
    *Cousins v. The Commonwealth.
    April Term, 1870, Richmond.
    Statute—Assessment of Taxes—Information—What It Must Allege.—An information under the 1st section of the act of February 13th, 1866, Sess. Acts 1865-66, p. 38, ch. 8, in relation to the assessment of taxes on licenses, must allege that the sale was “for profit or on commission, or for other compensation,” or it will be fatally defective on demurrer, or on motion in arrest of judg-ment.
    
    At the May term 1867 of the Circuit court of Franklin county, the attorney for the Commonwealth filed an information founded on a presentment of the grand jury, against Wm. JB. Whitesides, John Cousins and Tee Sammons, “that they, on the 26th day of August 1866, at Bethel church in the said county’ of Franklin, did sell goods, wares and merchandise without having obtained the license required by law therefor, against the peace,” &c.
    The case was sent to the County court of Franklin for trial; and there Cousins appeared, and demurred to the information; but the court overruled the demurrer. He then pleaded not guilty, on which issue was joined; and upon the trial the jury found the defendant guilty, and assessed his fine at five hundred dollars; and the court rendered a judgment thereon.
    On the trial, several questions were raised by the defendant; but they were not passed upon by this court; and therefore need not be stated. He also moved the court to arrest the judgment, because the information does not charge that the defendant sold the goods, wares and merchandise without having obtained a license to xsell the same as a merchant. But the court overruled the motion; and the defendant excepted.
    The defendant carried the case to the Circuit court, where the judgment was affirmed. And he then obtained a writ of error to this court.
    The cause was argued on all the points made in the record, but this court considered only the objection to the information. •
    Ould & Carrington, for the appellant:
    1. The information charges that the said Cousins did, “on the 26th day of August 1866, at Bethel church, in the said county of Franklin, sell goods, wares and merchandise, without first having obtained the license required by law therefor. ’ ’
    The law under which the information was framed, was passed on the 13th of February 1866. The information charges an offence against the 1st section of that law, which requires a merchant’s license to sell personal property. The language of that section is as follows: ‘ ‘No person shall, without a license authorized by law, sell, contract to sell, or offer to sell, for himself or for others, for profit or on commission, or for other compensation, any personal property by deed or other writing, by delivery, sample, card, or other representation, including as such coal oil, salt and copperas water-, except as follows, to wit:” and then follows certain exceptions of persons and merchandise in the same section. See Acts of 1865-’66, page 32. The license required by this section is familiarly known as “a merchant's license,” because of its distinguishing words, “for profit or on commission, or for other compensation.” The information leaves out these essential words, and simply charges the defendant with selling goods, wares and merchandise without a license. A person might sell goods, wares and merchandise, not even within the excepted cases, and yet not offend “against this statute. If a lawyer were to sell to one of his brethren a volume of Reports at the price which he gave for it, it would hardly be an offence within the meaning of the act, but yet it would be covered by the language of the information. In Hampton’s case, 3 Gratt. 590, it was held, “that indictments upon statutes must state all the circumstances which constitute the definition of the offence in the act, so as to bring the defendant precisely within it.” In that case the information left out the words, “otherwise than is in the statute expressly provided,” the act itself making the sale of ardent spirits penal, otherwise than is in the statute expressly provided. An essential ingredient of the offence, as it is described in the statute, is omitted in the information, to wit: that the sale was “for profit or on commission, or for other compensation.” It is such a fact in the case that makes it a merchant’s transaction, and demands a license. These words are certainly as essential in defining the offence, as the omitted words in Hampton’s case. Besides, the rule is very stringent, that a statutory offence should be described in the words of the statute. It is dangerous even to resort to circumlocution, where the words used are equivalent. But everywhere the rule is invariable, that everything which is named in the statute, as a constituent of the offence, must be expressly charged. In Howel’s case, S Gratt. 664, the court says: “In indictments for statutorjr offences, the language of the statute defining the offence should be strictly followed.”
    2. In Hill’s case, 5 Gratt. 682, the Court of Appeals held, that “where exceptions are in the enacting part of a law, it must be charged that the defendant is not within any of them,” but that a defendant must claim for himself the benefit of a ‘ ‘proviso. ’ ’ The same doctrine was substantially held in Hampton’s case. In the enacting part of the statute on which this information was founded, there are specified exceptions as to ^persons and things. Yet it is not charged that the defendant is not within any of them. The doctrine of Hill’s and Hampton’s cases is sustained in every State.
    The Attorney General, for the Commonwealth :
    In Hill’s case, 5 Gratt. 682, it was held that an indictment for selling by retail, rum, brandy, &c., without a license, was good under the 3rd section of the act of 1839-40, Sess. Acts, ch. 2, p. 5, though it did not negative the exceptions contained in the proviso in the 4th section. In the Act of 1865-66, p. 32, it is provided that no person shall, without a license authorized by law, sell, contract to sell, or offer to sell, for himself or for others, for profit or on commission, or for other compensation, any personal property, &c. The information charges that Cousins sold goods, &c., at a particular place on a certain day, without having a license; and this implies that he sold them for compensation. If he did not sell for compensation, it was for him to prove it.
    There are two offences created by the statute; one the selling as a merchant; the other selling as a peddler, without license. We charge that the appellant sold as a merchant. The information charges but one sale at one place. ''
    The court will not quash an information or indictment on motion, unless it is clear the court has not jurisdiction to try it. Ledge’s case, 6 Gratt. 699.
    
