(dissenting).
The opinion which follows, except for the last five paragraphs, was prepared as the opinion of the Court, but it was not accepted by the majority.
The defendant was convicted of violating ■§ 255, Title 22, Code of 1940, as amended, which is a part of the Narcotic Drug Act. The Court of Appeals held that the demurrer to Counts 5 and 6 of the indictment ■should have been sustained. The State filed a petition for certiorari to have that ruling reviewed by this Court and we grant■ed the writ.
The Court of Appeals held Counts 1, 2, 3, ■4 and 7 of the indictment good as against demurrer, following the case of Coshatt v. State, 37 Ala.App. 422, 69 So.2d 877, which is exactly in point, and other cases cited. 'The sufficiency of those counts is not now before us.
The question presented to us relates to that part of the opinion of the Court of Appeals which holds that Counts 5 ■ and 6 were subject to demurrer 'because “The indictment * * * in no manner or means apprised the accused of the specific offense which he was- called on to defend, nor did it .give him any'sort of notice of. the circumstances upon which the prosecution was based.” . ■ .
The pertinent part of the statute, Code of 1940, Title 2’2, § 250/ Pocket íárt, reads: “Any person who possesses, sells, furnishes, or gives away any cocaine, alpha or beta eucaine, opium, morphine, heroin, or isoni-pecaine contrary to the provisions, of this chapter, or obtains or attempts to obtain a narcotic drug by fraud, deceit, misrepresentation or subterfuge,, or by the forgery or alteration of a prescription .or written order, or by the concealment,of a material fact, or by the use of a false name or the giving of a fqlse address, is guilty of .,a felony, and upon conyiction for the first offense shall be .imprisoned .for not,less than two nor more than five years. *. * * ,
Counts 5 and 6 of the indictment were identical except that, count 5 identified the drug as opium- and count 6 substituted the word “morphine” for opium. Count 5 charged that the defendant “did obtain a narcotic drug, to-wit: opium, by fraud, deceit, misrepresentation or subterfuge, or by the forgery or alteration of a prescription or written order, or by the concealment of a material fact, or by the use of a- false name or the giving of a false address.”
Generally speaking there are three types of crimes under the laws of this State. They are:
1. Crimes against persons, examples of which are murder, assaults, rape, defamation, etc.
2. Crimes against persons and property, examples of which are 'robbery, larceny, false pretense, trespass by cutting timber, etc. . -
3. Crimes against, the public, examples of which are gaming, violating the prohibition laws, . practicing law, medicine, or dentistry without a .license, vagrancy, and one like the' ■ case,- at bar, violating the narcotics law. ^Of.course, as stated in Wharton’s Criminal Law, Vol. 1, § 14, “All crimes *476are crimes against the public. But crimes directly affecting persons or individuals are uniformly considered crimes against such person or individuals.” Wherever in this opinion we refer to crimes against the “public” we are referring to the third type of crime listed supra as distinguished from crimes directly affecting persons or persons and property.
Counts 5 and 6 literally follow the language of the statute, and as stated in the opinion of the Court of Appeals, the general rule is that an indictment which substantially follows the language of the statute is sufficient. 12 Ala.Digest, Indictment & Information, <®=::>110(3). However, after recognizing the general rule, the Court of Appeals cites every case listed in Indictment & Information, ®=3110(4) as exceptions to the general rule, except the case of Mitchell v. State, 248 Ala. 169, 27 So.2d 36, and Collins v. State, 28 Ala.App. 400, 185 So. 779 (Pocket Part), and that court, as well as we, recognize that they are not applicable to the question before us. It is fitting that we consider the cases cited in the opinion as exceptions, and as we shall demonstrate, there is a scarcity of cases where the offense was one against the “public”. But first we note a few code sections from the Code of 1940, Title 15:
Sec. 231. “An indictment must not be ■ held insufficient, nor can the trial, judgment, or other proceedings thereon, be affected by reason of any defect or imperfection in any matter'of form which does not prejudice the 'substantial rights of the defendant on the trial.”
