Commonwealth v. Bruckheimer

Metcalf, J. Judgment must be arrested in this case, because the indictment does not aver that the defendant sold jewelry, or exposed or offered jewelry for sale, as a hawker, pedler or petty chapman, or while going about as such. The St. of 1846, c. 244, § 2, on which this indictment is founded, does not render any sale of jewelry unlawful, besides sales thereof by a hawker, pedler or petty chapman, or other person, going from place to place, carrying it for sale, or exposing it for sale. A person who is hawker, pedler or petty chapman, may sell jewelry as lawfully as any other person, unless he sells it in the capacity or character of hawker, pedler or petty chapman. Unless, therefore, an indictment avers that he sold jewelry in such capacity or character, no offence is charged against him. See Merriam v Langdon, 10 Conn. 460, 468; Bacon v. Wood, 2 Scam. 265 Alcott v. The State, 8 Blackf. 6. But, for aught that this indictment avers, the defendant, though he was, at the time and place of the alleged sales, a hawker, &c. may have made those sales without going about selling or exposing jewelry for sale, or acting as a hawker, &c. Judgment arrested.