Shiff v. State

• Decision Date: 14 June 1888
• Citation: 84 Ala. 454,4 So. 419
• Parties: SHIFF v. STATE.
• Court: Alabama Supreme Court

4 So. 419

84 Ala. 454

SHIFF v. STATE.

Supreme Court of Alabama

June 14, 1888

Appeal from circuit court, Cherokee county.

The appellant was indicted for engaging in or carrying on the business of a transient or itinerant dealer in goods, wares or merchandise without a license. The indictment was found against "Mike" Shiff. The appellant pleaded in abatement a misnomer; his name being "Ike" Shiff instead of "Mike" Shiff, as contained in the indictment. The solicitor confessed the plea, and, "by leave of the court," amended the indictment accordingly. The defense relied on by the appellant in the court below is shown in the opinion. On the trial there was evidence, as shown by the bill of exceptions, tending to show that the defendant had proclaimed his goods on the street in the town of Centre, Cherokee county, but had not sold them to the highest bidder,-not asking for a highest bidder, but selling them at a fixed price; that he had sold his goods, under similar license, in the counties of De Kalb, Etowah, and Talledega, but that he had sold his goods nowhere else in the county of Cherokee than in the town of Centre.

Matthews & Daniels, for appellant.

T N. McClellan, Atty. Gen., for the State.

SOMERVILLE J.

The statute permits an indictment to be amended, "with the consent of the defendant, when the name of the defendant is incorrectly stated, or when any person, property, or matter therein stated is incorrectly described." Code 1886, § 4389. It is the obvious meaning of this statute that an indictment shall not be amended, even in an immaterial matter, without the consent of the defendant, as is the rule of the common law." Gregory v. State, 46 Ala. 151; Johnson v. State, Id. 212. The present indictment was amended by the solicitor so as to correct a misnomer set up by plea in abatement on the part of the defendant. The judgment entry recites that it was done "by leave of the court." It nowhere appears from the record that the consent of the defendant was obtained, unless such consent can be implied by his failure to dissent. It is our opinion that the record should show affirmatively that the consent of the defendant was given to the amendment. Mere silence, or failure to object, ought not to operate as a forfeiture of the defendant's right to be tried on the indictment in the form it has been framed by the grand jury. It would be an unsafe rule to infer consent from mere silence on the part of the defendant in such cases, and such a practice would not be in harmony with our past rulings on other questions of an analogous character. Flanagan v. State,19 Ala. 546; Spicer v. State, 69 Ala. 159; Sylvester v. State, 71 Ala. 17. For this error the judgment must be reversed.

The defendant in this case was convicted of the offense of engaging in or carrying on, without a license and contrary to law, the business of a transient or itinerant dealer in goods, wares, or merchandise, other than that of a licensed peddler, or traveling agent of a wholesale dealer in said articles, making sales thereof by sample. Code 1886, § 629 subd. 34. He justified under a peddler's license, which was introduced in evidence, and conferred on the partnership of Ike Shiff & Co., of which he was a member, full authority to engage in the business of peddling on foot in the county of Cherokee, where the license was taken out and the indictment was found. Code 1886, § 629, subd. 31. If the facts in evidence showed that the defendant was a peddler on foot, in the popular signification of that term,-that he walked from house to house, or from place to place, carrying his goods with him, and selling them by retail,-then his peddler's license, issued to the partnership of which he was a member, would be a full protection to him. Code 1886, §§ 631, 632; Th...