Mistrot v. State (162 S.W. 833, 1914)

HARPER, J.

Appellant was prosecuted and convicted for failure to pay the tax levied and .authorized to be levied under section 1 of article 7355 of the Revised Civil Statutes. Said section reads as follows: “From every merchant who may remove from place to place and offer for sale ‘bankrupt stocks’ of goods, or advertising ‘fire sales,’ or ‘water and fire damaged stocks for sale,’ for a limited period of time, there shall be collected one hundred dollars per month for the first month, or less than a month, for each and every place where such business is located; and for each additional month that such sales are continued, at any given place, said merchant shall pay an additional sum of twenty dollars; provided, that where they remain for six months in one place, in addition to the one hundred dollars charged for the first month, they shall pay an additional sum of ten dollars per month; and provided, further, that, if they remain in one place for the period of twelve months, they shall be required to pay, in addition to the one hundred dollars for the first month, the sum fixed in the preceding paragraph, according to class and amount of goods sold in one year.”

The complaint and information is attacked on several grounds. One ground is that information does not charge the offense in specific enough terms to show what tax, if any, is due under this law, in that it does not allege how long he had been located in Baylor county. It will be noted that for the first month a merchant of that class is required to pay $100 per month, and for each additional month he shall continue in that business $20 per month, provided that, if he remains for six months or longer in one place, he shall only be required to pay $10 for each month after the first month. It is thus seen, for the five months folio wing the first month, whether he shall be required to pay $20 per month or only $10 per month is made contingent on whether or not he shall remain in business in the same place for six months or longer; and, if they remain in one place twelve months or longer, then, in addition to the $100 paid for the first month, they shall be required to pay for the additional time only such sum as theretofore levied on merchants of the same class. Thus it is seen that, while $100 is the fixed amount to be paid for the first month, the amount to be paid for any subsequent month can only be determined by the lapse of time. If he remains less than six months, the amount is $20; if he remains longer than six months, but no more than twelve months, the tax is $10 per month, while, if he remains longer than twelve months, then the tax after the first month is the same as that levied upon the ordinary retail merchant, and, which tax having been repealed, we suppose a proper construction of this statute would be that, if appellant should remain longer than twelve months, he would owe no tax after the first month. It was certainly the intent and purpose to tax such person the same as other merchants after the first month, if they remained in business twelve months or longer in one place, and as it would be necessary to prove that he had not remained in the place twelve months, or did not intend to do so, some allegation in the indictment ought to have charged the time appellant had been engaged in the character of business taxed by the statute in that place, so that it could be determined what amount, if any amount, was due under the law.

Again, the information charges in one place that Mistrot Bros, and- Mistrot engaged in the business, and in another charges that G. L. Mistrot, one of the firm, did engage in the business. From the allegations, one could not determine whether O. L. Mis-trot was liable for the tax, or Mistrot Bros, was liable for the tax. And in alleging that the firm was composed of O. L. Mistrot and -Mistrot there is no allegation why the name of-Mistrot is not given. If it was unknown, it should have so been stated. Article 257, subd. 1, Code Or. Proc. 1895, provides that the name of the accused, if known, must be stated, and, if not known, some reasonably definite description of him given. In the case of Mrs. Beaumont v. City of Dallas, 34 Tex. Cr. R. 68, 29 S. W. 157, it was held that to name the accused as Mrs. Beaumont was insufficient. See, also, article 938 of the Procedure.

The complaint and information in this ease being so vague and indefinite, it will be necessary to reverse and dismiss the case; therefore we do not deem it necessary to discuss the other questions raised.

The judgment is reversed, and prosecution ordered dismissed.