Jones v. State
136 Ala. 118
Ala.
1902
Check Treatment
TYSON, J.

The defendant was convicted for violating a local promibition law. The first count in the indictment is in the form prescribed by the Code, *123Crim. Code, p. 335, form 79. A demurrer was interposed to this count on the ground that it failed to allege the name of the person to whom the liquor was sold, which ivas overruled. Section 5077 of the Code provides that “In an indictment for retailing’ spirituous, vinous or malt liquors -without license, it is sufficient to charge that the defendant sold spirituous, vinous or malt liquors . without a license and contrary to law; and on the trial, any act of retailing in violation of the law may be proved; and for any violation of any special and local laws regulating or prohibiting the sale of spirituous, vinous or malt liquors within the place specified, such form shall be held good and sufficient.” Prior to the enactment of this statute it Avould doubtless have been necessary to allege the name of the purchaser. — Dorman v. State, 34 Ala. 216. And it is insisted that it is still necessary. This contention proceeds upon the assertion that the statute is unconstitutional — that it is violative of section 7 of the Bill of Bights, Constitution of 1875 (Section 6 of constitution of 1901), which guarantees to defendant the right “to demand the nature and cause of the accusation.” This question was settled adversely to appellant in Noles v. State, 24 Ala. 72. It was again raised in Elam’s Case, (25 Ala. 53), and this court disposed of it in this language: “The indictment in this case is drawn in strict conformity with the directions given in the Code (§ 1059) and is, therefore, sufficient. Under such an indictment, the defendant may be called on to answer for any violation of the law concerning retailing which may be proved against him on the trial. We have already held, upon the fullest consideration, that when the Code prescribes a form, or specially directs what shall be charged in an indictment for a particular class of offenses, the proper course is for the pleader to adopt the form or pursue Hie special directions thus given. Noles v. State, at the present term.”

In Cochran v. State, 30 Ala. 546, it was said: “Section 3503 of the Code expressly sanctions the manner of stating the act constituting the offense, as set forth in that form; and it gives a like sanction to the other forms in the appendix in all cases where they , are *124applicable. The sufficiency of those forms, in cases for which they were designed, have been deliberately asserted by our predecessors and is not now considrecl an open question. — Noles v. State, 24 Ala. 672; Elam v. State, 25 Ala. 53.”

It is scarcely necessary to say more. These cases settle beyond further controversy the sufficiency of the indictment. However, see cases collected in 1 Mayfield’s Dig. p. 422, § 11. The demurrer was properly overruled.

After the demurrer was overruled, the defendant moved the court to require the solicitor to furnish him -with a bill of particulars showing the time and place of the sale, etc. of the liquor and the name of the person to whom the sale etc. was made. In support of the motion an affidavit made by defendant was filed in which he deposed to his ignorance of the time and place and the name of the purchaser etc. etc. The court overruled the motion to which an exception was reserved. The following cases are cited in support of defendant’s right to the bill of particulars: Williams v. Com., 91 Pa. St. 493; Com. v. Snelling, 15 Pick. (Mass.) 329; People v. McKinney, 10 Mich. 54, and Rex v. Hodgson, 3 Carr. & P. 422. It must be conceded that they recognize his right to it, but in each of them, except, the English case, they say it is a matter within the sound discretion of the trial court, and in the Pennsylvania and Michigan cases, a doubt is expressed as to whether the refusal of the trial court to order the bill is revisabie. In the Massachusetts case, the court granted the motion, which was made by the State, and it was held to have been properly granted. The report of the English case was of the trial at nisi prim. Whatever may be the practice in those jurisdictions with respect to demanding a bill of particulars in criminal cases and the right to review the action of the trial court, the practice has never prevailed in this State, and we would be unwilling to introduce into it such an innovation even if there was no precedent against it. But the practice allowed to obtain in these cases is by no means universal. In other *125jurisdictions it is repudiated.— The State v. Williams, 14 Tex. 98; The State v. Quinn, 40 Mo. App. 627; The Com. v. Moore, 2 Dana (Ky.), 402; U. S. v. Ross, 1 Morris (Iowa), 164. And in this state we have, in the case of Elam v. State, 26 Ala. 48, a precedent against it. In that case, the defendant as here, was indicted for retailing liquor without license. The indictment was in the Code form. Before any evidence was introduced, the defendant moved the court that the solicitor be required to state and elect for which of the three offenses of retailing the defendant was to be tried. The motion was overruled. This court said: “We' see no error in the action of the court overruling the motion made by defendant below to require the solicitor to state in advance for which of the different varieties of retailing he was to be proceeded against. The indictment, it is true, is general in form, but its sufficiency was determined when this case was last here (25 Ala. 53); but the fact that it is general and broad enough under the Code to allow evidence of any violation against the law of retailing is not a sufficient reason for requiring the prosecuting officer to state before hand the particular offense he intends to prove.”

The writer entertains the opinion that the defendant should have been allowed to prove that Otts kept whiskey in the locker to which he had a key. It was a circumstance which he had a right.to have go to the jury. It tended in some degree, when taken in connection with all the testimony, to show that’ the bottle of whiskey that the State’s witness saw Otts have, belonged to him and not to defendant, and, furthermore, it tended to repel the adverse inference that might be drawn from the fact, thajfc Mark Otts came out of defendant’s room with the bottle of whiskey which it is charged that he purchased from defendant. The other members of the court do not concur in this view, and hold that the testimony was inadmissible.

We all concur, however, in the opinion that the court committed an error in excluding the remarks of defendant’s counsel made in his argument to the jury. They were not illegal; involved no statement of fact; but were a mere inference from the testimony which *126counsel bad, in our opinion, a right to argue. Whether logical or illogical is immaterial. — Lide v. State 133 Ala. 62, 63, and cases cited.

Reversed and remanded.