Sec. 244. “When an intent to injure or defraud is necessary to constitute the offense, it is sufficient to allege an intent to injure, or defraud generally, without naming the particular person, corporation or government intended to be injured, or defrauded.”
Sec. 247. “When the offense may be committed by different means, or with different intents, such means or intents may be alleged in the same count in the alternative.”
Sec. 249. “When offenses are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative.”
We now proceed to analyze the cases cited in the opinion of the Court of Appeals. The case of State v. Brown, 1837, 4 Port. 410, was decided on the point that the indictment failed to follow the words of the statute. The court said: “The indictment in this case not conforming to the terms of the statute defining the offense, the court below should have arrested the judgment.” The statement quoted in the opinion of the Court of Appeals was not necessary for a decision in that case.
The case of Turnipseed v. State, 1844, 6 Ala. 664, wherein the indictment was for inflicting cruel punishment upon a slave and was thus a crime against a person,, was like the Brown case, supra, decided prior to the adoption of the chapter on indictments, which first came into the Code of 1852.
The indictment in Anthony v. State, 1856, 29 Ala. 27, charged “That Anthony, a slave, the property of Elias G. Hodges, did attempt to poison Elias G. Hodges, a white person, and Mary C. Hodges, a white person.” The statute is set out in the first sentence of the opinion and a reading of it -shows that the indictment did not follow 'the language of the statute.
In Carter v. State, 1876, 55 Ala. 181, the indictment was for illegal voting. The Court of Appeals is correct that this court held the indictment “should have shown that the election was one for county and state officers.” But that averment was necessary if the statute was to be followed, because the statute, Code of 1867, § 211, stripped of qualifications said: “Every white male citizen of age of 21 years ***is***a qualified elector, and may vote * * * for all officers elective by the people.” Emphasis supplied. The court said: “The indictment ought to have shown that the election (general or special) was one for county or state officers or for what officers it was held.”
*477The indictment in Grattan v. State, 1882, 71 Ala. 344, attempted to charge an offense against person and property and the court correctly held that the ownership of the seed cotton which had been bought or the name of the vendor should have been alleged.
The next case cited is Watt v. State, 97 Ala. 72, 11 So. 901. That case holds that the indictment, drawn in identical compliance with the statute, was not subject to demurrer.
The charge in Miles v. State, 1891, 94 Ala. 106, 11 So. 403, was for defamation, which is an offense against a person. The court correctly ruled that the original affidavit was “insufficient to authorize thé issue of a warrant of arrest.”
In the case of Jackson v. State, 1938, 236 Ala. 75, 182 So. 83, the indictment charged that the accused, “ ‘did possess, keep, own, set up, operate, or conduct, or did permit to be set up, operate, or conducted, a.gambling device, contrary to law.’ ” The Court of Appeals had said:
“A general form of indictment, like that here presented, would not with any degree of certainty inform the accused of what was intended. The only information it affords him is that he is accused generally of some offense; there is nothing in the count of the indictment tending in the least to meet the mandatory and necessary requirement of the Constitution, statute, supra (§ 6, Constitution of 1901; § 4529, Code of 1923 [Code 1940, Tit. 15, § .232]), and the uniform holdings of the appellate courts.” [Parenthesis supplied.] Likos v. State, 28 Ala.App. 231, 182 So. 81, 82, certiorari granted 236 Ala. 77, 182 So. 82.
The Court of Appeals reversed both the Likos and the Jackson cases. On certiorari this Court said:
“The indictment follows substantially the language of the statute, and though it is subject to the demurrable defect that it does not with certainty to a particular intent describe the gambling device, it charges every element of the offense, and does not embrace an act not denounced by the statute, and is sufficient, in the absence of appropriate objections, to support the judgment of conviction. Gaines v. State, 146 Ala. 16, 41 So. 865; Hornsby v. State, 16 Ala.App. 89, 75 So. 637. * * *
“An indictment, to be free of demur-rable defects, should describe the gambling device by name, or in the language of one of the subdivisions of section 1 of the act. [Code 1940, Tit. 14, § 283] * * Jackson v. State, 236 Ala. 75, 182 So. 83.