      
      Indictment under Statute.—In Com. v. Hampton, 3 Gratt. 590, the court said: “It is a general rule, that indictments upon statutes must state all the circumstances which constitute the definition of the offence in tbe act, so as to bring- tbe defendant precisely witbin it.”
      In Boyd v. Com., 77 Va. 54, tbe court said: “It is a familiar and elementary principle of criminal pleading tbat an indictment upon a statute must state all tbe circumstances wbicb constitute tbe definition of tbe offence in tbe act, so as to bring the defendant precisely witbin it. If tbe indictment may be true, and still tbe accused may not be guilty of tbe offence described in the statute, tbe indictment is insufficient. So, where tbe definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that tbe indictment shall charge tbe offence in tbe same generic terms as in a definition; but it must state the species—it must descend to particulars.”
      In many cases, indictments brought under authority of statutes have been pronounced fatally defective because some averment made essential by tbe statute has been omitted. See Peas’s Case, 2 Gratt. 631: Young’s Case, 15 Gratt. 664; Hampton’s Case, 3 Gratt. 590; Howel's Case, 5 Gratt. 664; Old’s Case, 18 Gratt. 915; Morgan's Case, 26 Gratt. 992; Bailey v. Com.. 78 Va. 19.
      See Taylor v. Com., 20 Gratt. 825, for a case where tbe indictment was held not fatally defective on account of an immaterial omission.
      In Dull v. Com., 25 Gratt. 974, tbe court, citing tbe principal case, said: '‘It is certainly safer and better, in a prosecution for a statutory offence, to describe tbe offence in tbe indictment in tbe very language in wbicb it is described in tbe statute.” See also, State v. Riffle, 10 W. Va. 794; Com. v. Young, 15 Gratt. 664-666.
      An indictment, wbicb charges an offence in tbe language of tbe statute, will not bebeldbad because it contains surplus matter. State v. Hall, 26 W. Va. 236.
    
    
      
       See tbe opinion of tbe court for tbe act.
    
   MONCURE, P.,

delivered the opinion of the court:

This is a writ of error to a judgment of the Circuit court of Eranklin county, affirming a judgment of the County court of that county, whereby the Commonwealth recovered against the plaintiff in error a fine of five hundred dollars and costs of the prosecution. The information on which the judgment was obtained was against the plaintiff and two others, and charged i *that they, ‘ ‘on the 26th day of August 1866, at Bethel church in the said county of Eranklin, did sell goods, wares and merchandise, without having first obtained the license required.by law therefor, against the peace and dignity of the Commonwealth of Virginia.” The information seems to have been founded on the first section of the act passed Eebruary 13, 1866, Sess. Acts 1865-6, p. 32, chap. 2, which is in these words: “No person shall, without a license authorized by law, sell, contract to sell or offer to sell, for himself or for others, for profit or on commission, or for other compensation, any personal property by deed or other writing, by delivery, sample, card or other representation, including as such, coal oil, salt and copperas water, except as follows, to wit:” and then follow the exceptions. There was a demurrer to the information, which was overruled. And there was a motion in arrest of judgment, which was also overruled. Several questions arose in the case, which are set forth in the assignment of errors in the petition, but it is only necessary to notice one of them, which arises both on the demurrer and on the motion in arrest of judgment. That question is, whether the information is fatally defective, in not charging the sale to have been made “for profit or on commission, or for other compensation,” in the words of the statute?

We think these are material words in the statutory description of the offence. The statute does not prohibit the mere sale of personal property without a license, but such a sale “for profit or on commission, or for other compensation.” It is necessary, therefore, in an information or indictment on this statute to charge that the sale was for profit, or on commission, or for other compensation, in order to show that the statute has been violated. This is according to a well settled principle of law in regard to pleading in criminal cases, which has been repeatedly and recently recognized by *this court. Commonwealth v. Peas, 4 Leigh 692, 2 Gratt. 629; Same v. Hampton, 3 Gratt. 590; Howel v. The Commonwealth, 5 Id. 664; Commonwealth v. Young, 15 Id. 664; Old v. The Commonwealth, 18 Id. 915.

We therefore think that the information is fatally defective, for the reason aforesaid; that both the demurrer to the information and the motion in arrest of judgment ought to have been sustained; and that the judgments, both of the Circuit and County courts, ought to be reversed.

The judgment was as follows:

It seems to the court, for reasons stated in writing and filed with the record, that there is a fatal defect in the information in this case, which was a sufficient ground for sustaining the demurrer to the said information, and the motion in arrest of judgment; and that the judgments, both of said Circuit court and of the said County court are erroneous. Therefore, it is considered, that .the said judgment of the said Circuit court be reversed and annulled. And this court proceeding to enter such judgment as the said Circuit court ought to have entered, it is further considered that the said judgment of the said County court be also reversed and annulled, and that the said plaintiff be discharged from further prosecution on the said information, and go thereof without day. Which is ordered to be certified to the said Circuit court.

Judgment reversed.  