BROADUS v. UNITED STATES

BROADUS v. UNITED STATES. Circuit Court of Appeals, Fifth Circuit. February 5, 1929. No. 5376. S. C. Mize, of Gulfport, Miss., for appellant. E. E. Hindman, U. S. Atty., and H. Cassedy Holden, Asst. U. S. Atty., both of Jackson, Miss. Before WALKER, BRYAN, and FOSTER, Circuit Judges. Rehearing’ denied March 25, 1929. [MAJORITY — FOSTER, Circuit Judge.] FOSTER, Circuit Judge. An indictment was returned which, charged appellant in three counts with the sale of intoxicating liquor. The counts are in practically the same language. The first count, so far as is necessary to quote, is as follows: “Alonzo Broadus did knowingly, willfully and unlawfully sell intoxicating liquor, to wit, whisky, said sale being then and there prohibited and unlawful.” A general demurrer was overruled, and appellant was put on trial and convicted. Error is assigned to the overruling of the demurrer. We have heretofore pointed out that, in charging a sale of intoxicating liquor for beverage purposes in violation of the National Prohibition Act (27 USCA), it is essential to allege that the intoxicating liquor was sold for beverage purposes and to not leave that important element, necessary to constitute the sale an offense, to conjecture. To say that the liquor was whisky is enough to show the alcoholic content, but to say that it was sold unlawfully or that the sale was prohibited is a mere conclusion of the pleader. Brown v. U. S. (C. C. A.) 21 F.(2d) 827; Middlebrooks v. U. S. (C. C. A.) 23 F.(2d) 244. The demurrer should have been sustained and the indictment dismissed. It is unnecessary to consider the other errors assigned. Reversed.