Chernis v. State

245 So. 2d 569, 46 Ala. App. 533, 1969 Ala. App. LEXIS 296

• Court: Alabama Court of Appeals
• Decided: January 7, 1969
• Docket: 6 Div. 364
• Status: Published

Opinion

CATES, Judge.

Appellant was indicted as a molester of a child under sixteen years of age against the form of Act No. 397, September 9, 1955. After entering a plea of not guilty, he was tried, convicted, and sentenced to a term of five years in the State penitentiary.

Appellant argues that the trial court erred in overruling his demurrers to the indictment.

This offense occurred in December, 1966, before Act No. 388, September 6, 1967, became effective. This new enactment begins with, “It shall be unlawful for * * *.” An indictment no longer requires the phrase, “contra formam statuti.” Code 1940, T. 15, § 232.

This statute as originally passed is expressly directed against “immoral, improper, or indecent liberties” with children under sixteeen with intent of arousal, etc.¹

Hence, to require the adverb, “unlawfully,” to characterize the act charged would be a superfluity. See Blocker v. State, 40 Ala.App. 658, 120 So.2d 924.

There was no merit in the demurrers. Accordingly, after review under Code 1940, T. 15, § .389, we consider the judgment below is due to be

Affirmed.

1 . The statute as now amended has expressed at least two exceptions which probably were already excluded by the words “immoral, etc.”