This Court remanded both cases to the Court of Appeals whereupon they were both affirmed.
The offenses charged in the Jackson and Likos cases, supra, were offenses against the “public”. The averments were in the alternative and no facts were set out. There is no contention in the instant case that the indictment fails to describe sufficiently or completely the narcotic which the defendant is alleged to have fraudulently obtained.
In Cheshire v. State, 1913, 8 Ala.App. 253, 62 So. 994, the indictment attempted to charge false pretense in securing money from an insurance company. We are impressed with and concur in the final statement in the short opinion of the court: “In fact, it [the indictment] is not (as set out in the record) an intelligible statement of any offense.”
The indictment in State v. Dodd, 1919, 17 Ala.App. 20, 81 So. 356, followed the language of the statute and thé Court of Appeals reversed the order of the lower court sustaining a demurrer to the indictment, even though the offense charged was against a person and property.
In the case of Jackson v. State, 1952, 36 Ala.App. 466, 58 So.2d 901, 902, the Court of Appeals held that the indictment charging malicious injury to property without stating the name of the owner of the property was demurrable. It was also said:
“The statute as drawn is for the protection of the interest in property of *478another person. While its tendency is to protect all property, the essential aim is for the protection of private interests in property. See Johnson v. State, 18 Ala.App. 70, 88 So. 348.
“When injury to the property of another is the offense charged, a material averment of the accusation is, the identity of the owner. Such principle has been repeatedly enunciated in the .opinions of this State. (Citing cases.)”
The indictment in Bazzell v. State, 1919, 16 Ala.App. 663, 81 So. 183, .was for false pretense, an offense against persons and property. It did not follow the form prescribed by the statute. It charged the false pretense as having been made to one Wilson to get fertilizer from a fertilizer company • or one Narramore, and the court pointed out the defect in the sentence following that-part of the'opinion quoted in the opinion of'the ’ Court of Appeals, viz.: “Where the indictment alleges that the false pretense was made to one person and that the goods were obtained' from another, it is subj ect to demurrer, unless it shows' some relation between the person to whom the pretense was made and the other, with reference to the title or possession of the goods.”
In Addington v. State, 1916, 16 Ala.App. 10, 74 So. 846, 851, the court said: “The indictment is not subject to demurrer because several matters are alleged as false pretenses, some of which'constitute false pretenses within the statute, and others do not. ,The averments as to those not within the statute will be treated as surplusage, unléss 'they are descriptive averments. * * * ”
It was held in Jones v. State, 1937, 28 Ala.App. 254, 182 So. 402, another false pretense case, that the counts in the indictment followed the code form and the demurrers to each were properly overruled.
- .'The case of Holloway v. State, 37 Ala.App. 96, 64 So.2d 115, certiorari denied 258 Ala. 558, 64 So.2d 121, holds that the State failed to prove the material allegations of the indictment for false pretense and the defendant was due the general affirmative •charge.-’- •.
We now consider some of the cases dealing principally with crimes against the “public”- where the indictment did follow the words of the statute.
In Allen v. State, 33 Ala.App. 70, 30 So.2d 479, 481, the accused was indicted for selling adulterated milk which is prohibited by § 188, Title 2, Code of 1940. The indictment charged that the accused “ ‘did sell an article of; food, namely, milk, which was adulterated in that. it contained added water, contrary to Title 2, Section 306 of-the Code of Alabama 1940.’ ” The Court of Appeals held that the incorrect reference to the code ' section in the count was surplusage but the count “adequately informed the accused of the offense he was charged with committing, "and the court properly overruled the demurrers thereto.”
In Finley v. State, 28 Ala.App. 151, 181 So. 123, 124, the indictment charged five defendants with violating § 596, Code of 1923, of the Corrupt Practice Act, § 282, Title 17, Code of 1940. Twenty-five grounds of demurrer were held properly overruled and the court said:
“(2) The statute, supra, created a new offense, unknown to the common law, and describes its constituents, and the indictment, as we see it, charges the offense in the language of the statute, and sets out all the statutory elements creating the offense, and every necessary fact which was an ingredient thereof. It is not required that an indictment shall set up the proof necessary to a conviction; it has many times been held, it is sufficient if it charges the offense in the language of the statute.”
