Adkins v. State
Decision Date | 08 November 1973 |
Citation | 287 So.2d 451,291 Ala. 695 |
Parties | In re David ADKINS v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. SC 345. |
Court | Alabama Supreme Court |
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State, petitioner.
Wade H. Baxley and Alto V. Lee, III, Dothan, for respondent.
The sole question in this case is whether the trial court erred in overruling the demurrer to the indictment charging the defendant with selling marijuana, where one of the grounds was that it failed to allege the name of the vendee. The Court of Criminal Appeals held that the trial court did err. We granted certiorari and now hold that the ruling of the trial court was without error.
The indictment charged that the defendant 'did sell, furnish, or give away marijuana contrary to law, against the peace and dignity of the State of Alabama.' This indictment was in the terms of the statute, Act No. 1407, § 401, Acts of Alabama 1971, and listed in the 1958 Recompilation as Tit. 22, § 258(47)(a), which makes it a crime for 'any person who possesses, sells, furnishes, gives away, obtains, or attempts to obtain * * *' certain listed 'controlled substances' including marijuana.
In Duin v. State, 288 Ala. 329, 260 So.2d 602, the following appears:
'We quote from Clark v. State, 19 Ala. 552:
"It has been repeatedly held by this court, that where a statute creates a new offense, all the law requires is a description of the offense in the indictment in the terms of the statute enacting it.'
'See also Thomas v. State, 156 Ala. 166, 47 So. 257. Anderson, Justice, writing for the court said:
'
'In view of the statutory allegations in the indictment that substantially follow the language of the statute, we cannot agree with the Court of Criminal Appeals that the indictment, because the name of the vendee was omitted, would not support the judgment of conviction.'
In Jackson v. State, 91 Ala. 55, 8 So. 773 (1890), this court, per Coleman, J., (the grandfather of our present Justice Coleman), said:
'The statutes of this state have changed the common-law rules of criminal pleading, dispensing with many averments which were regarded as indispensable, reducing indictments rather to a statement of legal conclusions than of facts.'
Title 15, §§ 230 and 232 (then §§ 4366 and 4368) of the Code were cited and applied. The indictment in that case charged that Jackson 'did attempt to feloniously take and carry' etc. This court held the indictment to be sufficient, even though there was no specific form for an 'attempt' in the Code.
Title 15, §§ 230 and 232 provide:
In Jones v. State, 136 Ala. 118, 34 So. 236, the indictment charged that the defendant 'did within the county of Hale, in the State of Alabama, sell spirituous, vinous or malt liquors, without a license and contrary to law.' The indictment followed the statute and Form 79 in § 4923, Criminal Code, 1896. A demurrer was interposed on the ground that the indictment failed to allege the name of the vendee. The demurrer was overruled. The defendant contended that it was necessary to name the person to whom the sale was made. This court said:
'* * * This contention proceeds upon the assertion that the statute is unconstitutional--that it is violative of section 7 of the Bill of Rights, Constitution of 1875 (Section 6 of Constitution of 1901), which guarantees to defendant the right 'to demand the nature and cause of the accusation.' * * *'
The court rejected the contention that the statutory form was unconstitutional and stated: 'The demurrer was properly overruled.'
In Lawson v. State, 151 Ala. 95, 44 So. 50, the defendant interposed a demurrer to the indictment because it failed to allege to whom the defendant sold or gave away the liquor. The court held 'that the demurrer attacking the form of the indictment was properly overruled.'
In Grace v. State, 1 Ala.App. 211, 56 So. 25, the contention that 'the indictment must allege the name of the person to whom the gift was made (was rejected).'
In Freeman v. State, 4 Ala.App. 193, 59 So. 228, the court said:
In Thomas v. State, 13 Ala.App. 421, 69 So. 413, the court was concerned with an indictment for perjury and the opinion contains the following: 'But, as the law does not require that the name of the person to whom liquor has been sold be alleged in an indictment or affidavit charging another person with the selling (citations omitted), certainly it cannot be rationally contended that the law requires such name to be given in an indictment for perjury against one for testifying falsely in such a case as the former.'
In Allen v. State, 33 Ala.App. 70, 30 So.2d 479, the Court of Appeals, per Harwood, J., held an indictment for selling adulterated milk sufficient and said that Counts 1 and 2 which were in the terms of the statute 'adequately informed the accused of the offense he was charged with committing, and the court properly overruled the demurrers thereto.'
In Baker v. State, 39 Ala.App. 221, 96 So.2d 821, the indictment charged that the defendant 'did unlawfully expose or exhibit his sexual organs or private parts in a vulgar and indecent manner on a public road in Randolph County, Alabama, contrary to law.' This followed the statute setting up the offense which is listed as Tit. 14, § 326(1) of the 1958 Recompilation. The court said:
In Griffith v. State, 47 Ala.App. 378, 255 So.2d 48, cert. den. 287 Ala. 735, 255 So.2d 52, 405 U.S. 1042, 92 S.Ct. 1317, 31 L.Ed.2d 583, the Court of Criminal Appeals upheld an indictment against defendant for practicing law after disbarment which stated neither the name of the client nor the cause in which representation was furnished. The court said: 'Where the offense is statutory it is sufficient to allege it in the words of the statute provided it sufficiently defines the crime.'
In Young v. State, (Miss.), 245 So.2d 26, the court said:
In People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490, the Supreme Court of Illinois said:
...
To continue reading
Request your trial-
Manson v. State, 1 Div. 667
...of the necessity for an indictment to name or identify the other person or persons concerned in criminal transactions. Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973). There was involved the alleged violation of Code of Alabama (Recompiled 1958), 1971 Cum. Pocket Part, Tit. 22, § 258(47......
-
Favor v. State
...the decisions of the Alabama Supreme Court per § 12-3-16 Code of Ala.1975, and that court has ruled on this issue. In Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973), a case involving the illegal sale of drugs for which there was no specific indictment form, our supreme court held that ......
-
Ex parte Buck, DUFFIE--P
... ... JONES, Justice ... Does a divorce-child custody action pending in one state abate a like suit in another state? 1 We answer in the negative and reverse and remand this cause to the Court of Civil Appeals. We agree with ... ...
-
Andrews v. State
...is all the notice he gets of what he is called upon to defend against. See: Chief Justice Heflin's dissent in Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973). Criteria (a) was not satisfied in the instant indictment, therefore, the appellant's conviction must be reversed and remanded. L......