Opinion
8 Div. 679.
March 22, 1938. Rehearing Denied April 5, 1938.
Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.
Mike Gideon was convicted of operating a gambling device, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Gideon v. State, 236 Ala. 126, 181 So. 127.
The indictment charges that the defendant "did possess, keep, own, set up, operate, or conduct, or permit to be set up, operated or conducted a gambling device, towit: a machine mechanical device, contrivance, appliance, or intervention, in the use of which a consideration was paid or deposited, and there was gambling or the hazarding of small amounts of money or property to win larger amounts of money or property, against the peace and dignity of the State of Alabama."
The defendant demurred to the indictment upon the grounds, variously stated, that the alleged device is not so named or described as to show it is such a device as is prohibited by law; that it does not aver facts to show it was unlawful for defendant to possess, keep, or own same; and that the indictment is in the alternative, and some of the acts charged are innocent acts.
Motley Motley, of Gadsden, for appellant.
Alternative averments in an indictment should each charge an indictable offense. State v. Nix, 165 Ala. 126, 51 So. 754; Horton v. State, 53 Ala. 488, 493; Hornsby v. State, 94 Ala. 55, 10 So. 522; Raisler v. State, 55 Ala. 64; Doss v. State, 23 Ala. App. 168, 123 So. 237; Griffin v. State, 22 Ala. App. 369, 115 So. 769; Watson v. State, 140 Ala. 134, 37 So. 225; Hill v. State, 145 Ala. 58, 40 So. 654; Abercrombie v. State, 8 Ala. App. 326, 62 So. 966. Where statutory language may include innocent acts, it is not sufficient to charge an offense in the language of the statute alone, where by its generality it may embrace acts which it is not the intent of the statute to punish. Doss v. State, supra; Mosby v. State, 98 Ala. 50, 13 So. 148; 31 C.J. 713; Hill v. State, 120 Ala. 392, 24 So. 929; Miles v. State, 94 Ala. 106, 11 So. 403; Wester v. State, 147 Ala. 121, 41 So. 969.
A. A. Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
The indictment substantially in the language of the statute is sufficient. Hurvich v. State, 230 Ala. 578, 162 So. 362; Owens v. State, 52 Ala. 213; Harris v. State, 31 Ala. 362; Id., 33 Ala. 373; Bobel v. People, 173 Ill. 19, 50 N.E. 322, 64 Am.St.Rep. 64; Code 1923, § 4527; Bibb v. State, 83 Ala. 84, 3 So. 711; 27 C.J. 1027; Sterne v. State, 20 Ala. 43.
As said by Judge Samford for this court in the opinion in the case of Masters v. State, 18 Ala. App. 614, 94 So. 249, certiorari denied Ex parte Masters, 208 Ala. 699, 94 So. 922: "The general rule is that when a statute creates a new offense, unknown to the common law, and describes its constituents, the offense may be charged in the statutory language."
The indictment here follows, literally, so far as we can see, subsection (a) of section 1 of the act of the Legislature approved July 25, 1931, Gen. Acts Ala. 1931, p. 806, in describing the gambling device the possession of which is denounced by section 3 of the same act, page 807. The demurrers were properly overruled. Code 1928, § 4529.
There is no bill of exceptions. And we see no other question requiring discussion.
The judgment is affirmed.
Affirmed.