The indictment in Gideon v. State, 28 Ala.App. 177, 181 So. 126, charged that the accused “ ‘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,’ ” etc. •
*479The defendant demurred that the alleged device is not named or described to show that it is such a device as prohibited by law; that it does not aver facts to show that it was unlawful for the defendant to possess it; “that the indictment is in the alternative, and some of the acts charged are innocent acts.” The Court of Appeals said, after quoting the general rule:
“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 [Code 1940, Tit. 14, § 283], in describing the gambling device the possession of which is denounced by section 3 of the same act, page 807 [Code 1940, Tit. 14, § 284], The demurrer was properly overruled. Code 1928, § 4529 [Title 15, § 232, Code of 1940].”
In Harris v. State, 28 Ala.App. 528, 189 So. 787, 789, it was charged that the defendant “ ‘did (set up) carry on, or was concerned in setting up or carrying on a lottery or device of like kind (or gift enterprise), or a scheme in the nature of a lottery (or gift enterprise) ; or did sell or dispose of a lottery or gift enterprise ticket, or ticket in a scheme in the nature of a lottery (or gift enterprise; or did receive money or take an order for a lottery or gift enterprise) ticket, or ticket in a scheme in the nature of a lottery (or gift enterprise) or was interested or concerned in selling or disposing of a ticket in a lottery (or gift enterprise), or a scheme, in the nature of a lottery (or gift enterprise), or did act for or represent another person in selling or disposing of such a ticket, against’ ”, etc.
The Court of Appeals said:
“We find there was no error in the action of the court in overruling the demurrers, as the complaint filed by the Solicitor substantially followed the wording of the section of the Code upon which the prosecution was based. The complaint was in one count and charged in the alternative the several offenses denounced and made unlaw•ful by- the statute.” The statute -was § 4247, Code of 1923, Title 14, § 275, Code of 1940.
The conviction was affirmed.
The indictment in Davis v. State, 16 Ala.App. 149, 75 So. 825, 826, was for train, wrecking. The Court of Appeals said:. “The several counts in the indictment follow almost literally the words of the statute. Acts 1911, p. 381. The demurrers, thereto were properly overruled.”
In Thomas v. State, 156 Ala. 166, 47 So. 257, 258, the indictment charged that the defendant “ ‘willfully administered to. Onether Crawford, who was a .pregnant .woman, a drug or substance, or used or employed an instrument, to procure her miscarriage; the same not being necessary to preserve her life, and not done for that purpose, against’ ”, etc.
Judge Anderson wrote;
“ * * * in cases where the statute, not only prescribes a punishment but also defines the offense, notwithstanding a similar offense existed at common law, we think the indictment would be sufficient if the offense is. described in the language of the statute- or in words conveying the same meaning. Section 4898 of the Code of 1896;: Clark v. State, 19 Ala. 552. Speaking of indictments for this identical' crime,-Mr. Bishop in his work on Statutory Crimes (section 754), says:: ‘Follow the statute. — This rule is specially safe and in most instances sufficient, in various forms of the offense now under consideration. Rarely will the allegations require expansion beyond the statutory terms.’ We do not think it -necessary to name'the .'drug or instrument, .nor’ to- aver- how the drug was administered or the instrument was used.”
In Riley v. State, 32 Ala.App. 180, 23 So.2d 10, 11, the accused was . charged with violating the Alabama Food and Drug-Act, Code of 1940, Title 2, Article 18, § 304. Twenty-seven gro.unds of demurrer were overruled. The. Court of Appeals, said:
*480"(1) All that seems necessary to be said is, that so far as we can discern, the complaint on which appellant was put to trial substantially followed the wording of the Statute denouncing the offense. And this, according to numerous decisions of this court, is sufficient. * * * The demurrers to the complaint were overruled without error.”
