Opinion
3 Div. 489.
January 13, 1972.
Appeal from the Circuit Court of Montgomery County, Richard P. Emmet, J.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.
The traditional majority American rule is that an indictment for a selling offense need not set out the name of the vendee. Wharton's Criminal Law, Seventh Edition (1874), Vol. II, Section 2445. An indictment for selling narcotics need not set out the name of the vendee. Young v. State, Miss., 245 So.2d 26; People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490; State v. Gallegos, 99 Ariz. 168, 407 P.2d 752; People v. Leiva, 134 Cal.App.2d 100, 285 P.2d 46. Neither the Constitution nor the Laws of the United States require that an indictment for selling marijuana set out the name of the vendee. United States v. Ewell, 383 U.S. 116, 15 L.Ed.2d 627, 86 S.Ct. 773; Collins v. Markley (7th Cir. 1965) 346 F.2d 230; Id. 382 U.S. 946, 15 L.Ed.2d 355, 86 S.Ct. 408; Firo v. United States (5th Cir. 1965) 340 F.2d 597; Id. 381 U.S. 929, 14 L.Ed.2d 687, 85 S.Ct. 1568; United States v. Jackson (3rd Cir. 1965) 344 F.2d 158; Sanchez v. United States (1st Cir., 1965) 341 F.2d 379; Llamas v. United States (E.D.N.Y.) 226 F. Supp. 351; Id. (2nd Cir., 1964) 327 F.2d 657; Aggers v. United States (8th Cir. 1966) 366 F.2d 744; Cain v. United States (8th Cir. 1965) 349 F.2d 870; Taylor v. United States (8th Cir. 1964) 332 F.2d 918; Jackson v. United States (8th Cir. 1963) 325 F.2d 477; Robinson v. United States (9th Cir. 1964) 329 F.2d 156; Clay v. United States (10th Cir. 1963) 326 F.2d 196.
Howard C. Oliver, Montgomery, for respondent.
Where no code form is provided, indictments must conform to the common law standards as modified by the Statutes of Alabama. Mitchell v. State, 41 Ala. App. 254, 130 So.2d 198; Id. 272 Ala. 707, 130 So.2d 205. An indictment wherein the gravamen of the offense is a sale, must name the vendee. Francois v. State, 20 Ala. 83; Starr v. State, 25 Ala. 38; Dorman v. State, 34 Ala. 216; Grattan v. State, 71 Ala. 344; Jones v. State, 136 Ala. 118, 34 So. 236. 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. Code of Alabama, 1940, Recomp. 1958, Title 15, § 232. The failure to state the age of the vendor or vendee in an indictment for the sale of marijuana when the penalties for a conviction for such offense may vary with the ages of the vendor and vendee, renders such an indictment void. Harris v. State, 50 Ala. 127. A void indictment is appropriately raised by a request for the affirmative charge. Starr v. State, 25 Ala. 38; Shelton v. State, 143 Ala. 98, 39 So. 377; Cagle v. State, 151 Ala. 84, 44 So. 381.
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, 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 opinion, in support of the reversal, the Court of Criminal Appeals cites four cases: Dorman v. State, 34 Ala. 216; Grattan v. State, 71 Ala. 344; Jones v. State, 136 Ala. 118, 34 So. 236; and Jones v. State of Oklahoma, Okl.Cr., 321 P.2d 432.
In the Dorman case, there was a demurrer to the indictment on the ground, inter alia, that the indictment did not state to whom the alleged sale was made, or whether it was made to any legal person, or to any person at all.
In the Grattan case the indictment charged that the defendant did unlawfully and knowingly buy cotton in the seed, which was produced in Lowndes County. We held that the omission of the name of the owner of the seed rendered the indictment fatally defective. The original record shows that a demurrer challenging the indictment was interposed.
In Jones v. State of Alabama, supra, there was an indictment for selling liquor without a license. The statute prescribed the form of the indictment. This court held that it was not necessary to allege the name of the purchaser. This observation was in response to a demurrer.
In Jones v. State of Oklahoma, supra, the name of a vendee of prohibited narcotics was omitted from the information. No demurrer was filed. However, a timely and properly made objection was overruled. The Appellate Court reversed and remanded the case because of this ruling. Under Oklahoma law such objection occupies the same position as a demurrer. It follows, therefore, that the holding in Jones v. State of Oklahoma, supra, is not dispositive of the question presently considered because in this case there was no demurrer.
In its opinion the Court of Criminal Appeals commented on the absence of counsel for defendant at the time the defendant was sentenced and apparently viewed this as erroneous.
However, as the opinion of the Court of Criminal Appeals now stands, the conclusion is necessitated that the sole basis of the order of reversal was the court's conclusion that the indictment was void. Such basis is without merit. Coleman v. State, 150 Ala. 64, 43 So. 715.
We, therefore, feel that the opinion of the Court of Criminal Appeals should be reversed and the cause remanded for further consideration of matters that may appear in the record. Such consideration shall not be inconsistent with this opinion.
Reversed and remanded.
LAWSON, HARWOOD, BLOODWORTH, MADDOX, and McCALL, JJ., concur.
HEFLIN, C. J., and COLEMAN, J., concur in the result.