Duin v. State

Decision Date13 January 1972
Docket Number3 Div. 489
CourtAlabama Supreme Court
PartiesIn re Gregg DUIN v. STATE of Alabama. Ex parts STATE of Alabama ex rel. ATTORNEY GENERAL.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.

Howard C. Oliver, Montgomery, for respondent.

PER CURIAM.

We granted certiorari, at the instance of the State of Alabama, to review the decision of the Court of Criminal Appeals, 260 So.2d 599 which reversed the judgment of the trial court and remanded the cause.

The defendant (appellant) was convicted and sentenced to the penitentiary for selling marijuana in violation of § 256, Title 22, Recompiled Code, 1958, as amended. Section 258(a) and (b) as amended, Recompiled Code, supra, prescribes the penalty. See Cumulative Pocket Part.

Petitioner, the State of Alabama, complains that the Court of Criminal Appeals erred in reversing the judgment of conviction for the reason as stated in its opinion that the indictment fails to allege the name of the person to whom the defendant sold the marijuana and therefore would not support the judgment of conviction.

Section 256, supra, as last amended (Acts 1969, Act No. 625, p. 1139) reads as follows:

'It shall be unlawful for any person to possess, transport, deliver, sell, offer for sale, barter, or give away in any form whatever in this state, any marijuana, cannabis Americana, or cannabis Indica, or any compound or mixture containing any marijuana, cannabis Americana or cannabis Indica, or any derivative therefrom or thereof or synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as tetrahydrocannabinol and its optical isomers, or any cigar or cigarettes made of or containing any marijuana, cannabis Americana or cannabis Indica or such synthetic equivalents or derivatives.'

The indictment reads:

'The Grand Jury of said County charge that, before the finding of this indictment, GREGG DUIN, whose name is to the Grand Jury otherwise unknown, did on, to-wit, October 26, 1969, willfully, unlawfully, lawfully, and feloniously sell marijuana, cannabis Americana or cannabis Indicia (sic), or a compound or mixture containing marijuana, cannabis Americana or cannabis Indicia (sic), against the peace and dignity of the State of Alabama.'

In State v. Duncan, 9 Porter 260, we held:

'Where a statute is introductive of a new offense, and prescribes its constituents without reference to anything else--in an indictment founded upon it, it is sufficient to describe the offense in the terms of the act.'

In Jackson v. State, 236 Ala. 75, 182 So. 83, we observed:

'The indictment follows substantially the language of the statute, and though it is subject to the demurrable defect that it does not with certainty to a particular intent describe the gambling device, it charges every element of the offense, and does not embrace an act not denounced by the statute, and is sufficient, in the absence of appropriate objections, to support the judgment of conviction.'

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:

'The statute makes the Code form of indictments sufficient in all cases in which said forms are applicable. * * * In statutory offenses, where no form of indictment is given, it is usually sufficient to follow the statute. * * * Mr. Bishop in his work on Statutory Crimes * * * says: 'Follow the Statute.--This rule is specially safe and in most instances sufficient, in various forms of the offense now under consideration. Rarely will the allegations require expansion beyond the statutory terms.''

Here, the indictment was framed in the words of the statute applying to the alleged sale of marijuana and kindred items mentioned in the statute. The legislature has not prescribed a form for the indictment.

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.

Appellant did not demur to the indictment, or otherwise, by competent pleading, challenge its legal sufficiency. We, therefore, pretermit a determination as to what effect a demurrer raising omission of the name of the vendee would have had.

We note that in the...

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13 cases
  • Adkins v. State
    • United States
    • Alabama Supreme Court
    • November 8, 1973
    ... ... 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 ... ...
  • Guaranty Funding Corp. v. Bolling
    • United States
    • Alabama Supreme Court
    • April 6, 1972
    ... ... a court to issue the writ of mandamus is invoked by the filing of a proper petition which is the first pleading.--s 1072, Title 7, Code 1940; State ex rel. Holcombe v. Stone, 232 Ala. 16, 166 So. 602; Shirey v. City Board of Education of Fort Payne, 266 Ala. 185, 94 So.2d 758 ... ...
  • Hagendorfer v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 24, 1977
    ... ... Where, as here, the indictment follows substantially the language of the statute, but simply fails to set out the name of the vendee, such was nevertheless sufficient to support a judgment of conviction. Duin v. State, 288 Ala. 329, 260 So.2d 602, and authorities cited therein ...         In the case at bar, however, the indictment simply averred the name of Agent Womack when the proof on trial affirmatively establishes that both officers participated in the purchase from the appellant, and ... ...
  • Lowe v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 3, 1972
    ... ...         Appellant filed a demurrer as follows: ... '1. For that said indictment does not apprise the defendant specifically of the accusations made against him. (Reference 80 Southern 2nd 495 Gayden vs. State, also Greg Duin vs. State of Alabama (Alabama Criminal Court of Appeals October Term 1970--71 Third Division 79 ... '2. For said indictment fails to allege in count two of the indictment the name of the buyer of the marijuana. (See Gregg Duin vs. State, Alabama Criminal Court of Appeals October Term 1970--71 ... ...
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