Opinion
8 Div. 236.
August 4, 1931. Rehearing Denied October 6, 1931.
Appeal from the County Court, Morgan County; W. T. Lowe, Judge.
George W. Young was convicted of operating a business without a license, and he appeals.
Reversed and remanded.
Eyster Eyster, of Decatur, for appellant.
The affidavit was defective in failing to allege, that the Southern State Metal Works was engaged in business as tin shops; or so engaged in a town or city of 10,000 or more inhabitants, or a less population; that said company was liable for payment of a license or privilege tax; that defendant was an agent and acting as such within the line and scope of his employment and in the course of business of said company, which was liable to the payment of a license or privilege tax. It also failed to charge defendant with a violation of law. Revenue Laws, Ala. 1929, §§ 334, 342, Schedule 142.
Thomas E. Knight, Jr., Atty. Gen., and Thomas S. Lawson, Asst. Atty. Gen., for the State.
The affidavit sufficiently charges the offense. Rev. Laws, Ala. 1929, § 334, p. 201; Schedule 142, p. 296, § 322, p. 282; Gen. Acts, 1919, p. 282. The court takes judicial notice of the fact that Decatur is a city of 10,000 inhabitants. Hammonds v. City of Tuscaloosa, 21 Ala. App. 286, 107 So. 786. It was not necessary to allege that the corporation was liable for the license or tax. This is defensive matter. Dentler v. State, 112 Ala. 70, 20 So. 592; Isbell v. State, 17 Ala. App. 465, 86 So 169.
This is a prosecution begun by affidavit, which affidavit is, in words and figures, as follows:
"State of Alabama, Morgan County.
"In the Morgan County Court.
"Before me, W. T. Lowe, as Judge of the Morgan County Court, personally appears H. R. Summer who, after being duly sworn, says that within twelve months before the making of this affidavit, and in Morgan County, Alabama, George W. Young did act as agent for the Southern Sheet Metal Works, a corporation, engaged in business as a tin ship without the privilege license being paid, contrary to law and against the peace and dignity of the State of Alabama. [Italics ours.]
"This 17 day of January, 1927.
"H. R. Summer.
"Sworn to and subscribed before me, this 17 day of Jan. 1927.
"W. T. Lowe."
One of the grounds of the demurrer interposed to this affidavit was that it "fails to charge said defendant with any violation of the law."
We hold this ground of the demurrer should have been sustained.
Our holding, while it may appear technical, is yet inescapable.
We must take the record as it is submitted to us, and know of no rule which authorizes us, in reviewing the trial court's action on appellant's demurrer, to hold that the language of the affidavit is any different from that which, literally, appears in the transcript.
For the error in overruling appellant's demurrer to the affidavit, the judgment appealed from is reversed, and the cause remanded.
Reversed and remanded.