Opinion
SC 376.
November 8, 1973.
Appeal from the Circuit Court, Houston County, Adams, J.
William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.
Where a statute creates a new offense unknown to the common law, all that the law requires in framing an indictment is a description of the offense in the terms of the Statute enacting it. State v. Briley, 8 Port. 274; State v. Duncan, 9 Port. 260; Clark v. State, 19 Ala. 552. It is not necessary to name the vendee in a selling offense where the statute violated forbids such sales irrespective of persons. Allen v. State, 33 Ala. App. 70, 30 So.2d 479; Wharton, Criminal Law, 11th Ed., Section 1805. The offense of selling an item irrespective of persons, is not, like assault or other offense injuring person or property of another, directed against an individual, but is, like nuisance, directed against the community, therefore not requiring the naming of the vendee in the indictment. Wharton, Criminal Law, 11th Edition, Section 1805. It is not necessary that an indictment for illegal sale of lysergic acid diethylamide set out the name of the vendee. Young v. State, Miss., 245 So.2d 26; People v. Leiva, 134 Cal.App.2d 100, 285 P.2d 46; People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490, affirmed 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202; State v. Gallegos, 99 Ariz. 168, 407 P.2d 752; Adams v. United States, 333 F.2d 766 (8th Cir. 1964); Collins v. Markley, 7 Cir., 346 F.2d 230; Id., 382 U.S. 946, 86 S.Ct. 408, 15 L.Ed.2d 355; Fire v. United States, 5 Cir., 340 F.2d 597, Id., 381 U.S. 929, 85 S.Ct. 1568, 14 L.Ed.2d 687.
Samuel L. Adams, Dothan, for respondent.
When an offense is statutory, an indictment framed substantially in the words of the statute is usually sufficient, however, this rule is not without qualification. That qualification is that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusations against him, to the end that he may prepare his defense. An indictment not so framed is defective. Gayden v. State, 262 Ala. 468, 80 So.2d 501; United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819. In the absence of an excusing statute it is needful to allege the name of the vendee when selling is a part of an offense. Dorman v. State, 34 Ala. 216; Grattan v. State, 71 Ala. 344.
The sole issue presented is whether an indictment for selling drugs must name the vendee in the sale.
The indictment charged that the defendant "did possess, sell, furnish, or give away Lysergic Acid Diethylamide, contrary to law." He was found guilty and sentenced to five years imprisonment in the penitentiary. The Court of Criminal Appeals reversed for the following reason:
"The indictment, as pointed out by an appropriate ground of demurrer, omits the name of the vendee. The court overruled the demurrer. This ruling was error. Pettry v. State, 47 Ala. App. 237, 252 So.2d 659."
Based upon the authority of Adkins v. State, 291 Ala. 695, 287 So.2d 451, this day decided, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court.
The Pettry case, decided by the Court of Criminal Appeals on May 11, 1971, cited as authority that court's decision in Duin v. State, 260 So.2d 599. Certiorari had been granted in Duin and it is a valid assumption that since Duin was already before this court, there was no need to petition for certiorari in Pettry. We reversed the holding in Duin v. State, 288 Ala. 329, 260 So.2d 602, but specifically pretermitted "a determination as to what effect a demurrer raising omission of the name of the vendee would have had."
In view of our holding in Adkins v. State, 291 Ala. 695, 287 So.2d 451, the case of Pettry v. State, 47 Ala. App. 237, 252 So.2d 659, does not correctly state the law and should not be followed.
Reversed and remanded.
COLEMAN, HARWOOD, BLOODWORTH, MADDOX, McCALL, FAULKNER and JONES, JJ., concur.
HEFLIN, C. J., dissents.