The 105th section of the revenue law enacts, “ that it shall be unlawful for any person, firm, company or corporation to engage in, or carry on, any business or profession hereinafter mentioned, without first having paid for and taken out a license therefor, in the manner hereinafter provided.
Section 112 enacts, “ that the prices of licenses shall be as follows, to-wit ” : It then proceeds to state for what business or profession to engage in, or carry on, a license must be taken out, and among these, “ dealers in tobacco ” are named. It is not every one that sells tobacco that is required to take out a license, but only “ dealers in tobacco.”
The language of said section 105 is, “ shall engage in or carry on any business,” &c. We think the common sense interpretation of the words “ dealer in tobacco,” as *31here used, must mean, that it is the business of the party, his usual occupation, employment, vocation. Now, the facts agreed upon, and on which the trial was had, are, that the appellant was a general dry-goods merchant, and only had tobacco, in small quantities, and by way of variety, in his dry-goods business, sold it by the plug.
This being so, was he a dealer in tobacco, in the proper sense of this law ? To my apprehension, he was not. To be a dealer in tobacco, is to be a trader, a tobacco merchant.
Was the appellant such a merchant? The evidence says he was a general dry-goods merchant. The sale of tobacco was not the principal business or employment of the appellant ; it was not a principal, or even a considerable part of his business. He kept but little tobacco, and sold it in very small quantities — sold it by the plug only; no doubt, as much for the convenience of his customers in his business of a general dry-goods merchant, as for the profits he might derive from it. We think the good or bad faith of the party, should be considered in settling such questions.
If he was selling or trading in tobacco in bad faith, under cover of his other business, for the purpose of defrauding the revenue, then he should be convicted ; otherwise, not. It should mainly be considered a question of intention, which may be proved and arrived at, as we arrive at the intent of a party, where the intent to defraud enters into, and is necessary to constitute an offense; and this question of intent should be left to be determined by the jury, under the evidence, in the case, aided by proper instructions from the court. But such a charge as was given in this case, should never be given, except in plain, palpable cases, where there is no room left for doubt.
Let the judgment be reversed, and the cause be remanded for a new trial.