State v. Sheppard

• Decision Date: 02 October 1906
• Parties: STATE v. SHEPPARD.
• Court: North Carolina Supreme Court

55 S.E. 146

142 N.C. 586

STATE v. SHEPPARD.

Supreme Court of North Carolina

October 2, 1906

Appeal from Superior Court, Nash County; E. B. Jones, Judge.

A. J Sheppard was convicted of unlawfully carrying on the business of selling lightning rods without first having obtained a license and paid the tax required by law, and he appeals. Affirmed.

An indictment charged defendant in the first count with unlawfully carrying on the business of putting up lightning rods in N. county without having obtained a license and paid the tax as required by law, and in a second count with unlawfully carrying on the business of selling lightning rods under like circumstances. There was ample evidence to support a general verdict of conviction on the first count, on which the verdict was rendered. Held, that such verdict was sufficient to sustain the judgment, though the evidence showed that the sales referred to in the second count constituted interstate commerce, and were therefore not within the state laws.

The defendant was convicted under the following bill of indictment:

"The jurors for the state upon their oath present: That A. J Sheppard, late of the county of Nash, on the 30th day of April, 1906, and for 12 months prior thereto, with force and arms, at and in the county aforesaid, was then and there unlawfully and willfully engaged in carrying on the business of putting up lightning rods without first having paid the license tax and obtained the license required by law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. And the jurors upon their oath aforesaid do further present: That the said A. J. Sheppard afterwards, to wit on the day and year aforesaid, with force and arms, at and in the county aforesaid, was then and there unlawfully engaged in carrying on the business of selling lightning rods without first having paid the license tax and obtained the license required by law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. Daniels, Solicitor.

A true bill. Miles Bobbitt, Foreman of the Grand Jury."

There was evidence on the part of the state tending to show that within two years prior to finding the bill of indictment the defendant had engaged in the business of putting up lightning rods at and in said county of Nash without having obtained a license or paid the license tax as required by law. The evidence for defendant was as follows: A. J. Sheppard, the defendant, testified: "I am agent for Cole Bros., of St Louis, Mo., with factory in Greencastle, Ind. I only solicit orders for future delivery. I carry no rods for sale or delivery, but only samples for exhibition, and deliver none except such as have been sold before they left the factory. This is the contract under which I made sale of rods to Mr Yarborough. (Here contract introduced and read in evidence, and attached as a part of this case on appeal. Contract has not been filed. T. A. Sills, C. S. C.) I did business in no other way than that specified in this contract with Yarborough. The delivery is not complete until the rods are put up. The sale and delivery of the rods under the contract includes the putting up of rods whenever the purchaser requests, for which no extra charge was to be made." Cross-examination. "I am in the lightning rod business as agent. I have put up rods on half dozen houses or more. I was in diferent parts of the county. I got the rods from Cole Bros. that I put on Mr. Yarborough's house. They were delivered to me in the...