This conviction was had upon an indictment, the charging portion of which is as follows, to wit: “ C. T. Rather and M. T. Collins, a mercantile firm, late of said county, on the first day of December, in the year of Our Lord, nighteen hundred and eighty-two, with force and arms, in the ! iounty aforesaid, did then and there, wilfully, unlawfully sell. Dedicated bitters to Hat. Frank, contrary to law, and without: obtaining license therefor; against the peace and dignity of the State.” Defendant excepted to the sufficiency of the indictment, upon several grounds. The exceptions were overruled. Trial and conviction ensued, and the punishment was assessed at a fine of three hundred dollars.
While it does not appear from the allegations in the indictment under what penal statute the pleader was proceeding, still we gather from the evidence and the charge of the court that the supposed offense for which defendant was being prosecuted is the one declared in Article 110 of the Penal Code, which reads, as follows: “Any person who shall pursue or follow any occupation, calling or profession, without first obtaining a license therefor, shall be fined in any sum not less than the amount of taxes so due, and not more than double that sum.”
That the indictment is fatally insufficient to charge the offense denounced in the Article quoted, there can be no question. It does not allege that the defendant pursued any taxable occupa*558'tian without obtaining a license therefor. Such an allegation was necessary to a statement of the offense. It does not allege the amount of taxes due by the defendant for pursuing any occupation without license. It is the amount of taxes due that regulates the penalty for this offense, and it is absolutely essential that the indictment should specifically aver the same. (Spears v. The State, 8 Texas Ct. App., 467; Archer v. The State, 9 Texas Ct. App.. 78; Crews v. The State, 10 Texas Ct. App., 292; Sheffield v. The State, 14 Texas Ct. App., 238.)
Opinion delivered March 8, 1884.The judgment is reversed and the prosecution dismissed.
Reversed and dismissed.