State v. Morrison

• Decision Date: 09 June 1900
• Court: North Carolina Supreme Court
• Parties: STATE. v. MORRISON.

126 N.C. 1123

36 S.E. 329

STATE.

v.MORRISON.

Supreme Court of North Carolina.

June 9, 1900.

LICENSES—SALE OF ORGANS AND PIANOS-PROSECUTIONS—BURDEN OF PROOF.

1. Under Laws 1899, c. 11, § 27, providing that every person or corporation engaged in the business of selling pianos and organs shall, before selling or offering to sell, pay to the sheriff or tax collector a tax of $10, and obtain a license which shall operate one year from its date, and all licenses shall he countersigned by the register of deeds, and shall not be valid unless so countersigned, the issuance of a license to a corporation having several agents and employés traveling and selling organs under that one license does not protect all of them, but authorizes sales only by the agent to whom the license is intrusted, and who has possession thereof.

2. Where, in a prosecution for selling a certain class of merchandise without a license, which the law provides the seller shall not sell without a license, it appears that a license was issued to defendant's employér, which would authorize sales by only that one of the employér's agents having possession of the license, the burden is on defendant to show that he has possession of the license, since knowledge of such fact lies peculiarly within his own knowledge.

Appeal from superior court, Lincoln county; Allen, Judge.

R. J. Morrison was indicted for engaging in the business of selling pianos and organs without a license. From a judgment in favor of defendant entered on a special verdict, the state appeals. Reversed.

D. W. Robinson and Brown Shepherd, for the State.

Jones & Tillett, for appellee.

CLARK, J. Section 27, c. 11, Laws 1899, requires that every person or corporation engaged "in the business of selling pianos or organs by sample, list or otherwise in this state, shall before selling or offering to sell any such instrument, pay to the sheriff or tax collector a tax of ten dollars on each brand and obtain a license which shall operate one year from its date, and all licenses provided for in this section shall be countersigned by the register of deeds and shall not be validunless so countersigned." The defendant is indicted for engaging in the business of selling pianos and organs in Lincoln county without license. It is found by the special verdict that E. M. Andrews & Co., a corporation having its principal place of business in Mecklenburg, upon payment of $10 obtained a license from the sheriff of that county under the above section; that it had several agents and employés traveling and selling organs by sample under that one license; that the defendant sold organs in Lincoln as one of the agents of aforesaid corporation; that no license had been issued to him. It is not found, nor, indeed, is it contended, that the defendant had in possession the license issued to said corporation. If he had, that was a matter of defense, to be shown in evidence, and found as a fact. State v. Smith, 117 N. C. 809, 23 S. E. 449; Cook v. Guirkin, 119 N. C. 13, 25 S. E. 715, and cases cited. The sole question, arising upon the special verdict is whether such license protects only the person or agent who has it in possession, or an unlimited number of agents. Among the rules for the construction of an act, if of doubtful meaning, is that the intent must govern, if it...