Hirschfelder v. State

PARSONS, J. The Attorney General contends that if tíié indictment be defective under the act of 1848, it is good under the act of 1837, (Clay’s Digest, p. 562, § 27.) The first séction of the latter act (ib. § 26,) authorised the Commissioners Court to prescribe the sums to be paid in their respective counties 'by every há'wker, or ped’fer of elócks, or 'dther goods, wares, or merchandise of any kind whatever, for a license for every wagofl; pack horse; carriage or cart, by them 115 employed for pedling, but the sum to be paid for the license was, in no county, to be less than fifty dollars. Under that ac't the different classes of pedlers might be required to pay the same or different sums for a license, as the Commissioners Courts might prescribe. There is no doubt, however, but that those courts Were in the habit of prescribing different sums, so that the pedlers who employed wagons in the business had to pay the largest sum, with discriminations as to the rest. But by the second section of that act, if any pedler should barter, exchange or sell any clocks, &c., without first taking out á license, agreeably to the first section, he should forfeit and pay, for every article sold, the sum of two hundred dollars. So that the pedler, whether he belonged to one class or another, was to páy the same penalty for selling without license. For this reason it Was, perhaps, not necessary for an indictment under that act to designate the class to which the pedler belonged. — See May v. The State, 9 Ala. 167. This brings us to the act of 1848, which, in respect of the point we are considering, is inconsistent with and therefore repeals all other acts, and we are entirely satisfied that this indictment is to be tried by that act; for the offence was committed and the indictment was found after it became the law. It provides that every person engaged, or intending to engage in any of the kinds of business thereinafter mentioned, should, before he engaged therein, procure from the clerk Of the County Court, in which he intends to do such business, a license for the same, to be operative for one year from the date thereof, for which the prices thereinafter mentioned were to be paid — and the price of a license for hawking and pedling was afterwards by the same act prescribed in this language: “ for hawking and pedling, for each boat two hundred dollars g for each wagon in each county, seventy-five dollars; for each horse in each county, when the business is pursued on horse back, forty dollars, and when pursued on foot twenty dollars,” with a proviso which is not now material. The part of the act which prescribes the penalty is “ and in default of procuring such license, the person or persons so doing shell business, or following such employment, shall be liable to pay treble the sum required for such license, to be recovered by indictment,” &c. Now, this indictment does not designate the class to which the pedler be* longed — that is to say, it omits to state whether he used, in the 116 business he was pursuing, a boat, wagon, or horse, or pursuecj it on foot, although the price of the license and the sum to be recovered by indictment is different in each of the cases, and the difference is fixed by the act itself — and in this the act of 1848 differs from the act of 1837. Nothing, in this case, was involved in the issue of fact, but the question of the defendant’s guilt. The fine was not to be assessed by the jury in this case, for the statute had prescribed its amount and it was the proper business of the court to render judgment for the amount — that being the proper business of the courts in all cases of fines at the common law. They were never assessed by the jury. — Chitty’s Crim. Law, 808. The assessment of the fine in this case by the jury was mere surplusage and is no basis for the court to act on. The case is as if the jury had not assessed the fine. This indictment does not enable the court to render any judgment, because the court cannot ascertain from it the specific of-fence of which the defendant is guilty. It is wholly uncertain whether he pursued his business as a pedler by boat, wagon, horse, or on foot, and therefore it is entirely uncertain which of the fines prescribed by the statute should have been imposed by the Court. — Mr. Chitty states the general rule, we think, with perfect accuracy: “ It is a general rule, that all indictments ought to charge a man with a particular specified offence, and not with being an offender in general, for no one- can know what defence to make to a charge which is thus uncertain; it cannot be pleaded in bar or abatement of a subsequent prosecution, nor can it appear that the facts given in evidence against a defendant on such general accusation are the same of which the iudictors have accused him, nor will it judicially appear to the court what punishment is proper on conviction.”— 1 Chitty’s Crim. Law. 230. If we try this indictment by either of the principles expressed in this quotation, but more especially the last, it is bad. Therefore the judgment is reversed.