Gayden v. State, 3 Div. 970

• Court: Alabama Court of Appeals
• Writing for the Court: CARR
• Citation: 80 So.2d 495,38 Ala.App. 39
• Decision Date: 31 August 1954
• Docket Number: 3 Div. 970
• Parties: Lewis R. GAYDEN v. STATE.

Page 495

80 So.2d 495 38 Ala.App. 39 Lewis R. GAYDEN
v.
STATE. 3 Div. 970. Court of Appeals of Alabama. Aug. 31, 1954.
Rehearing Denied Sept. 24, 1954.

Page 496

Hill, Hill, Stovall & Carter and Hill, Hill, Whiting & Harris, Montgomery, for appellant.

[38 Ala.App. 40] Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the state.

CARR, Presiding Judge.

[38 Ala.App. 41] The indictment in this case is as follows:

'The State of Alabama

'Montgomery County

'Circuit Court of Montgomery County, July Term, A.D. 1953.

'Count 1: The Grand Jury of said County charge, that before the finding of this indictment----

'Lewis R. Gayden, alias L. Ruben Gayden, whose name is to the Grand Jury otherwise

Page 497

unknown, did possess, sell, furnish, or give away opium, a narcotic drug, contrary to the provisions of Chapter 8 of Title 22 of the 1940 Code of Alabama;

'Count 2: The Grand Jury of said County further charge that, before the finding of this indictment, Lewis R. Gayden, alias L. Ruben Gayden, whose name is to the Grand Jury otherwise unknown, did possess, sell, furnish, or give away morphine, a narcotic drug, contrary to the provisions of Chapter 8 of Title 22 of the 1940 Code of Alabama;

'Count 3: The Grand Jury of said County further charge that, before the finding of this indictment, Lewis R. Gayden, alias L. Ruben Gayden, whose name is to the Grand Jury otherwise unknown, did possess, sell, furnish, or give away opium, a narcotic drug, contrary to law;

'Count 4: The Grand Jury of said County further charge that, before the finding of this indictment, Lewis R. Gayden, alias L. Ruben Gayden, whose name is to the Grand Jury otherwise unknown, did possess, sell, furnish, or give away morphine, a narcotic drug, contrary to law;

'Count 5: The Grand Jury of said County further charge that, before the finding of this indictment, Lewis R. Gayden, alias L. Ruben Gayden, whose name is to the Grand Jury otherwise unknown, did obtain a narcotic drug, to-wit: opium, by fraud, deceit, misrepresentation or subterfuge, or by the forgery or alteration of a prescription or written order, or by the concealment of a material fact, or by the use of a false name or the giving of a false address;

'Count 6: The Grand Jury of said County further charge that, before the finding of this indictment, Lewis R. Gayden, alias L. Ruben Gayden, whose name is to the Grand Jury otherwise unknown, did obtain a narcotic drug, to-wit: Morphine, by fraud, deceit, misrepresentation or subterfuge, or by the forgery or alteration of a prescription or written order, or by the concealment of a material fact, or by the use of a false name or the giving of a false address;

'Count 7: The Grand Jury of said County further charge that, before the finding of this indictment, Lewis R. Gayden, alias L. Ruben Gayden, whose name is to the Grand Jury otherwise unknown, did possess, sell, furnish, or give away opium, a narcotic drug, contrary to the provisions of Chapter 8 of Title 22 of the 1940 Code of Alabama, as the same has been amended,

against the peace and dignity of the State of Alabama.'

The trial judge overruled demurrers to each count of the indictment.

The defendant requested the general affirmative charge as to each count. Each of these was refused.

The jury returned a general verdict of guilt.

In the state of the record we are not privileged to refer the verdict to a good count in the indictment even if the evidence supports its averments. Hawes v. State, 216 Ala. 151, 112 So. 761; Jones v. State, 236 Ala. 30, 182 So. 404; Griffin v. State, 22 Ala.App. 369, 115 So. 769; Crow v. State, 35 Ala.App. 606, 51 So.2d 268.

These three positions are posed in appellant's brief in support of the insistence that the indictment is defective:

'(a) In failing to aver the time of the commission of the offense;

'(b) In failing to charge that the alleged acts mentioned in Counts 1, 2, 3, 4, and 7 were done unlawfully; and

'(c) As to Counts 5 and 6, in addition to failing to aver that the acts were done unlawfully,[38 Ala.App. 42] the facts constituting the alleged fraud, deceit, misrepresentation, or subterfuge are not set forth and that the prescription or written order charged as being a forgery or an alteration is not set forth in said count and that the facts constituting the alleged concealment and the use of the false name or false address mentioned in said count are not set forth therein.'

The legislature amended Section 255, Title 22 of the Code of 1940 by making a violation of certain provisions of the Narcotic Drug Act punishable as a felony instead

Page 498

of a misdemeanor. This amendment was approved July 27, 1951. Acts of Alabama 1951, Act No. 306, p. 599.

The indictment in the case at bar was returned on July 16, 1953. This was almost two years after the approval of the indicated amendment. On the face of the indictment the misdemeanor is barred by the statute of limitation of twelve months. Under these circumstances time was not an essential ingredient or a material averment of the indictment in order to differentiate the accusation. Farrister v. State, 18 Ala.App. 390, 92 So. 504. See also, 12 Ala.Digest, Indictment, k87(1).

In the early case of State v. Click, 2 Ala. 26, the accused was indicted for carrying a concealed weapon. The indictment did not contain the word 'unlawfully.' In response to the review the court said:

'Had the term 'unlawfully' been employed in describing the manner in which the pistol was carried, it is not conceived that it would have imparted additional potency to the indictment. The statute which created the offense made its commission unlawful, so that, had that word been used, it must have been regarded as a mere expletive.'

We reviewed the same question in the case of Coshatt v. State, Ala.App., 69 So.2d 877. We held that the indictment was sufficient although it did not contain the word 'unlawful.'

See also, Porter v. State, 15 Ala.App. 218, 72 So. 776; Riley v. State, 32 Ala.App. 180, 23 So.2d 10.

We come now to the third aspect of this review. The solution of this question has invited considerable study and research. It is our view that there is merit in the position posed by the appellant.

The general statute relating to indictments is Title 15, Sec. 232, Code 1940:

'The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment; and in no case are the words 'force of arms' or 'contrary to the form of the statute' necessary.'

The constitutional right of an accused to demand the nature and cause of his accusation is not a technical right, but is fundamental and essential to the guaranty that no person shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense.

An...