196 So. 160 | Ala. Ct. App. | 1940
This case deals with a criminal prosecution under the State Pilotage Commission Act of 1931, specifically Section 28 thereof.
Upon original submission, appellant (defendant in the court below) failed to support the appeal with brief and argument. After submission of the cause, however, and the filing of brief and argument in behalf of appellee by the Attorney General, the appellant did present his brief and argument, pro se, and to which, also, this court has addressed careful consideration.
The appeal is upon the record proper, no bill of exceptions appearing in the transcript. It is thereby disclosed that the proceedings in the lower court were orderly. This review, therefore, involves consideration, only of that court's action in overruling of the demurrers to the several counts of the indictment, interposed by the defendant pending trial. For the reasons hereinafter evidently appearing in this opinion, it is unnecessary to here set out either the indictment or demurrers thereto.
The prosecution was for violation of Section 28 of said Act — where the defendant was charged with having engaged in the transaction denounced therein, viz., piloting or conducting a vessel without a branch as pilot. General Acts of Alabama 1931, Act No. 81, p. 154 et seq.
The alleged deficiencies of the indictment, charged by the demurrers, may be, for convenience, grouped, as follows: (1) That the indictment did not, by affirmative averment, deny that the designated vessel (which defendant was charged with having piloted without a license) was exempted under the Alabama statute, supra; (2) to like effect, that the indictment did not affirmatively assert that said vessel was not exempted from the operation of the act by reason of federal law; (3) that said Section 28 of the Alabama Act was inconsistent or in conflict with the U.S. Shipping Act (specifically Section 4444, U.S. Rev. St., 46 U.S.C.A. § 215); and (4) the indictment (this is not true of the first two counts) "undertakes to negative certain exceptions, exempting certain vessels from compulsory pilotage, contained in said State Act of 1931, and fails to negative other exceptions exempting certain vessels from compulsory pilotage in such act." No. 7, Demurrers.
(1) Section 28 of the Act under which this prosecution was rested is: "Any person piloting or conducting a vessel in or *364 out of the bay of Mobile, or over the outer bar thereof without a branch as pilot, or after having forfeited or having been deprived of his branch, is entitled to no fee or reward for the service; and in addition thereto shall be punishable by a fine of not less than $25.00 nor more than $100.00 for each offense."
The vessels excepted or exempted (under the State Pilotage Act) from the operation of this Section are not therein listed but appear, elsewhere, in other Sections of the statute. It was, therefore, not necessary to negative these exceptions by averment in the indictment. "The rule is that, when the exception is set out in a separate clause or section from that creating and defining the offense, it is not necessary to negative the exception by averment. Clark v. State,
(2) Analogously, the same principle of law (authorities, supra) disposes of the contention, by demurrers, that the exemptions extant by reason of federal law must be negatived by indictmental averment.
(3) This court does not perceive the alleged conflict of Section 28 of the Alabama Act with the federal statutes, asserted in the demurrers. Authority of the States to legislate in such matters has been universally recognized. The right of States to so legislate is by power originally, and not by that conferred by the United States. The Chase, D.C. Fla., 14 F. 854; Wilson v. McNamee,
"State pilotage laws, though regulations of commerce, are within power of state until such power is abrogated by Congress. Robins Dry Dock Repair Co. v. Navigazione Libera Triestina S.A. (Sup. 1931) [
We hold to the view, therefore, that the Pilotage Act of this State is not subject to the asserted inharmony to congressional legislation on the subject, insisted upon by appellant. The Act (Alabama) was under consideration by the U.S. Circuit Court of Appeals. Mobile Bar Pilots Ass'n v. Commission of Internal Revenue, 5 Cir.,
(4) It is deemed unnecessary to consider the point raised by No. 7 (supra) of the demurrers. This deficiency (if it be one, and we do not hold that it is) does not pertain as to the first two counts of the indictment. These counts were, substantially, in the language of said Section 28, which created and declared the offense and which prescribed with definiteness the constituents thereof. They were, therefore, legally sufficient and not subject to the demurrers interposed. Porter v. State,
If the remaining counts were defective at all, they were rendered so by setting out therein, some but not all of the exemptions *365
or exceptions then by law existing. Since, to aver such exceptions was not essential to the validity of the indictment — proof of such exceptions being defensive matter, exclusively, and in effect being superfluous allegations — it could not be conceived to have been of any possible prejudice to the defendant. But one offense, in fact, was charged in the several counts of the indictment, i. e. piloting the named vessel without a proper license. Substantially the same, and only the same, evidence, to prove the offense, was deducible under each of the counts; no less amount of proof, nor guilt to be shown, could have been exacted under one than the other of the several counts. No prejudice thus resulting to the defendant in such a situation, and the verdict of conviction returned by the jury being a general one, this verdict will be referred to the good counts (Nos. 1 and 2). 16 C. J., § 2594 (3), p. 1106; Hancock v. State,
Error, to the prejudice of the defendant, not appearing by the record submitted, the judgment below is affirmed.
Affirmed.
