State v. Amick

• Citation: 189 A. 817
• Decision Date: 22 January 1937
• Docket Number: No. 77.,77.
• Parties: STATE v. AMICK.
• Court: Court of Appeals of Maryland

189 A. 817

STATE

v. AMICK.

No. 77.

Court of Appeals of Maryland.

Jan. 22, 1937.

Appeal from Circuit Court, Allegany County; David A. Robb, Judge.

Richard Amick was indicted for violating laws requiring hawkers and peddlers to have licenses for the sale of their goods, wares, and merchandise. From an order of the circuit court overruling the State's demurrer to the special pleas of the defendant to the indictment, the State appeals.

Appeal dismissed.

Argued before BOND, C. J., and SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

Hilary W. Gans, Deputy Atty. Gen., and Walter C. Capper, of Cumberland (Herbert R. O'Conor, Atty. Gen., and William A.Huster, State's Atty., of Cumberland, on the brief), for the State.

Carlyle Barton and H. Warren Buckler, Jr., both of Baltimore (William C. Walsh, of Baltimore, on the brief), for appellee.

MITCHELL, Judge.

The appeal in this case is that of the State of Maryland from an order of the circuit court for Allegany county overruling the demurrer of the State to the special pleas of the appellee to the first, second, and third counts in an indictment found against the appellee, defendant below.

The first count in said indictment charges the defendant with having on the 14th day of March, 1936, and on divers other days, in violation of the laws relating to licenses for the sale of goods, wares, and merchandise by traders, kept and used a certain place in said county, with the intention and for the purpose of selling with a view to profit in the prosecution of said sales, as a regular business, certain goods, wares, and merchandise, to wit, one loaf of bread, without taking out a license therefor, the defendant not being the grower, maker, or manufacturer thereof.

The second count, which is substantially in the words of the first count, charges that the defendant sold one loaf of bread, without taking out a license therefor, while not being then the grower, maker, or manufacturer thereof.

By the third count, the defendant is charged with the violation of the laws of this State relating to licenses for the sale of goods, wares, and merchandise by hawkers and peddlers, in that he kept and used a motor vehicle, with the intention and for the purpose of selling therefrom, from door to door, with a view of profit in the prosecution of such sales, as a regular business, and did sell, one loaf of bread, without first taking out a license therefor, as required by law, the defendant not being at said time the grower, maker, or manufacturer thereof.

In compliance with a petition, and order of the court thereon, for a bill of particulars, on behalf of the defendant, the State's Attorney thereupon filed a statement of the particular facts which he expected to prove in support of the indictment. Briefly, these facts were: That a sale of one loaf of bread was made by the defendant from an automobile on March 14, 1936, while on Gephart drive, in Cumberland; that two days later a like sale was made to the same person in the same way; that on the latter date similar sales were made to two other parties on Gephart drive; and that on March 27, 1936, he sold some buns from an automobile at the corner of Allegany and Greene streets, in Cumberland—all of which sales were made without the defendant having first sured a trader's or hawker's and peddler's license.

Thereupon the defendant filed a plea of not guilty, and in addition thereto, four special pleas to the indictment. By the special pleas it is set forth: (a) As to the first count in the indictment, that at the time of the offense therein charged, he was the agent atid employee of the Harris-Boyer Company, of Johnstown, Pa., which company was engaged in the business of manufacturing bread, cake, and other bakery products; that said employment was for the purpose of distributing the bakery products of said company to its regular customers residing in certain sections of the city of Cumberland, in Allegany county; that all the sales or other transactions referred to in the first count of said indictment were made by him as agent of the company and under its authority; that said company was the owner of the bakery products referred to in the indictment, and was also the maker and manufacturer thereof; and that, acting as such agent, he was not required to take out a trader's license under the laws of this State, (b) As to the second count, the special plea directed thereto asserts that there is no law of the State requiring the defendant to obtain a license, other than the license referred to in the special plea to the first count, and the license referred to in the special pleas hereinafter mentioned to the third count, (c) To the third count two special pleas were filed. The first of these was designed to question the constitutionality of sections 26 to 31, inclusive, of article 56 of the Code, relating to the requirement of licenses for hawkers and peddlers. Inasmuch, however, as the subject-matter of this plea was not pressed in this court, it becomes unnecessary to consider the same, (d) The second special plea to the third count admits the sale, therein alleged, as well also as the other specific sales set forth in the bill of particulars, but in justification thereof, alleges that such sales were made to regular customers on standing orders previously given. It is further set forth that the defendant operated a motor vehicle owned by his employer, for the purpose of distributing goods, wares, and merchandise owned and manufactured by said employer; that he distributed bakery products of his employer along a regular route in the city of Cumberland prescribed by his employer, to regular customers upon standing orders previously given; that all of said sales and deliveries were made pursuant to standing orders previously given, with the exception of occasional isolated sales to persons who stopped him on his route and requested certain bakery products, which he alleged did not average one a day; that he did not carry additional supplies from which to make numerous sales to other than regular customers, the total of occasional sales representing less than one per cent. of the total sales made by him; that from time to time new customers are secured along the same route, averaging from eight to ten a month, obtained through recommendations made by old customers, and upon being secured, these new customers are served upon receipt of standing orders received from them, similar to regular customers of the company; that he did not cry his wares, or undertake to attract attention by any device, and made daily and not intermittent trips to the city of Cumberland, always following the same regular route; that he was employed upon a regular salary basis, plus certain commissions; that under his contract with the employer, the company supplied all equipment, with the requisite quantity of bakery products needed for distribution, the title to the same at all times remaining in the company; that he was vested with authority to extend credit to certain customers in the name of the company, within certain limits, and that at no time did he act other than as the agent of the company for the distribution of its products; that the route in his charge was designated as "No. 46" by his employer; that persons living along the route were solicited by representatives of the company and supplied with samples of the company's products, whereby 188 persons living along the route...