Tarkins v. The State

Tarkins v. The State. Prohibition Law. 1. Violating Prohibition Law; indictment. — An indictment charging that the defendant gave away or delivered spirituous, vinous or malt liquors, or intoxicating bitters, against the peace and dignity of the State, without the further allegation that the act was contrary to law. is insufficient. Appeal from Chambers Circuit court. . Tried before Hon. N. D. DeNSON. • The only question raised hy this appeal is upon the sufficiency of the second count of the indictment, which is thus written “The grand jury of said county further charge that before the finding of this indictment, Tarkins, whose given name is to the grand jury unknown, gave .away or delivered spirituous, vinous or malt liquors, or intoxicating bitters within precinct seven, in said county, against the peace and dignity of the State of Alabama.” To this count the defendant demurred, and his demurrer being overruled, he went to trial on plea of not guilty. Being convicted, he appeals from the ruling of the court upon his demurrer. k Dowdell & Duke, for appellant. W. C. Fitts, Attorney-General) conira. [MAJORITY — BRICKELL, C. J.] BRICKELL, C. J. The single defect in the second count of the indictment, is, the omission to aver that the sale, gift, or delivery of the liquor, or intoxicating bitters, was ‘ ‘contrary to law.” This averment is found in the form prescribed by the Code, and without it, the courtfis not informed that each of the alternatives stated in the count, is an indictable offense. — Williams v. State, 91 Ala. 14. There was error in overruling the demurrer to this count. The judgment is reversed and the cause remanded, but the defendant will remain in custody until discharged by due course of law.