¶1The prosecution is under § 111 of the Revenue Act of December 81, 1868. It enacts that any person who “ shall be engaged in or carry on any business,” for which license is required, without having obtained one, &c., shall be deemed guilty of a misdemeanor, &c.
¶2The words “ shall be engaged " is the passive form of the verb, and is equivalent to saying, in the active form of it, shall engage. In the same passive form, the indictment responsively affirms that defendant “ was engaged in the business,” &c. This is correct and sufficient. See Eubanks v. The State, 17 Ala. 181.
¶3According to §§ 4114, 4115, and 4121, of the Revised Code, and Form No. 30, p. 811, in the kindred offence of retailing without license, the indictment is not obnoxious to the other causes assigned, of demurrer.
¶4It appears by the bill of exceptions that while the cause was before the court, the judge declined to decide the questions made by the demurrer “ until the evidence was closed, against the objection and exception of the defendant.” This was a departure from correct practice, and ought not to be indulged in. But as the judgment entry shows that defendant came “in person and by counsel, and for plea says he is not guilty, and also demurred to the indictment,” &c., it appears that defendant himself did not observe the right order of filing a demurrer before he filed his plea. It appears, also, by the record, besides that, the demurrer was overruled, that defendant had the benefit of the same points sought to be made by it, on a motion in arrest of judgment, and so sustained no injury.
¶5The judgment of the court below is affirmed.