Opinion
1 Div. 137.
May 11, 1971. Rehearing Denied June 1, 1971.
Appeal from the Circuit Court of Baldwin County, Mashburn, J.
Thomas M. Haas, and J. D. Quinlivan, Jr., Mobile, for appellant.
It is error to overrule a demurrer to an indictment charging the sale of marijuana, when the indictment fails to allege the name of the vendee to whom the prohibited substance was allegedly sold. Duin v. State, 47 Ala. App. 693, 260 So.2d 599; Gayden v. State, 38 Ala. App. 39, 80 So.2d 495. It is error to deny defendant's requested affirmative charge where the indictment would not, absent the identity of the purchaser support a conviction for the offense of selling marijuana. Duin v. State, supra.
William J. Baxley, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.
An indictment which uses the language of a statute which creates a new crime unknown to the common law is sufficient to support a judgment of conviction of the offense. State v. Briley, 8 Port. 472; State v. Duncan, 9 Port. 260; Clark v. State, 19 Ala. 552; Thomas v. State, 166 Ala. 166, 47 So. 257; Jackson v. State, 236 Ala. 75, 182 So. 83.
Selling marijuana: sentence, five years.
The true bill omits the name of the buyer. Ground 5 of the defendant's demurrer raised this deficiency. Hence, the trial court erred in overruling the demurrer. Duin v. State, 693, 260 So.2d 599 (mss. Mar. 16, 1971).
In review of reversible error thus being shown, we have not examined any of the other points raised by appellant.
The judgment below is one to be reversed and the cause is remanded.
Reversed and remanded.