Hays v. Com.

• Decision Date: 27 February 1900
• Citation: 55 S.W. 425,107 Ky. 655
• Parties: HAYS v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

55 S.W. 425

107 Ky. 655

HAYS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

February 27, 1900

Appeal from circuit court, Jessamine county.

"To be officially reported."

J. L Hays was convicted of the offense of peddling without license, and he appeals. Reversed.

Ben P Campbell, Humphrey & Davie, and Breckinridge & Shelby, for appellant.

B. A Crutcher, Frank P. O'Donnell, and J. W. Mitchell, for the Commonwealth.

GUFFY J.

The appellant was indicted, tried, and convicted upon the charge of peddling without license, and, his motion for a new trial having been overruled, he prosecutes this appeal.

The indictment reads as follows: "The grand jury of Jessamine county, in the name and by the authority of the commonwealth of Kentucky, accuse J. L. Hays of the offense of peddling, committed as follows, viz.: That said J. L. Hays on the 7th day of March, 1899, in the county aforesaid, and on divers other days within twelve months before the finding of this indictment, did unlawfully, not having a license so to do, and being then and there an itinerant person, vend sell, and offer to sell goods, wares, and merchandise, to wit, oil, to Walter Hendren, against the peace and dignity of the commonwealth of Kentucky." The court overruled appellant's demurrer to the indictment, and this is one of the grounds relied upon for reversal. Section 4216 of the Kentucky Statutes reads as follows: "All itinerant persons vending lightning rods, patent rights or territory for the sale, use or manufacture of patent rights, goods, wares, merchandise, clocks, watches, jewelry, gold, silver, or plated ware, spectacles, drugs, nostrums, perfumery, and any other thing not hereinafter specially exempt, shall be deemed peddlers." It is also provided in section 4217 that all persons who shall, under cover of bona fide merchants, come into or take up a temporary residence in any county for the purpose of disposing of any goods, either at auction or otherwise, except as otherwise provided in this section, shall be deemed peddlers. It is provided by section 4218 that no person shall be deemed a peddler for selling tinware, agricultural implements, sewing machines, portable mills, books, pamphlets, papers, meat, stoneware, or farm or garden products, nor merchants nor their agents for selling by sample, but nothing therein exempts itinerant persons selling agricultural implements from paying license under this law. It is very earnestly insisted for appellant that the indictment is defective, because it does not state the facts showing that the defendant was engaged in the business of a peddler, or that he made the particular sale by peddling, and also fails to show that the appellant delivered the oil alleged to have been sold. It is also insisted that the indictment does not sufficiently allege that appellant was a peddler, or that he made the particular sale as a peddler or by peddling. It seems to us that the indictment is sufficient, and sufficiently charges the facts necessary to constitute the offense charged. It will be seen that the statute, supra, defines a peddler, and the indictment under consideration clearly charges that the defendant was an itinerant person, and that he sold the oil in question. It is undoubtedly true that, in order to constitute a person a peddler, he must not only be an itinerant person, but must be engaged in vending or selling the articles mentioned in the prohibitory statute as a business or occupation. It is not, however, necessary that it should be his sole business, nor even his principal business; but it must nevertheless be a considerable part of his occupation, business, or avocation. A person may have a permanent home in this state, where he may store his principal goods, and may even pay tax thereon, and still be an itinerant person, in the meaning of the statute, if he travels about from place to place vending or selling the articles prohibited by the statute. The guilt of the person on trial must be established by proof of facts showing him to be a peddler without license. It is evident that a corporation, if in fact it engaged in peddling through its agent or servant, would be liable to indictment and conviction the same as a natural person, and likewise the agent so violating the law might be indicted and punished. It is very earnestly insisted that the statute in question is unconstitutional; that it is in violation of the fourteenth amendment of the constitution of the United States, and also the...