The indictment in Clark v. State, 21 Ala.App. 207, 106 So. 872, under Title 29, § 131, charged that the accused “ ‘did manufacture, sell, give away, or have in possession a still, apparatus, appliance, or device or substitute therefor, to be used for manufacturing prohibited liquors or beverages, against’ ”, etc.
The grounds of demurrer were that the indictment is vague and uncertain, failed to inform the defendant of the offense with which he is charged and the indictment failed to describe the still, apparatus', appliance, or device, or substitute therefor and that it charged no offense. The Court of Appeals said: “Demurrers were interposed to count 2, but were overruled, and properly so.”
The indictment in Porter v. State, 20 Ala.App. 74, 101 So. 97, 98, charged distilling and possession of a still. The court said: “(2) The demurrer to the indictment was properly overruled. Each of the two counts of the indictment followed substantially the language of the statute defining the offense, and was sufficient.”
Nix v. State, 27 Ala.App. 94, 166 So. 716, 717, while not strictly a case in which a “public” offense was involved, was concerned with the giving of a worthless check but the complaint did not set the check out verbatim. The court said:
“We are of the opinion that the affidavit is sufficient in form and substance. It not only substantially follows the language of the statute, which of itself is sufficient, Oliver v. State, 16 Ala.App. 533, 79 So. 313, and cases cited; but it also states the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which would enable the court, on conviction, to pronounce the proper judgment.”
In Jordan v. State, 26 Ala.App. 122, 156 So. 642, the court said:
“Appellant was indicted for a violation of the provisions of Code 1923, § 3465 (Code of 1940, Title 14, § 72), viz. demanding money for his vote or official influence, etc., as a member of the Legislature, etc. * * * Each of the five counts of the indictment followed substantially the language of the Code section named; and all of the demurrers interposed were properly overruled.” [Parenthesis supplied.]
Perhaps we should mention some of our code forms. There is no particular magic about one of these forms. The legislature merely prescribed a short, acceptable statement of pleading to be used in indictments for certain offenses. This court said in Jinright v. State, 220 Ala. 268, 125 So. 606, 607,
“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. * * * ”
Thus we see that Section 6 of the Constitution of Alabama guarantees the right of the accused to be informed of the nature and cause of the accusation and it is *481said in the opinion of the Court of Appeals that the counts under consideration “in no manner or means apprised the accused of the specific offense which he was called on to defend.”
Our code forms of indictment are found in Code of 1940, Title IS, § 259. In the light of the constitutional requirement and the objection in this case as to lack of information, we mention four forms, all of which deal with “public” offenses.
Form 22. — Betting with a minor: “A. B., being of full age, bet with C. D., a minor.” The statute, § 268, Title 14, contains several alternatives.
Form 71. — Lotteries: “A. B. set up, or was concerned in setting up or carrying on, a lottery.” The statute, § 275, Title 14, is very comprehensive and the word “or” is used at least 25 times.
Form 85. — Physicians: “A. B. did practice medicine or surgery without a license and contrary to law.” The accused is not informed as to whom he may have treated or offered to treat, what system of treatment he is charged with using, whether he is charged with having written prescriptions and if so, how many, or where it was, or what act or acts are charged to him, but we have used the form for many years.
Form 111. — Vagrants: “A. B. was a vagrant.” The statute, § 437, Title 14, contains 13 subdivisions, proof of any one of which will support a conviction for vagrancy. The accused would not be informed, for example, as to whether he was charged with being an able-bodied idler, a bootlegger, a drunkard, a professional gambler, a beggar or a prostitute, but the indictment in the words of the form has been held good where it was urged that it violated the Constitutions of Alabama and of the United States.
We have read many cases from other jurisdictions but find that they are of little help when it comes to deciding a question which is essentially one of the proper form of pleading in this state. For example, § 422 (now § 3305) of the Public Health Law of New York, McK. Consol. Laws, c. 45, which is the same as our § 254, Title 22, provided:
“Acts prohibited. It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this article.”
