Hall v. State
| Decision Date | 07 June 1973 |
| Citation | 281 So.2d 662,291 Ala. 397 |
| Parties | In re Billy Joe HALL v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. SC 286. |
| Court | Alabama Supreme Court |
William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
No brief for the respondent.
We are not in accord with the conclusions of the Court of Criminal Appeals that because the indictment in this case failed to negative that the drugs possessed by the defendant were (1) obtained upon a valid prescription and held in the original container, or (2) were not delivered by a practitioner in the course of his practice and were held in the original container, stated no offense and was therefore void.
The indictment upon which the defendant below was convicted charged in parts pertinent to this review that the defendant:
'* * * did * * * unlawfully possess 23 tablets of amphetamine content and 296 capsules of amphetamine in combination with a barbiturate all of which was (sic) depressant or stimulating drugs, contrary to and in violation of the provisions of Act No. 252 of 1967 Regular Session of the Alabama Legislature, otherwise known as the Alabama Drug Abuse Control Act, and that such act took place subsequent to August 24, 1967, * * *'
The statutory provision with which this appellant was charged with violating is to be found in Act 252, Acts of Alabama 1967, p. 633, which Act was approved 24 August 1967, repealed by Act No. 1407, Sec. 508, Acts of Alabama 1971. Sec. 5(b), (c) of said Act when it was in existence read:
'(c) No person, other than a person described in subsection (a) or subsection (b)(2) shall possess any depressant or stimulant drug unless (1) such drug was obtained upon a valid prescription, and is held in the original container in which such drug was delivered; or (2) such drug was delivered by a practitioner in the course of his professional parctice and the drug is held in the immediate container in which such drug was delivered.'
The question therefore arises as to whether the provisos and exceptions in the above provision are in distinct clauses, or are so intertwined with the general offense of possessing certain drugs as to be a constituent part of the general offense.
There can be no doubt that exceptions contained in the first part of the provision reading: 'No person other than a person described in subsection (a) or subsection (b)(2) shall possess any depressant drug * * *' relate not only to separate clauses but to separate subsections of Act 252. Clearly, under these circumstances, these exceptions need not be negatived in the indictment.
As to provisions (1) and (2), no need arises to negative them if they be considered as separate clauses. They are separated from the clause creating the offense (possessing a depressant or stimulant drug) by the word 'unless.'
In support of its conclusions that the indictment is void because of its failure to set forth that the defendant was not within the exceptions or provisos contained in Section 5(b), (c) of Act 252, the Court of Criminal Appeals cites Dorgan v. State, 29 Ala.App. 362, 196 So. 160; Sizemore v. State, 45 Ala.App. 126, 226 So.2d 669; and Clark v. State, 19 Ala. 552. In particular, we gather from the opinion, reliance was placed upon Clark v. State, supra, for the conclusion reached by the Court of Criminal Appeals, as evidenced by the following statement from Clark, supra, set forth in the opinion of the Court of Criminal Appeals:
(Emphasis ours.)
The cases dealing with the necessity of negativing exceptions or provisos in an information or indictment charging violation of a statutorily created offense are legion, and an excellent discussion of the varied results reached may be found in an annotation in 153 A.L.R., p. 1219 et seq.
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Dickerson v. State
... ... Specifically, he must establish that the marihuana seized from his residence contained excludable matter falling within the definition of such under § 20-2-2(15). See Hall v. State, 291 Ala. 397, 281 So.2d 662 (1973); Peppers, supra; State v. Buchman, 361 So.2d 692 (Fla.1978); State v. Carter, 214 Kan. 533, 521 P.2d 294 (1974); State v. Brothers, 212 Kan. 187, 510 P.2d 608 (1973); State v. Dixon, 546 S.W.2d 774 (Mo.App.1977); Elkins v. State, 543 S.W.2d 648 ... ...
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Knox v. State, 8 Div. 245
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