(dissenting):
I would affirm the judgment of the Court of Criminal Appeals. I concur in the opinion and the extended opinion on rehearing which the Court of Criminal Appeals filed in this case.
In Alabama we do not have bills of particulars or any discovery procedure in *700criminal cases; however, a defendant has a right to know the nature and the cause of the accusation against him in a criminal case. It is established that this is supplied through an indictment or information in felony cases.
It is interesting to observe that the State of Alabama, through the Attorney General’s Office, admitted in oral arguments that the defendant was entitled to know the name of the vendee in this case. However, the State' of Alabama argued that this court should establish in this case a rule of law which provides the defendant with the right on motion to discover the name of the vendee as a part of “due process.” In this case there was no such motion and, therefore, there is no opportunity for this court to give consideration to the alternate approach urged by the State.
Title 15, Section 232, Code of Alabama, 1940, as amended (Recompiled 1958), establishes the requisites of an indictment in general.
“§ 232. Statement of offense. — The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment; and in no case are the words ‘force of arms’ or ‘contrary to the form of the statute’ necessary.”
However, section 230 of the same title provides that the forms prescribed by the Legislature are sufficient where applicable:
“§ 230. Forms in code sufficient.- — -The manner of stating the act constituting the offense, as set forth in the forms given in article 7, of this chapter, is sufficient in all cases in which the forms there given are applicable; in other cases, forms may be used as near similar as the nature of the case and the rules prescribed in this chapter will permit.”
The court has gone to extremes in holding “that when the legislature, either in the body of a statute, or in a furnished form, has declared what shall be sufficient indictment, such legislative direction is controlling, and an indictment following such form will be pronounced good.” Smith v. State, 63 Ala. 55 (1879). Thus, if a form is provided by the legislature, the indictment will be held good even though the indictment fails to aver some material element of the offense charged, subject to the constitutional requirement that the accused is to be informed of the nature and cause of the accusation.
“The power of the Legislature to prescribe the form of indictment is part of its general legislative power. Broadly speaking, it is curtailed only by constitutional limitations, such as the right of the accused to be informed of the nature and cause of the accusation, and to have a copy of same. Bill of rights, § 6.
“The indictment must reasonably disclose an offense known to the law in force during the period covered thereby, and reasonably inform the accused of the accusation he is called upon to answer. Subject to these qualifications, statutory forms have from our early jurisprudence been held sufficient, although facts essential to a conviction may be omitted. Noles v. State, 24 Ala. 672, 692; Schwartz v. State, 37 Ala. 460, 466; Doss v. State, ante, 220 Ala. p. 30, 123 So. 231.”
Jinright v. State, 220 Ala. 268, 125 So. 606 (1929)
It would appear then that all of the form indictments for selling prohibited liquors, sales by unregistered dealers, etc. which do not purport to name the vendee are sustained under the rationale set out above, that is, since the form meets the basic constitutional requirement, it is sufficient because the legislature says so even though all material elements of the offense, i. e., the buyer, are not set out.
*701When there is no Code form for an offense, however, this court has taken a different approach. In Smith v. State, 63 Ala. 55 (1879), the defendant was indicted under a Code section for which no form had been provided. The indictment did not contain all the material elements of the offense charged, but did aver every material fact contained in a form for a similar offense, though in different language. In a well reasoned opinion the court concluded:
“We think the only safe rule is to require that, when the indictment is not framed on any form given in the Code, it shall aver every material constituent of the offense; always excepting the statement of venue and of time.”
Moreover, even where the indictment substantially follows the language of the statute, if the statute does not prescribe with definiteness the elements of the offense, the indictment is invalid. In Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (1946) this court stated:
“It is conceded by the state that the indictment in the case at bar is drawn pursuant to § 103, Title 14, Code of 1940., There is a line of cases in this state which declares the general rule that an • indictment which substantially follows the language of the statute is sufficient. But it is equally well settled that this rule does not apply when the statute does not prescribe with definiteness the constituents of the offense. Wester v. State, 147 Ala. 121, 41 So. 969; Collins v. State, 28 'Ala.App. 400, 185 So. 779; Doss v. State, 23 Ala.App. 168, 123 So. 237; Id., 220 Ala. 30, 123 So. 231, 68 A.L.R. 712; State v. Dodd, 17 Ala.App. 20, 81 So. 356; Miles v. State, 94 Ala. 106, 11 So. 403.” (Emphasis added)
For a summary of cases holding an indictment bad which followed the wording of the statute, see, Gayden v. State, 38 Ala. App. 39, 80 So.2d 495 (1954).
The statute in the instant case does make the selling of marijuana a criminal offense, but does not spell out the elements of the offense. It would seem that the elements would be (1) a seller, (2) the transaction, (3) the prohibited substance, and (4) the party who purchased the substance. The act of selling by its very nature requires these elements as a minimum. There must be a buyer as well as a seller. Since the buyer must be proved, it stands to reason that he should also be named in the indictment just as the other elements of the offense are.
In conclusion it would seem that in Alabama where there is a Code form provided for a selling offense, the identity of the buyer need not be named, even though it is an element of the offense charged and must be proved; this because of this court’s position with regard to Code forms. But where there is no Code form Section 232 applies, and every material element of the offense must be averred and proved, and failure to aver a material element of the offense should render the indictment demurrable.
Therefore, I respectfully dissent.