Attorney Notes

    r-fx I

t,

i,

\
tr

rN TTIE SUPITE}TE COURT OF ALABA}4N

JULTA P. WILDER,

Appel_1ant,

v.

STATE OF ALABA}4A,

)) s. c. No.
)
)
)

. Appellee. )

apPea1 
-Lr.gm 

p*ckpps 
9gp.!-ty ci:cuit couft

BRIEF IN SUPPORT OF PETITTON F'OR WRTT OF CERTIORARI
TO TIIE COURT OF CRIIUINAL APPEALS OF' ALABA},L\

Submitted by:

Solomon S. Seay, Jr.
Gray, Seay & Langford
352 Dexter Avenue
Ivlontgomery r' Alabama 36104
(20s) 269-2563

Attorney for Petitioner

d

,, lt



TAI]I,[: OF CON'I'ENTS

'IABI,E OII AUTTIORTTItrS

Pa_ge

i i.i.

iii
iv

1

6

9

29

Cases
Statutes and Other AuthoriLies

STATE}lENT

STATEMENT

STATBMENT

ARGUI.!ENT

OT THE CASE

OF TIIE ]SSUES

OT FACTS

A. Section 17'-23-1, Cocle Of Alabama, Ig75.
PStE"u 

"ca.se il
atute offends the

C.

ilrff
FSSlieI_Lan 4 the po rii-[eenffi-tEe e6ns[TEu

lbejla+ctmett,it L!i: c rE_!9_yag!e.a
uncertal-n and rnclefinite that the convic_.-_----E,l-on under thl_S indic tinent deorirres thepetitioner of_ SJue procgss _of. law-EfE,rEnteed
@$Etfon-e'G? rhe const.i butione{E ""Ement to the const.itii:uion of Tlit unfted_--
=...=-i---.-._SEaEeS .....

The evidence in this case is insufficicnt---tg egneorllL"j"-tn "tot thc crime charge4

Irtrhe::e mcans by which the offense was
comrn it uect -iFc1i.: r.recl iffii vr:,
daclr af r.".-nr._{{jtla..g" i*-r t_g_ aiar?f:+.-
tlie means vrith the siinffithe means vrith the samc ffiprart-:-cularity as rvould have been reorrirea ]: L j--c u 1 tilEa;s rvo u if3lj11_cr[sr_tty as rvould have been requ-iiea
hEit-Th e rc n a rqe -been-ma c1-c. i n a s -.,pai; te --nact rne gg?]:gge rJc:err .in3ctc. l-n a separate
Aount. lUi-fiire trc clo-o rcnaer.s the
a rii:I r-e -i;-(r ic ement -vo ilil * . 

-;: 
-

29

R.

D.

31

33

36



E. I.!9 glosins a ion
was i-mpropg_L rrr that' ttre.@tea

=
frrero
Ef]al .. . . . ,. !. . . -. . . . . ... . , . . . 37

F, fhg tqial court in its oral Charrrrs r-r_ rclr- \,(JLl,t- l- IIt Ilts C)ral cnarcre
denceI!c?P}!g$!ed tlre testimohy' a4d eVidence

"Et9r !.[e srate _wj-t+out recapitulatinq the
tesLr-mony and evj_dence of p'etitioner

re-iudiclirg the CauSe' aqilnst

CONCLUSION

CERTIFICATE

38

40

40

l-1



TABLE OF AUTIIORTTIES

Cases

Andrews v. State, 48 So. g5B.

And.rewF y. Stale, 344 So.2d 533 (AI-a.
Criminal Appeal, cert. denied,
344 So.2d 538 (Ala. l_9 77) .

7,

B,

7t 33,

6,

Page

8, 39

32

33

30

37

37

39

35

31

30

3B

6t

7, 32,Ballaitt v. State, 34I So.2d 957.

BoIiryv. State, 266 Ala. 256, 96 So.2dr
Boulden v. State, L79

Brandon v. State, 193
@i.

So.2d 20 (1965).

So.2d. 240, 277

6,

7,

7t 36

6, 32

7, 32

6,

7l

Chambers v. St.ate, 364 So.2c1 4L6 (1978).

, 43 Ala.
lpp. 20, 178 So.2dl32-lEert. denied,
278 A1a. 708, I7B So.2d 837 (1965).

Dubose v. City pf etontgoinery., L27 So.2d

Glover v. State, 109 So. t)5.
Gordon v. State, 52 Ala. 308.

llochman v. State , 9a So.2d'..495.

