
    *The State vs. W. H. Belcher.
    Books were sent up from Charleston to Columbia, and consigned to Poloek, Solomon & Co., merchants and auctioneers in Columbia, by whom the freight from Charleston was paid, and sold by them, and the defendant, at auction and at private sale, for the use and benefit of the defendant: Held, not to come within the purview of the Act of Assembly for hawking and pedling.
    A hawker and pedlar is one who travels from town to town, or from plantation to plantation, carrying to sell, or exposing to sale, goods, wares, and merchandize ; but a single shipment of goods, regularly consigned to Poloek, Solomon & Co., by the defendant, and sold, by himself or them, for his use and benefit, is not hawking and pedling within the meaning of the Act.
    The defendant a non-resident of this State, did sell goods, wares, and merchandize in a house in the town of Columbia, and is therefore, when properly indicted and convicted, liable to the penalties of the Act of Assembly of 1835 — page 6. (Per O’Neall, J.
    
      Before Evans, J., at Richland, Fall Term, 1840.
    The defendant was indicted, under the Act of Assembly, for hawking and pedling in books. The evidence in substance was that the defendant was a transient person. The books were sent up from Charleston, consigned to Polock, Solomon & Co., merchants and auctioneers in Columbia, by whom the freight from Charleston was paid. A short time before the 28th November, 1838, the defendant came to Columbia, and arrangements were made for the sale of the books at night, by auction, and in the day by private sale. A room was hired for the purpose. Hand bills were printed, giving notice of the auction by Polock & Solomon. The sales were opened by Polock, but he gave place as crier to the defendant, who was very expert as an auctioneer. The account of sales was kept by a clerk of Polock & Solomon. In the day time, the defendant sold books at private sale, but one of Polock & Solomon’s clerks usually attended in the store. The sales continued three days and nights. The books unsold were subsequently packed up and sent to Charleston. Those that were remaining on hand, if any, on the first of January, were returned to the tax collector as part of the stock in trade of Polock, Solomon & Co. The money for the books sold, was sometimes to them and sometimes to the defendant. These facts were proved by Polock and Levy, two of the partners ; they also produced their books, ^showing an aggregate of sales at auction, of and $350, at private sale. From these amounts was deducted, the freight, house rent, 5 per cent, commissions on the sales at auction, and 1 per cent, on the private sales. And for the balance they said they had accounted to the defendant.
    It was proved by Cunningham that he purchased books and stationery to an amount exceeding $100, part at auction and part at private sale, and produced the receipted bill signed by Belcher, to whom he paid the money. He also said Belcher told him he had sold to the amount of $6000, nearly half of which was at private sale.
    I defined a hawker and pedlar to be an itinerant trader who carries goods, &c., through the streets, from town to town, and from place to place. It was the itinerancy of his employment which gave character to it, and not the mode in which he carried his goods, or the place where his wares were exposed to sale. I charged the jury as follows, viz : 1. That it was a usual and common course of business to consign goods to an auctioneer or agent, to be sold for and on account of the owner. Such sales, if bona fide, were the sales of the agent; and it could and did make no difference whether the owner was present assisting at the sales or not. If, therefore, the account of these sales, as given by the auctioneers, was the true one, then I thought the defendant ought to be acquitted. 2d. But if the employment of Polock, Solomon & Co., was merely pretensive, and Belcher was the vendor of the goods under color of their name ; or if, over and above the amount sold by them, he effected other sales himself, independent of their agency, then the jury might convict him.
    The defendant was convicted.
    GROUNDS OF APPEAL.
    1. Because there was no evidence to sustain the charge laid in the indictment.
    
      2. There was no proof that defendant was a hawker and pedlar within the meaning of the Act of 1835, increasing the price of license, under which he was indicted.
    3. There was uncontroverted evidence that the goods were regularly consigned to Polock, Solomon & Co.; that they made the sales, and received their usual commissions of* 5 per cent, on auction sales and 1 per cent on private sales.
    4. The jury probably misapprehended the extent of the charge by the Court, that if defendant employed Polock, Solomon & Co. with a view to invade the law against hawkers and pedlars, he would be liable.
    5. Because the Court charged that if Belcher sold more goods than he paid commissions for to Polock, he would be liable under the Act.
   Curia, per

O’Neall, J.