The charge was that the defendant “ 'unlawfully did possess and have control of a certain narcotic drug.’ ” In the face of objections that no crime was charged and that it was not alleged what narcotic drug was possessed, five members of the court held:
“The information sufficiently stated the crime, giving the defendant notice that he was charged with having in his possession a narcotic drug.” People v. Lee Foon, 275 N.Y. 229, 9 N.E.2d 847.
In New Mexico, where the statute is practically identical with ours, the form for indictment for false making of a prescription is, “That A. B. did falsely make (or alter) a prescription for a narcotic drug” and for uttering a false prescription, “That A. B. did utter and publish as true a certain false prescription for a narcotic drug, well knowing the same to be falsely made (or altered).” Vol. 8, New Mexico Statutes 1953, § 54-7-40. We do not cite these indictments with approval but merely to demonstrate the divergence in the requirements of some states and the contrast with the model from Nevada which appears in the opinion of the Court of Appeals.
The Supreme Court of Florida had trouble with the question of an indictment under their Uniform Narcotic Drug Act, F.S.A. § 398.01 et seq. In the case of Simpson v. State, 129 Fla. 127, 176 So. 515, 517, the defendant was charged with unlawfully selling “ ‘eight cigarettes containing cannabis, from which the resin had not been extracted.’ ” The defendant urged in his motion to quash the indictment that the indictment charged no offense, the allegations were so vague and indefinite as to *482mislead him and expose him to the danger of another prosecution for the same offense, and the allegations were insufficient to charge a violation of the Uniform Narcotic Drug Act. The court first said:
“The defendant is entitled to be informed of the nature and cause of the accusation against him. Section 11, Declaration of Rights of Constitution; (Citing cases).
“The above authorities hold to the doctrine that unless the information or indictment charge the accused with the offense clearly and sufficiently so that he may know the nature and cause of the accusation against him he is entitled to his discharge.
“While ordinarily it is sufficient in an indictment or information to charge an accused with the offense in the language of the statute denouncing such offense, yet unless the words of the act are self-explanatory, the facts and circumstances which constitute the definition of the offense charged must be alleged in the indictment or information so that the accused may be advised of the nature and cause of the accusation against him. (Citing cases.)
“We are of the opinion therefore that the information was insufficient to clearly apprise accused of the nature and cause of the accusation against him because of the sale of cigarettes containing cannabis from which the resin had not been abstracted may relate to the resin of the staminate plant, the resin of which appears to be harmless.
“Judgment reversed.”
But on rehearing the court said:
“We have examined the authorities cited in connection with the legal insufficiency of the indictment and fail to find reversible error committed by the lower court in entering the order overruling the motion to quash. * * *
“It seems that substantial justice was awarded in the court below, and the judgment appealed from is hereby affirmed.”
There are few if any crimes against the “public” which have more serious consequences than the illegal traffic in and peddling of narcotic drugs. The legislature enacted a law against the evil using ordinary understandable language. The act is comprehensive but not nearly as extensive as some other statutes governing “public” offenses, indictments for which we have held sufficient over and over again when the language of the statute was followed. It has never been required in this, state that proof need be pleaded in the indictment. We think the following statement in the opinion aptly shows wherein the Court of Appeals erred in holding Counts 5 and 6 to be insufficient.
“We need not cite any of the numerous authorities which hold that in prosecutions for forgery the instrument alleged to have been forged must be set out in the indictment either in haec verba or according to its legal tenor or effect.”
The appellant is not charged with forgery which in this state consists of three degrees. The charge is. obtaining a particular narcotic drug under a section of our Uniform Narcotic Drug Act, penalizing the obtaining of this narcotic drug by certain means, one of which is the forgery or alteration of a prescription or written order. The indictment charges one crime and the various acts set out in the indictment constitute the manner and way in which the accused allegedly committed said crime.
The indictment meets the requirement of § 232, Title 15, Code of 1940, which is cited by the Court of Appeals.
