Opinion
4 Div. 201.
March 20, 1973. Rehearing Denied April 17, 1973.
Appeal from the Circuit Court, Houston County, Forrest L. Adams, J.
Samuel L. Adams, Dothan, for appellant.
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. Duin v. State, 47 Ala. App. 693, 260 So.2d 601; Dorman v. State, 34 Ala. 216; Grattan v. State, 71 Ala. 344. It is error to overrule a demurrer to an indictment charging sale of marijuana when the indictment does not allege the name of the buyer. Pettry v. State, 47 Ala. 237, 252 So.2d 659.
William J. Baxley, Atty. Gen. and Otis J. Goodwyn, Jr., Montgomery, 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. 472; 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 Edition, 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, supra. 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, Id. 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202; State v. Gallegos, 99 Ariz. 168, 407 P.2d 752; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627; Collins v. Markley, (7th Cir.) 346 F.2d 230, Id. 382 U.S. 946, 86 S.Ct. 408, 15 L.Ed.2d 355; Firo v. United States, (5th Cir.) 340 F.2d 597, Id. 381 U.S. 929, 85 S.Ct. 1568, 14 L.Ed.2d 687; United States v. Jackson, (3d Cir.) 344 F.2d 158; Sanchez v. United States, (1st Cir.) 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. 1965) 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.
The indictment charges appellant with possessing, selling, furnishing, or giving away Lysergic Acid Diethylamide (LSD) contrary to law. The jury found the defendant guilty of selling the contraband substance. The trial court sentenced defendant to imprisonment in the penitentiary for a term of five years.
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.
In view of the reversible error, supra, we pretermit considering any of the other points raised by appellant.
The judgment below is reversed and the cause remanded.
The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a Judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of this Court.
Reversed and remanded.
All the Judges concur.