This case, it seems to me, turns upon the question, whether the defendant is, oris not, a hawker and pedlar, within the Acts of this State ? This question will be answered by ascertaining, first, from our Acts, who is a hawker and pedlar ; and secondly, whether, from the facts proved, that character is fixed upon the defendant ?

To answer the first question, we are obliged to go back to the old Act of 1737, P. L., 152. Its preamble and enactment both point to “persons' who travel from town to town, from one plantation to another, by land or by water, carrying to sell or exposing to sale, any rum, sugar, or other goods, wares or merchandizes,” as those designated by the general terms, “ Hawkers and Pedlars.” All the subsequent Acts, (Act of 1797, 2 Faust, 151; Acts of 1825, p. 60; Acts of 1831, p. 40; Acts of 1835, p. 45,) speak of “ Hawkers and pedlars,” as known legal terms, and do not extend their meaning. Taking then the true meaning to be that pointed out by the Act of 1737, it is impossible that the defendant, in any point of view, can be regarded as a “ Hawker and Pedlar.” He is not one who travels from town to town, or from one plantation to another, carrying to sell, or exposing to sale, goods, wares and merchandizes. This is a single shipment of goods regularly consigned to Polock, Solomon & Co., and by them, or by himself, sold at auction or private sale, for his use. This is any thing else than hawking and pedling. It is just such a sale of goods as is constantly effected in every city in the union; and, I presume, that it never entered into the head of any one that such a sale was an act of hawking and pedling. In construing a highly penal statute, we should be bound to give it such a construction as would prevent persons not clearly embraced by its words from being held amenable to its provisions. If the statute did not define hawkers and pedlars, *we should then have to ascertain what was the usual popular meaning of those words. That would give the definition given by the Judge below, and which is in substance the same by the Act. Taking it, and defining a hawker and pedlar to be “ an itinerant trader who carries goods, &c., through the streets, from town to town, and from place to place,” no one, it seems to me, could suppose that any thing short of a sale of goods by the retail in this itinerant way, would constitute one a hawker and pedlar. It is, however, unnecessary to pursue this reasoning any further, as the 11th section of the Act to raise supplies for the year 1835, (Acts of ’35 p. 6,) most plainly provides for the case of the defendant, and he canuot, therefore, be held liable to the greater penalties of the Acts against hawking and pedling. It provides, “ If any transient person or persons, not resident in this State, shall at any time sell, or expose for sale, any goods, wares, or merchandize whatever, in any house, stall or public place, after the first day of January, in each year, such person shall make return, on oath, within ten days after commencing to sell as aforesaid, of the whole amount of the stock in trade he may have possessed at that time, to the tax collector of the district or parish in which the said goods, wares, or merchandize shall have been or may be sold or exposed to sale. And if any person shall neglect or refuse to make such return as aforesaid, within the time prescribed above, he shall, on conviction thereof by indictment forfeit and pay the sum of not more than $1000 ; unless such person shall have paid for and procured a license according to the provisions of an Act entitled “An Act to increase the price of license to hawkers and pedlars ” The defendant, a person not resident in this State, did, within the words of this Act, sell goods, wares and merchandize in a house in the town of Columbia, and is therefore, when properly indicted and convicted, liable to its penalty. The exception with which the section closes in favor of hawkers and pedlars, does not make all persons not resident in this State, and selling or exposing for sale, any goods, wares, or merchandize, in any house stall, or public place, necessarily hawkers and pedlars. It was intended to save such hawkers and pedlars who had taken out the license, and might sell or expose to sale in a house, stall or public place, their merchandize, from being liable to this general provision.

W. F De Saussure, for the motion. Mr. Solicitor Edwards, contra.

*The motion for a new trial is granted.

Richardson, Earle, Butler, JJ., concurred: Evans, J., absent, but concurs : Gantt, J., absent. 
      
       6 Stat. 543. An.
      
     
      
       3 Stat. 487. An.
      
     
      
       5 Stat. 308. 6 Stat. 265. Id. 433. Id. 529. An.
      
     