Opinion
Opinion filed November 18, 1933.
1. LICENSES.
In prosecution for engaging in retailing tobacco without license, where no specific sale was charged, evidence that unlicensed defendant was operating restaurant, with cigarettes and other manufactured tobacco products displayed in showcase, established prima-facie case (Code 1932, secs. 1226, 1240).
2. LICENSES.
In prosecution for retailing tobacco without license, burden held on defendant to establish that he had been operating under ten-day temporary permit (Code 1932, secs. 1226, 1231, 1240).
3. LICENSES.
Code section authorizing "destitute" person to sell taxable articles without paying tax held inapplicable to operator of mercantile establishment retailing tobacco without license (Code 1932, secs. 1226, 1240, 1250).
FROM POLK.Appeal from the Criminal Court of Polk County. — HON. PAT QUINN, Judge.
CHAS.C. GUINN, for W.R. Love.
W.F. BARRY, JR., Assistant Attorney-General, for the State.
The plaintiff in error has appealed from a conviction on a charge that he "unlawfully did engage in the sale" of tobacco "at retail, without securing from the Commissioner of Finance and Taxation a license to engage in said retail sale," etc. This offense is defined and made a misdemeanor by the Code of 1932, sections 1226, 1240.
Testimony of witnesses for the state that the plaintiff in error was operating a restaurant, open for business, with cigarettes and other manufactured tobacco displayed in a showcase, without having obtained a license as required by said Code sections, justified the inference of fact by the jury that plaintiff in error was engaged in the business of selling such merchandise, and thus made a prima facie case of guilt. It was not necessary to prove a specific sale, since none was charged in the indictment as the basis of the prosecution.
No evidence was offered by the plaintiff in error; and, if he was operating under a ten-day temporary permit, as authorized in Code, section 1231, we think the burden was on him to establish the fact. There is no evidence that he had been operating the restaurant only ten days at the time of his arrest.
Code, section 1250, authorizing "destitute" persons to "sell taxable articles without paying a tax," is obviously not applicable to the operator of a mercantile establishment. And see Forrest v. State, 154 Tenn. 13, 285 S.W. 589.
The judgment will be affirmed.