6t 7, 32, 37

Lanvetta v. State of New Jersev- 3OG, -- -

Loeb v. Webster, 104 So. 25 | 312 AIa. 99.

Manson v. Stat.e , 349 So. 2d 67 , AIa.
@ea1s, cert. denied,

349 So.2d 86 (Ata. 19 77) .

Mcl,emore v. International Union- etc-.
6t 32

7, 38

lII



Russell v. State, 379 u.s. 749 (L962).

Standard OiL v.' Statq, 178 AIa. 400,

Young v. State, 348 So.2d 544.

Statutes and gthei Authoii'tie.s

88 C,.f . S. , 51 (Tria1) .

Cod.e of A1abama, L975, Section L5-B-25.

Section I7-10-4;

Section l7-23-L.

6, 32

39

7, 35

35

6, 9, 29

6t 30

'l . 36

Code of Alabama, L975,

Code of Alaba!_d, L975,

l_v



The Grand J.ry of pickens county, in the state of
Alabama, in its November session, 1978, chargecl that the
Petitioner:

COUNT ONE

' did vote more than once, or did deposit more thanone barlot for the same office as irer vot"l -or'
did vote irlegal,y or fraudule"Iiv, in the Demo-craric primarf nun-orr Ei;;;i;""Jr seprember 26,L978,

COUNT TWO

did vote more than once as an absentee voter,or did deposit more than one ausentee ballot forthe same office or offices as her vote, or didcast illegal or fraudulent absentee bailots, i.,the Democratic primary Run-off Election ofSeptember 2Q, 1978,

COUNT T}IREE

did cast il1ega1 or fraudulent absentee balrotsin the Democratic primary Run-off Erection ofseptember 26,_ 1978, in that she did deposit-ritr,the pickens County circuit crerk, absentee balrotswhich were fraudurent aricr which she knerv to befraudurent, against the.peace and dig;ily-"r-trr"State of Alabama. (r.n.1 p. 3ZO- 32L!. '

Prior to the trial, p'etitioner entered a special prea,
rvhich allegecl, inter a1ia, "

STATBMENT OF'THE CASE

1. That the indictment fails to state an offense
cognizable by this court.

lrh. designation "T.R." r:efers to the circuit clerk,stranscr:ipt of the proceeclings and said aesignatiorr-rirr u"used throughout this brier when referring to this transeript_



The statute, pursuant to rvhich the indictment
in this case v/as rcLurnecl, is so broacl .i-n its
term as to sweep within i-ts prohibition concluct
which the state cannot constitutionally prohibit.
said statute therefore offends the constitution
of Alabama, 1901, Artic).e 1, Section 6, and the
Fourteenth Amendment to the constitution of the
United States

The indictment in this case has the sole purpose
and effect of frustrating the petitioner ancl
other black resicrents of pickens county, Alabama,
in trreir effort to exercise the right to vote
guarant6ed to them under the constitution and
laws of the united states. The indic.tment thus
denies the petitioner due process of lanv and the
equal pro'tection of the larvs guaranteed under the
Constitution of the United States. (r.n. p. 324-
326) .

The tria' commencerr on Iriay 29 , rg7g, and on l.iay 31,
1979, the jury founcr the petiti-oner guirty as charged in
the j-ndictment erncl fixed her punishment at five (5) years
in the penitentiary. (T.R. p. 330) .

Petitioner firecl a motion for new triar on th., 28th
of June t 7979. (T.R. p. 333_339). This motion rvas set
Irearing on Augusb 22, ]-g7g. (T.R, p. 342r - Said mo.tion

6.

7.

day

for



hra: clenied by circuit Juclqe ClaLus Jun}:in o.n september 27,
1979. (T.u. p. 343).

on the 22nd day of october, rgTg (T.R, p. 345-346) |
petitiorler gave notice of appeal to the Court of criminal
Appeals of Alabanra from the ver<Iict of the jury, the juclg-
ment 3r,d senLence of the court acljuclg-i-ng the peti.b.iorer
guilty and fixing her punishment, ancl from the orcler of
the court dated september 27 , lg7g, clenyi-ng petitionerr s

motion for new trial.
on the 12th day of December, rg7g, petitioner filed

a mo'L.ion with bhe circuit cor-rrt of pickens county, Alabama

regues'L.i,g an extension of time to cornpl-ete arnd file court
reporterf s transcript. (T' .n. p. 347-348). Said mob.ion r.ras

grerntecl. {r. R. p. 35I) .

