State v. Hooker

• Decision Date: 11 March 1935
• Docket Number: Criminal 809
• Citation: 41 P.2d 1091,45 Ariz. 202
• Parties: STATE OF ARIZONA, Appellant, v. GEORGE W. HOOKER, Respondent
• Court: Arizona Supreme Court

41 P.2d 1091

45 Ariz. 202

STATE OF ARIZONA, Appellant, v. GEORGE W. HOOKER, Respondent

Criminal No. 809

Supreme Court of Arizona

March 11, 1935

APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Case remanded with instructions.

Mr Arthur T. La Prade, Attorney General, Mr. P. H. Brooks Assistant Attorney General, and Mr. Glenn Copple, County Attorney, for Appellant.

Mr. W F. Timmons, for Respondent.

OPINION

LOCKWOOD, C.J.

George W. Hooker, hereinafter called defendant, was charged by information filed in the superior court of Yuma county with the offense of hawking, peddling and selling goods, wares and merchandise without a license. The charging part of the information reads as follows:

"That the said George W. Hooker on or about the 10th day of November, 1933, and before the filing of this information, at and in the County of Yuma, State of Arizona, did then and there, wilfully and unlawfully carry on the business of a peddler, itinerant vendor and traveling merchant, in the selling of goods, wares and merchandise, by then and there going and traveling from place to place in an automobile to hawk, peddle, sell and offer for sale the same, and not within any incorporated city or town, and did then and there wilfully and unlawfully hawk, peddle, offer for sale and sell and deliver from said automobile to various and divers persons sundry boxes and cartons of cigarettes and cigars and candy, without then and there having and obtaining from the sheriff of Yuma County, State of Arizona, and without ever having made application to said sheriff for a license to hawk, peddle, offer for sale and sell the same as aforesaid."

To this information a demurrer was filed on the ground that the information did not state facts sufficient to constitute a public offense and a motion to quash on the ground that the law on which the information was predicated was unconstitutional. The court made an order sustaining the demurrer and granting the motion to quash, and from such order the state has taken this appeal.

There are two questions for us to consider, the first being whether it was necessary to show in the information that the defendant was not within certain statutory exceptions to section 1980, Revised Code 1928. This section reads as follows:

"§ 1980. Peddlers and traveling merchants; application; violations; penalty. Every traveling merchant, peddler and itinerant vendor shall pay a license tax in advance to the sheriff in every county in which he carries on business as follows: [Fixing the rate of tax for various classes of peddlers running from $25.00 to $200.00 per annum.] This section shall not apply to or include any regularly established merchant who owns a store and is engaged in the business of selling merchandise nor to any person selling agricultural, farm or nursery products, nor to any incorporated city or town, which by its charter or ordinance is vested with power or authority to license traveling merchants, hawkers, peddlers or itinerant vendors....

"All taxes collected hereunder shall be paid by the sheriff into the state highway fund."

It will be noticed that there are three exceptions set forth in the section, and it was urged by defendant, and his view sustained by the court, that it was necessary for the state in the information to negative the exceptions contained in the section. We think the general rule applying to this situation is well stated as follows:

"It is necessary to negative an exception contained in a statute defining an offense where it forms a portion of the description of the offense, so that the ingredients thereof cannot be accurately and definitely stated if the exception is omitted. Where, however, the exception or proviso is separable from the description and is not an ingredient thereof, it need not be noticed in the accusation, being a matter of defense. As the rule is frequently stated, an exception in the enacting clause must be pleaded, but it is not necessary to negative an exception in a later clause or section of the statute or in a separate statute...." 31 C.J. 720, § 269; Richardson v. State, 23 Ariz. 98, 201 P. 845.

Upon an examination of section 1980, supra, and the original statute, of which it is merely a consolidated restatement being chapter 173, Session Laws 1921, it appears to us that the exceptions to the statute are entirely separable from that portion thereof which contains the description of the offense, and that under the rule above stated the exceptions need not be pleaded in the information but are a matter of defense. Smith v. People, 51 Colo. 270, 278, 117 P. 612, 36 L.R.A. (N.S.) 158; Commonwealth v. Jennings, 121 Mass. 47, 23 Am. Rep. 249; Wilson v. state, 33 Ark. 557, 34 Am. Rep. 52. We are therefore of the opinion that the trial court erred in...