Morningstar v. State
| Decision Date | 21 January 1903 |
| Citation | 135 Ala. 66,33 So. 485 |
| Parties | MORNINGSTAR v. STATE. |
| Court | Alabama Supreme Court |
Appeal from city court of Mobile; Os. J. Semmes, Judge.
Henry Morningstar was convicted of engaging in and carrying on the business of a dealer in pistols without a license, and appeals. Reversed.
Fitts Stoutz & Armbrecht, for appellant.
Chas G. Brown, Atty. Gen., and R. H. & N. R. Clarke, for the State.
The defendant was indicted for having engaged in or carried on the business of a dealer in pistols without a license. Acts 1900-01, p. 2630, subd. 63.
1. To engage in or carry on a business, within the meaning of the statute, is to pursue an occupation or employment as a livelihood, or as a source of profit. Harris v State, 50 Ala. 127; Weil v. State, 52 Ala. 21.
Doing a single act, pertaining to a particular business, will not be considered, as has been held, engaging in or carrying on the business, yet a series of such acts would be so considered. Lemons v. State, 50 Ala. 130; McPherson v State, 54 Ala. 224. However, as has again been held, a single act may be sufficient to constitute an "engaging in or carrying on the business," according to the intent with which the act is done, and other proof in the case. If a party makes all the necessary preparations to carry on the business, holds himself out for the business, solicits trade, and makes one sale, intending to continue the business, he is engaged in or carrying on the business, within the meaning of the law. Abel v. State, 90 Ala. 633, 8 So. 760. In the case before us, the evidence for the state tends to show, that defendant had a place of business and sold a pistol to Charlie Mason for $5, and afterwards at the same place offered to sell him another for $11. The evidence of the defendant, himself, showed that he sold other pistols. The motion of defendant to exclude the evidence of said Mason, because illegal and irrelevant, was, therefore, properly overruled.
2. The defense relied on by defendant was, that he was a pawnbroker, and as such had taken out a license and paid the state and county for the same for the year in which the act for which he was indicted occurred. He proved, and his evidence is uncontradicted, that he did not sell or offer for sale any pistol except such as had been taken in pawn by him as a pawnbroker; that he dealt in no other kind; that he did not buy pistols to sell, nor order any from elsewhere for sale, and kept only such as came to him in pawn; and now and then he sold one on which he had made a loan and which had not been redeemed; that in such cases he sold the article privately for all he could get out of it, provided it was what he had loaned on it, and for a profit on it, if he could. He further stated that he sold at private sales because the parties who negotiate loans sign an agreement to that effect.
Under this undisputed...
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