PeLitioner filed several motions for further extensions
of time to complete and fi-te the reporter's transcript with
the court of criminal Appea-ls because of the failure of the
court reporter to t-::anscribe the record rvithin the exten-
sions of time given by the court of crimi-nal Appeats. Tire

Court of Criminal Appetrl.s grern.i:ecl these nro.tj-ons. (T.If .
p. 35:J-358).

By orclcr claLed l4arch 31, .'1.98j., the court of Cr.i-minal

Appeals affirmed bhe judgment of convictiorr ancl sc-:ntence

of the Circuit Court- of pickcns CounLy.



. Appl:tcation fol: ::ehcaring \ras f iled on April 14,

l981 anc"L ovc rrr-ilr:cl on Apr:i1 2J. , 1981.

This brief is submil-Lecl in support of Petitj-onerrs

Petition for lVrit of Certiora::i to the Cour't of Crirninal

Appeals.



EIA'I.EMENT_ gq*,rHlr I s,suEs

The issues presentecl for review are as forlows:

1. I^IHETHER SECTION L7-23-1, CODE OF ALABAMA, l-975,
PURSUANT TO I.IHIC}I TIII] INDTCTNIENT TN THTS CASE
IIJAS RETURNID, IS So VAGUE, INDEFTNITE, AND
UNCERTATN THAT SAID STATUTE OFFENDS TTIE
CoNSTTTUTION OF ALABAI4A, 1901, AR.rrcLE 1,
SECTION 6, AND THE I'OURTEBNTH AMENDMBNT TO
T}IE CONSTTTUTIOI\i OT THE T.INITED STATES?

Bolin v. State, 266 Ala. 256t 96 So.2d 592.

Lanvetta v. StaL€ Of New Jgrssy., 306 U.S. 45I,

2.

Standard Oil v. State, 178 AIa. 400, 59 So. 2d
667.

I^IHETIIER THE INDICTMENT IN THIS CASE IS So VAGUE,
UNCERTAIN, AND TNDETTNITE TITAT TI]E CONVTCTION
UNDER THIS INDICTMENT DEPRIVBS THE PETITIONER
OF DUE PP,OCESS OI.' LAIV GUARANTBED BY ARTICLE 1,
SBCTTON 6 OF TIIE CONSTTTUTTON OF ALABAI,IA, lgOi,
AND THE FOURTEENTH AMENDMENT TO THE CONSTITUTION
OF THE UNTTED STATES?

Hochman v, State r.9L So.2d 495.

So.2d 286 (1974),

u.s. 749 (Le62).

Briclgg v, State, 30I

Russell v. State , .369

Andrews v. State,
@.

Le77) ) .

344 so.2d 533 (aIa, criminal
denied, 344 So. 2d 538 (A1a.

9e"allg_v__y=__q!t_y- or, tlgn!-gorn?Iy., 43 A1;r. App. 20,
178 So.2d 832 (cert. deniedt 278 AIa. 7OB,
l7B So.2d 837 (I96s) ).

I,lanson v. State,, 349 So.2d 67, AIa. Criminal-@rt. clenied, 349 So.2d 86 (Ata.
1977) .

6



_chenrbsSj_.-_9.!n!-9, 364 so. 2d 4t6 (19 78) .

Bal1ar<,1 .v. S L.a!ri-, 341 So - 2d 957 .

ggrggn*L. S!a!e, 52 Al.ar. 308

3. tr,VHi]j'fHER THE !.[EIG}IT OIT EVTDITNCE TN T'IIIS CASIJ IS
SUIITICfENT TO SUPPOIIT TIIF: CONVICTION OF T}IE
PETITIONER OP TIIE CIUM]] CHARGED?

Branclon v. State, 193 So.2d 240, 277 AJa.@

4. WHETHER TIIE ENTIRE INDICT}IENT IN TIITS CASE IS
VOID !.I}IEPG TIIE OIIFENSE TS CHARGED IN THE ALTER.
NATTVE AND ONE O}' TIIE ALTBRNATIVBS DOES T-IO'T
C}IARGE AN OFFENSE IVTTH TTIE CERTAINTY AND
DE,PTNTTENESS REQUTRED By SECTTON 15-8_25. coDE
oF ALABAI'IA, 1975?

Young v. Sta'ts, 348 So.2d 544.

Boul-den v. State, L79 So.2d 20 (1965).

