Broadus v. United States

Fifth Circuit

Broadus v. United States

30 F.2d 394, 1929 U.S. App. LEXIS 2419

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 5, 1929

DocketNo. 5376

StatusPublished

Cited by1 cases

This text of 30 F.2d 394 (Broadus v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Broadus v. United States, 30 F.2d 394, 1929 U.S. App. LEXIS 2419 (5th Cir. 1929).

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Opinion

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.

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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.

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Bluebook (online)

30 F.2d 394, 1929 U.S. App. LEXIS 2419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broadus-v-united-states-ca5-1929.

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