Dorgan v. State, 1 Div. 355.

• Court: Alabama Court of Appeals
• Citation: 196 So. 160,29 Ala.App. 362
• Docket Number: 1 Div. 355.
• Parties: DORGAN v. STATE.
• Decision Date: 14 May 1940

196 So. 160

29 Ala.App. 362

DORGAN
v.
STATE.

1 Div. 355.

Court of Appeals of Alabama

May 14, 1940

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Edward H., alias Ed., Dorgan was convicted of piloting a vessel without a branch or license as pilot, and he appeals.

Affirmed. [196 So. 161]

Ed Dorgan, pro se.

[29 Ala.App. 363] Thos. S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty. Gen. for the State.

SIMPSON, Judge.

This case deals with a criminal prosecution under the State Pilotage Commission Act of 1931, specifically Section 28 thereof.

Upon original submission, appellant (defendant in the court below) failed to support the appeal with brief and argument. After submission of the cause, however, and the filing of brief and argument in behalf of appellee by the Attorney General, the appellant did present his brief and argument, pro se, and to which, also, this court has addressed careful consideration.

The appeal is upon the record proper, no bill of exceptions appearing in the transcript. It is thereby disclosed that the proceedings in the lower court were orderly. This review, therefore, involves consideration, only of that court's action in overruling of the demurrers to the several counts of the indictment, interposed by the defendant pending trial. For the reasons hereinafter evidently appearing in this opinion, it is unnecessary to here set out either the indictment or demurrers thereto.

The prosecution was for violation of Section 28 of said Act--where the defendant was charged with having engaged in the transaction denounced therein, viz., piloting or conducting a vessel without a branch as pilot. General Acts of Alabama 1931, Act No. 81, p. 154 et seq.

The alleged deficiencies of the indictment, charged by the demurrers, may be, for convenience, grouped, as follows: (1) That the indictment did not, by affirmative averment, deny that the designated vessel (which defendant was charged with having piloted without a license) was exempted under the Alabama statute, supra; (2) to like effect, that the indictment did not affirmatively assert that said vessel was not exempted from the operation of the act by reason of federal law; (3) that said Section 28 of the Alabama Act was inconsistent or in conflict with the U.S. Shipping Act (specifically Section 4444, U.S. Rev. St., 46 U.S.C.A. § 215); and (4) the indictment (this is not true of the first two counts) "undertakes to negative certain exceptions, exempting certain vessels from compulsory pilotage, contained in said State Act of 1931, and fails to negative other exceptions exempting certain vessels from compulsory pilotage in such act." No. 7, Demurrers.

(1) Section 28 of the Act under which this prosecution was rested is: "Any person piloting or conducting a vessel in or [29 Ala.App. 364] out of the bay of Mobile, or over the outer bar thereof without a branch as pilot, or after having forfeited or having been deprived of his branch, is entitled to no fee or [196 So. 162] reward for the service; and in addition thereto shall be punishable by a fine of not less than $25.00 nor more than $100.00 for each offense."

The vessels excepted or exempted (under the State Pilotage Act) from the operation of this Section are not therein listed but appear, elsewhere, in other Sections of the statute. It was, therefore, not necessary to negative these exceptions by averment in the indictment. "The rule is that, when the exception is set out in a separate clause or section from that creating and defining the offense, it is not necessary to negative the exception by averment. ...