N. C., 721. The court, by McRae, J., says that the defendant was an “itinerant putting up lightning rods.” State v. Roberson, 136 N. C., 587. The averment that he sold lightning rods is surplusage. It would be safer for the solicitor to follow the language of the statute which requires a-license for carrying on the business of putting up rods. We do not deem it necessary to discuss the other questions raised by counsel. For the error pointed out there must be a New Trial.