The Code of 1940 deals with Indictments in Title 15, Chapter 11. Practically all of the sections, 227 to 259 inclusive first were codified in the Code of 1852. Some of the sections have been set out supra. It is obvious that the legislative intent for over 100 years has been to simplify our form of *483pleading in indictments. It is a well-established rule of construction that even as to penal statutes, we should carry out the obvious intent of the legislature to be gathered from the words of the law; and the particulars as to time, place and circumstance, not constituting essential elements in the crime, may be dispensed with in the indictment by the statute and be left as matter of proof. Noles v. State, 24 Ala. 672. In Rivers v. State, 97 Ala. 72, 12 So. 434, this Court said: “We have held that under our system of pleading ‘Indictments are rather a statement of legal conclusions than of facts.’ ”
The constitutionality of indictments dealing with “public” offenses which were not as specific as indictments dealing with offenses against persons or property has been conclusively settled by our decisions. We cite three such cases. In Burdine v. State, 1854, 25 Ala. 60, the indictment substantially in the language of the statute, charged that defendant and others “played at a game with cards, or dice, or at some device or substitute therefor, at a tavern, inn, storehouse for retailing spirituous liquors, or house or place where spirituous liquors were, at the time, retailed or given away, or at a public house, highway, or at some other public place, or at an outhouse where people resorted; against the peace and dignity of the State of Alabama.”
The court said: “The form of indictment is in accordance with section 3506 of the Code, which provides, that where offences are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative. The objection to this provision, urged on the part of the appellant, is, that it is in violation of the tenth section of the first article of our bill of rights, which entitles the accused to be informed of the nature and cause of the accusation, and to have a copy thereof. The object of this clause of the constitution was, to enable every person, against whom a criminal prosecution was instituted, to defend himself against it if innocent; and a due regard to the intent and spirit of this provision would require us to pronounce against any indictment, whatever might be its form, which was obviously insufficient to secure this result. But the fact that the defendant may be charged with the commission of one or the other of two or more offences, which are specified with legal certainty in the indictment, does not render him the less able to defend himself against either of the charges which are alleged. It is true that he may be required to meet each one of the offences; but he would ha-ve been obliged to do this, if the indictment, instead of pursuing the form used, had been framed with different counts, alleging the commission of all the offences which are here charged in the same count. We do not think that -any constitutional right of the defendant can be impaired by sustaining the indictment in its present form.”
The short opinion in Coleman v. State, 1907, 150 Ala. 64, 43 So. 715, follows:
“Haralson, J. The indictment, in its first count, charged defendant in Code form, with selling whiskey without a license and • contrary to law.
“The second count, a little more specific than the first, but containing the averments of the first, gave the name of the person to whom the liquor was sold, or for whom it was procured, or whom he aided in procuring the same.
“The first count was demurred to on the ground that the indictment failed to allege the name of the person to whom the alleged sale was made, and to whom and where the same was sold, or when the defendant procured or aided the party named in procuring the liquors.
“That the indictment is in Code form (No. 79), or, that it is not sanctioned by sections 5076 and 5077 of the Code of 1896, is not questioned; but the contention is, that the statute authorizing the form of indictment, and dispensing with any allegation as to the name of the person to whom the alleged sale was made, and when and where made, is unconstitutional and void, being in violation of the Bill of Rights, which secures to the defendant the right to be informed of the nature and cause of the accusation against him.
*484“This is not a new question, and has been long ago, and repeatedly, since, determined against the contention of appellant. Noles v. State, 24 Ala. 672; Mayo v. State, 30 Ala. 32; Cochran v. State, 30 Ala. [542] 546; Bailey v. State, 99 Ala. [143] 145 [13 So. 566]; Jones v. State, 136 Ala. [118] 122, 123, 34 So. 236; Guarreno v. State, [148 Ala. 637] 42 So. 833.
“Nor was it necessary to allege the name of the person to whom -the liquor was sold, nor the particular time or place at which it was sold. Authorities supra; Caldwell v. State [146 Ala. 141], 41 So. 473; Lee v. State [147 Ala. 133], 41 So. 677.”
