Opinion
3 Div. 623.
January 15, 1929. Rehearing Denied February 12, 1929.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Gabe Williams was convicted of transporting five gallons or more of prohibited liquor, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Williams v. State, 219 Ala. 478, 122 So. 460.
The indictment is as follows:
"The grand jury of said county charge, that before the finding of this indictment and since November 10th, 1927, Gabe Williams did, within the County of Montgomery, unlawfully transport in a quantity of five gallons or more liquors or beverages, the sale, possession, or transportation of which is now prohibited by law, against the peace and dignity of the State of Alabama."
The grounds of the demurrer are as follows:
"1. The said indictment is bad, as said indictment has been found on a law that is unconstitutional in that it is an arbitrary and unreasonable classification of offenses concerning prohibited beverages by law against the residents of the State. 2. The indictment is bad, as it indicts the accused of a crime, which the indictment alleges is 'now contrary to law,' at the time that indictment was found, and emphasizing and inferring that the offense claim committed was not contrary to law at the time that the offense was committed, but that same is now contrary to law at the time that the indictment was found. 3. That said indictment is bad as it does not aver the means with which the offense was committed with. 4. That said indictment is bad as it does not prescribe the constituents of the offense which the accused is charged with committing. 5. That said indictment is too vague, uncertain and indefinite in that it does not state facts which will put the accused on notice of what he is charged with doing, and the manner in which he is charged with doing it so that he can prepare his defense and know what he is charged with."
Seal Finklestein, of Montgomery, for appellant.
The indictment was subject to the demurrer interposed thereto. Gaines v. State, 146 Ala. 16, 41 So. 865; Wester v. State, 147 Ala. 121, 41 So. 969; Smith v. State, 63 Ala. 55; Turnipseed v. State, 6 Ala. 664; Harris v. State, 50 Ala. 127; Anthony v. State, 29 Ala. 27; Hornsby v. State, 94 Ala. 55, 10 So. 522.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Appellant was indicted, tried, and convicted for and of the offense of violating the terms of Act of the Legislature of Alabama approved Sept. 6, 1927 (Gen. Acts Ala. 1927, p. 704) — the act which makes it a felony to transport, within this state, five gallons or more of any prohibited liquor.
The appeal is on the record proper — there being no bill of exceptions — and the only question presented for our consideration is the action of the trial court in overruling appellant's demurrers to the indictment. All we have to say is that the indictment follows the "words of the statute," and this seems, under our decisions, to be all that is necessary.
Or, to put it in the language of Samford, J., in the opinion in the case of Oliver v. State, 16 Ala. App. 533, 79 So. 313: "In drawing indictments under a Statute, it is sufficient if the language of the Statute is substantially followed." And the learned judge cites, in support of the statement just quoted, the following cases: Wright v. State, 3 Ala. App. 140, 57 So. 1023; Campbell v. State, 4 Ala. App. 104, 58 So. 125; Jordan v. State, 5 Ala. App. 229, 59 So. 710; Gleason v. State, 6 Ala. App. 49, 60 So. 518; Sellers v. State, 7 Ala. App. 78, 61 So. 485; McLain v. State, 15 Ala. App. 24, 72 So. 511; Porter v. State, 15 Ala. App. 218, 72 So. 776; Brannon v. State, 16 Ala. App. 259, 76 So. 991. As holding to the same effect, we cite the additional cases of: Dowdy v. State, 19 Ala. App. 503, 98 So. 365, and Thomas v. State, 156 Ala. 166, 47 So. 257.
The demurrers were properly overruled, and, no error being apparent, the judgment appealed from is affirmed.
Affirmed.