majority">DOWDELL, J.

— The prosecution in this case was commenced on affidavit and warrant before the county court of Monroe county. The statute under which the prosecution was had (section 6934 of the Code of 1907) is as follows: “Any person who, by fraud or misrepresentation, obtains board or lodging from the landlord, proprietor, or keeper of anv hotel or boarding house, and fails or refuses to pay for the same, must, on con*5viction, be fined not more than five hundred dollars, and may also be sentenced to hard labor for the county for not longer than six months.” To constitute the offense denounced by the statute, the person defrauded must be “the landlord, proprietor, or keeper of a hotel or boarding house.” This is an essential ingredient of the offense, and without it there is no offense.

The affidavit which is set out in the transcript, and on which the defendant Avas tried, failed to state or charge that the person defrauded was the landlord, proprietor, or keeper of a hotel or boarding house, nor was there any “designation of the misdemeanor by name, or by some other phrase which in common parlance designates it” (section 6703, Code 1907); and for the failure or omission of such averment, or designation of the offense, the affidavit was demurred to, which demurrer was overruled by the court. This presents the only question raised on the record.

The affidavit, while attempting to folloAV the language of the statute, failed to do so, in that it omitted, as we have seen, the statement or averment of an essential ingredient of the offense, and, failing to otherwise designate it as authorized by section 6703 was fatally defective. Under the decisions in Miles v. State, 94 Ala. 106, 11 South. 403, and McGee v. State, 115 Ala. 135, 22 South. 113, the demurrer should have been sustained.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ„ concur.

Citation profile

Relationships

How this case has been treated — in progress