Talbutt v. State

• Decision Date: 16 March 1898
• Citation: 44 S.W. 1091
• Parties: TALBUTT v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W. 1091

TALBUTT v. STATE.

Court of Criminal Appeals of Texas.

March 16, 1898.

Appeal from Grayson county court; J. H. Wood, Judge.

J. H. Talbutt was convicted in the county court of pursuing the occupation of a canvasser for the sale of lightning rods without paying the tax, and appeals. Reversed.

Hazlewood & Smith, for appellant. W. W. Walling and Mann Trice, for the State.

DAVIDSON, J.

The offense was committed in January, 1898. The punishment was assessed at a fine of $150. The evidence shows that the appellant was representing Cole Bros., who resided in Greencastle, Putnam county, Ind., and who carried on their business at that place. Cole Bros. have not, and never have had, a place of business within the limits of the state of Texas, and appellant is their agent and representative soliciting orders for the placing of lightning rods on houses in Grayson county, and when the orders are secured they are sent to the place of business of Cole Bros. at Greencastle, Ind. Lightning rods were then made in obedience to said orders, shipped to Texas, and, when required to do so, appellant assisted in placing these lightning rods at the places desired by the purchasers. For this he collected the money for the sale, or took notes, as the case might be. Without going into any discussion of the matter further than heretofore, we hold that the conviction was erroneous. This seems, under the decisions of the supreme court of the United States, to be a tax upon interstate commerce. See Ex parte Holman, 36 Tex. Cr. R. 255, 36 S. W. 441; Brennan v. City of Titusville, 153 U. S. 289, 14 Sup. Ct. 829; Asher v. Texas, 128 U. S. 129; 8 Sup. Ct. 1; Corson v. Maryland, 120 U. S. 502, 7 Sup. Ct. 655; Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592. The judgment is reversed, and the cause remanded.