We think the Coleman case and the Walker case, next cited, clearly show that the rule in the Grattan case, supra, does not apply to a “public” offense because the court in that case said, “The present indictment is for an illegal purchase by the defendant of property belonging to another. * * * An averment of ownership, in our judgment, is just as essential to certainty in this case, as in that of receiving stolen goods, burglary, arson or larceny.” Those are crimes against property, while gaming, selling whiskey without a license and public drunkenness are strictly public offenses.
The opinion in Walker v. State, 150 Ala. 87, 43 So. 188, reads:
“Simpson, J. The appellant was indicted and' convicted of the offense of appearing in a public place, etc., while intoxicated, under section 4656 of the Code of 1896.
“The only point insisted upon by the appellant is that section 4903, which dispenses with any more particular designation of the place than ‘in a public place,’ is violative of our Bill of Rights, securing to a defendant the right to be informed of the nature and cause of the accusation against him. This proposition has been thoroughly considered by this court, and the constitutionality of such provision upheld. Jones v. State, 136 Ala. [118] 123, 34 So. 236; Noles v. State, 24 Ala. 672; Elam v. State, 25 Ala. 53.
“There being no error in the record, the judgment of the court is affirmed.”
We note in passing that a code form for public drunkenness came into the Code of 1907, and since that time it has been necessary to name the public place.
We have not found, nor have we been cited, any Alabama case where the offense was “public” that this court has nullified the indictment when it followed substantially the words of the statute defining the crime and setting the penalty therefor.
In 1860, Stone, J., in Lewis v. State, 35 Ala. 380, had this to say:
“Having shown that a slave may be guilty of an attempt to commit rape on a white female without actually assaulting her, if we were to go further and require that the indictment shall express the particular acts of which the attempt consists, we should greatly innovate on our present brief and simple forms of indictment, and introduce a particularity of averment and description, which would in many cases amount to a denial of justice.” [Italics supplied.]
To adopt and force upon the courts of this state the Nevada model of indictment as set out in the opinion of the Court of Appeals would upset, except as to code forms, what has been the established rule by statute and decision in this state for over 100 years.
The demurrer to counts 5 and 6 of the indictment was properly overruled. These counts follow the language of the statute and charge every element of the offense, and are sufficient under the decisions cited supra.
The judgment of the Court of Appeals should be reversed and the cause should be remanded.
The majority opinion strikes an appealing note; and were it not for the long-standing decisions of this court cited in this dissenting opinion, which seem to me to be conclusive of the question before us, I would join with the majority. My view is that if there is to be a change in the law now the wisdom and extent of such change are more properly addressable to the legislature than to the court. Clearly, provision could *485and might well be made by legislative act requiring an indictment to recite details of the charge to be defended against or in some other way providing for furnishing an accused with such details, such as a bill of particulars.
Beginning with cases reported in 1853, 23 Ala., to 1916, 200 Ala., the question of the sufficiency of the indictment was the rule rather than the exception in criminal cases, and it has been raised many times in later Supreme Court and Court of Appeals cases. For the past 30 years, the question of the validity of an indictment has not recurred so often, because the law was generally considered settled in the minds of both bench and bar.
I fear that the result of the opinion of the majority will have a far-reaching effect which is both unsettling and bordering on disastrous. In view of the constitutional grounds assigned for holding the two counts bad in the instant case, can there be little doubt that all the accepted and previously approved indictments for violating the prohibition law, distilling, lottery laws, the code forms specified herein and many others not listed and particularly all of the indictments which follow the language of the statute, would fall for lack of “specificity”, when the same rule as stated in the majority opinion is applied to them? It would seem that it would become the duty of an attorney defending his client under indictment in most criminal cases from this day forward to raise the question of the sufficiency of the indictment and hope for a favorable ruling irrespective of how many times the courts of this state had held it to be good and not violative of § 6 of the Constitution of Alabama or the Constitution of the United States.
There has always been a great difference in the amount of information required in indictments in the State Courts and those in the Federal Courts. Since the majority opinion is based largely on Federal cases, a proper question would seem to be, — at what point does the Alabama rule of pleading cease to prevail, and the Federal rule become a part of our pleading?
I, therefore, respectfully dissent.
STAKELY and GOODWYN, JJ., concur in the foregoing views.