A single violation of Tenn. Code § 5253 makes an offender liable only to the penalty prescribed, to-wit, a forfeiture of $ 10. Therefore, no criminal action can be predicated upon a single violation of the statute. Such single violation is not indictable or presentable as a misdemeanor.
Defendant was charged by a presentment with engaging in his usual and ordinary vocation on a Sunday. The presentment alleged that defendant operated his poolroom on a particular Sunday. After a trial, defendant was convicted and sentenced to pay a fine. On appeal, the court reversed the conviction. The court noted that the common law offense of exercising a common vocation on Sunday was not committed until it was carried on to such an extent as to create a nuisance and that it was the continuation of such an act that made it a nuisance. Thus, the court ruled that the criminal action could not be maintained against defendant under Tenn. Code § 5253 (1932) or the common law and ordered that the presentment be quashed.
Can a criminal action be predicated upon the single act of the defendant?
No criminal action can be predicated upon an act, which is not made a crime either by statute or common law. Every indictment or presentment “must contain a complete description of such facts and circumstances as will constitute the crime." A presentment, therefore, which intends to charge the common law offense of exercising a common vocation of life on Sunday must allege that the act was committed not only on a particular Sunday but on a succession of Sundays. Where the act becomes a common law offense because it has become a nuisance "the averment to the common nuisance is essential to the validity of such indictment."