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Broadus v. United States

Circuit Court of Appeals, Fifth Circuit
Feb 5, 1929
30 F.2d 394 (5th Cir. 1929)

Opinion

No. 5376.

February 5, 1929.

Appeal from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.

Alonzo Broadus was convicted of selling liquor, and he appeals. Reversed.

S.C. Mize, of Gulfport, Miss., for appellant.

E.E. Hindman, U.S. Atty., and H. Cassedy Holden, Asst. U.S. Atty., both of Jackson, Miss.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.



An indictment was returned which charged appellant in three counts with the sale of intoxicating liquor. The counts are in practically the same language. The first count, so far as is necessary to quote, is as follows:

"Alonzo Broadus did knowingly, willfully and unlawfully sell intoxicating liquor, to wit, whisky, said sale being then and there prohibited and unlawful."

A general demurrer was overruled, and appellant was put on trial and convicted. Error is assigned to the overruling of the demurrer.

We have heretofore pointed out that, in charging a sale of intoxicating liquor for beverage purposes in violation of the National Prohibition Act (27 USCA), it is essential to allege that the intoxicating liquor was sold for beverage purposes and to not leave that important element, necessary to constitute the sale an offense, to conjecture. To say that the liquor was whisky is enough to show the alcoholic content, but to say that it was sold unlawfully or that the sale was prohibited is a mere conclusion of the pleader. Brown v. U.S. (C.C.A.) 21 F.2d 827; Middlebrooks v. U.S. (C.C.A.) 23 F.2d 244. The demurrer should have been sustained and the indictment dismissed. It is unnecessary to consider the other errors assigned.

Reversed.


Summaries of

Broadus v. United States

Circuit Court of Appeals, Fifth Circuit
Feb 5, 1929
30 F.2d 394 (5th Cir. 1929)
Case details for

Broadus v. United States

Case Details

Full title:BROADUS v. UNITED STATES

Court:Circuit Court of Appeals, Fifth Circuit

Date published: Feb 5, 1929

Citations

30 F.2d 394 (5th Cir. 1929)

Citing Cases

Carnahan v. United States

In the Fifth Circuit the rule is otherwise. Broadus v. United States, 30 F.2d 394; Middlebrooks v. United…