delivered the opinion of the Court:
This action was commenced before a justice of the peace, under the act of 1835, which imposes a penalty of fifty dollars for vending clocks without license.
This act does not apply to sales, &c. by citizens, who are not obviously pedlers in such traffic. It does not appear from the bill of exceptions, (which professes to contain all the testimony,) that the defendant was not a citizen, or that he was engaged in the traffic, sale, or line of clocks as a business.
The only evidence upon this point was, that the defendant had sold two clocks at the same time, but, in what character, or under what circumstances, does not appear. It may have been at public vendue of his property, or in the language of the statute, " in the common way of deal,” and, if so, there was no penalty incurred.
The only object of the law, was to require a license from those who made the traffic of clocks their regular occupation, in whole, or in part. It was not intended to prohibit citizens from acquiring and disposing of them like other articles of property, as might suit their convenience, in their occasional traffic and dealings with each other. The isolated fact of the sale of two clocks, will not justify the inference, that the defendant was a regular pedler, or dealer in clocks, in violation of the law. In penal prosecutions, the presumption of law is in favor of the innocence of the accused. To convict the defendant, therefore, in this case, it was necessary to prove not only a sale of clocks, but such an one as the law forbids ; not a sale by a citizen in the common way of deal, but a sale by one obviously a pedler in such traffic. No such evidence appears to have been given. The judgment of the Court below must therefore be reversed.
Some other errors are assigned, but as the insufficiency of the testimony disposes of the whole case, it is unnecessary to notice them.
Judgment reversed.
Mote. See note of decisions in relation to construction of statutes, at the end of the case of Mason v. Finch, Ante 225.