Opinion
4 Div. 101.
January 22, 1935.
Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.
The Great Atlantic Pacific Tea Company was indicted for engaging in and carrying on the business of displaying, offering for sale, or selling fruit without a license, and, having been convicted, the company appeals.
Reversed and rendered.
J. L. Drennen, of Birmingham, for appellant.
The indictment is fatally defective in that it fails to charge defendant specifically with carrying on the business of operating a fruit stand; there being no license provided for carrying on the business of displaying, offering for sale, or selling, fruit. Carter v. State, 44 Ala. 29; Perkins v. State, 50 Ala. 154. The indictment will not support a judgment. Bay City Lumber Co. v. McIntyre Lumber Export Co., 1 Ala. App. 607, 55 So. 1033; Kirkland v. Pilcher, 174 Ala. 170, 57 So. 46; Central of Ga. R. Co. v. Carlock, 196 Ala. 659, 72 So. 261; L. N. R. Co. v. Duncan, 137 Ala. 446, 34 So. 988; Rhodes v. Sewell, 21 Ala. App. 441, 109 So. 179.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
Defendant was indicted by the grand jury and charged that "It engaged in or carried on the business of displaying, offering for sale, or selling fruit, in a city of less than 10,000 inhabitants without having first obtained a license therefor and contrary to law." The solicitor in drawing the indictment evidently had in mind schedule 76 of the Revenue Code (Acts 1919, p. 395, § 361, schedule 55), which provides a license for "Each fruit stand in cities or towns of over ten thousand inhabitants, ten dollars; in other places, five dollars." Hill Grocery Co. v. State, post, p. 302, 159 So. 269.
It is not a violation of the revenue law to display, offer for sale, or to sell fruit in towns and cities of this state. The indictment charges no offense known to the law.
The judgment is reversed, and a judgment will here be entered discharging the defendant.
Reversed and rendered.