The opinion
.SIMPSON, Judge
(concurring).
I concur in the conclusions stated in the opinion by our Presiding Judge and wish to respectfully add the following:
As to the objection, so forcefully argued, that the statute under which the prosecution was laid is' unconstitutional, it is observed that this question was not specifically raised by the demurrers. Nevertheless, the better rule seems to be that the constitutionality of a statute upon which a criminal prosecution is based may be raised, for the first time, at any stage of the proceedings, either in the trial court or on appeal. Davis v. State, 28 Ala.App. 348 , 185 So. 771 , certiorari denied 237 Ala. 143 , 185 So. 774 ; 12 C.J. 786; 16 C.J.S., Constitutional Law, § 96. Hence this comment.
Counsel urges a striking down of Section 3294, Code 1923, as amended by General Acts 1927, p. 552, Code 1940, Tit. 14, § 28 (upon which this prosecution was based), ■on the ground that the amendment of 1927 was not germane in subject matter to that dealt with in the original section (3294).
The following clause of Section 45 of ■our State Constitution is alleged to have been infracted: “No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only.”
The law is that a Code Section under a title may be amended by reference to the number thereof, when the amended matter is germane and supplemental thereto, suggested by, and cognate with the general matter and subject of the original section. McCoy v. Jefferson County, 232 Ala. 651, 653 , 169 So. 304 ; City of Birmingham v. Merchants Cigar & Candy Co., 235 Ala. 204 , 178 So. 220 .
Using these authorities to test the constitutionality of the 1927 amendment of the arson statute, above, it is my view that the clause of our Constitution quoted hereinabove has in no way been violated.
The section (3294), prior to the amendment, dealt with arson, viz., the willfully burning (or with intent to burn, the setting fire to) of any property which at the time is insured against fire, with intent to charge, injure or defraud the insurer.
The section as amended (now Code 1940, Title 14, Section 28) is in no sense a departure in substance from the original. The matter contained in the amendment seems to be in all respects germane and supplemental to, suggested by, and cognate with the general matter and the subject of the original section.
Therefore, irrespective of whether or not the decision'by our Supreme Court in the Dean case, cited hereinabove, was intended also to conclude this constitutional question, it seems to me that the point urged by able counsel for appellant is untenable.
The proposition that the indictment should have named the insurer alleged to have been defrauded, aside from the conclusiveness of the opinion of the Supreme Court in the Dean case on this point, is answered by specific statute: “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.” Code 1940, Title 15, Section 244.