Donalrl!' v- Cit)z of tlgnlgomefy_r 43 AIa,App. 2A,
178 So.2d 832 (ce::t. denied, 279 Ala. Z0B,
178 So.2cl 837 (.te6s) ) .

Dubos;c v. City of }iontqomery, 127 So.2d. 849
---lIg-6,I . --_-

5. I,]IIETIIER T}Itr TOTALITY o}. TIIE CLoSTNG ARGUt.lE}iT
OF TI{B STATE IIAD T}IE PURPOSE AND EFFECT OII
APPEALING 1]O PASSION AND PREJUDTCB THUS
DEI\YING TO PETITIONEII A FIIR TRIAL?

I{clenore v, Ini-ernzrtional Union, e-Lc., BB So.2d
L70 (19s6).

!g"b*:1. US!:*gI, 104 S- 25, 3I2 Ala. 99.

6. I^]IIET]TItrR TI.IE 'I'RIAL COUITT IIRRI]D IN II.ECAPII'UI,ATTNG
fl.l fTS OliAT, C:l{ARGli I'IIE CO}.tfII}JTIOUS irND EVIDI:NCE
O]I TIIE STATE }JITI.IoUT RL]CAPT']'UI.ATING TiiE CONTtrN-
TIOIJS /rND lJVl-I)EIICE OII TIiii: PII'I'ITIONIIR?



Gl.over: v. S;ta Lc, 109 So. 125.

Arrdr:civ:; v. Stat-e, 48 So. B5B.



ST'A'1'EI,1EI!T OlT rACTS

llhc Grand ilury of picJrens county, Al;rbam:r in its
November session, 1978, chargerl that the petitioner commit-

te<1 the ac[:s as set forth in the indictrnenl-. (,r.R" p. 320-
321). Prior to the ar.raignment, pe'bitioner enterecl. a prea

wherej-n she set forth rvith par:ticularity the reasons why

the state ought not further prosecuLe its inrlictment. (T.R.

p. 324-326), Petitioner contencled that the statute, pursuant

to which the indictment in this case hras returned, is so

vague, indefinite, and uncertain that the pebitioner coulcl

not anticipate what conduct is condemned thereby. section
I7-23-l of the q_oge pE_Alabama , !975 , provicles:

"Any person who votes more than once aL any
elec'bion held. in this Stater or deposits more
than one ballot for the same office as his
vote aL such election r ar knowingly attempts
to vote rvhen tre is not entibled to ito sc, or:
is quilty of any ki-nd of illegaI or fraridulent
voting, must, upon conviction, be impr_isonecl
in the penitenbiary for not less than trvo ye.rrs
nor more than five years, dt the discretion of
the jury. "

The plea also set forbh several o.ther reasons the

state ought not furtlrer: prosecutc, vzhich plea rvas clen.iecl

by the Corrrt. Petitionerbher:cafte:: r.ras a.rraignecl and

enterccl ar p1e;r of no't- gr,iilty. (T"Ir. p. 329) .

At trial, Mr. Paul. C. Rollins, callerl as a r^ri.tness by

the Stab.e, testifiecl bhat Irlrs. [I;,rgg.Lc Bozeman contactecl him



concct:r)inq .the notar:iz_ing of sorne b.rll.ots. (R- 2 p. 16) .
subscclue.t to thi.s, ttre peLitioner ancr trv, oLher inclivi_
duars contacted l4r. Ror-lins in his office ,,,iiuh barr_o.bs

to be notarized. Mrs. Bozeman, in her prior telephone
conversation rvith Mr. Rol1ins, informecl him that some

individ,ars rvho were voting by absentee ballots ,eedecl
a notary. (n. p. 17). t4r. Rollins further testifiecl
that he notarizecl the signatures of Annie B. Birlups,
Bessie Billups, Lioda Bonner, Atlas Brooks, Juria cousett,
Charles Cunningham, Lula Ctinningham, NaL Dancy, Stel.la
Dancy, Gurlie De1oach, LuI;r Deloach, Iutattie Gipson,
Robert Goines, Joh.nie l4ae Grey, Haze}<iah G::ice, saclie M.

Grice, Lucille llarrris, Suzie Ho.cr, Irlary A. King, call_i-e
I(irkrand, Itlaucline Latham, I,Irs. Marmie IrI. Lavender, Annie
Ivlae Little, Lucious t"Iinor, Frannie R, Rice, Janie Richey,
IJillie Lee simmons, Ilattie Ann simnrons, Dave sonunervilre,
Leola sornrnervilre, L9, sorLmerville, sophia spann, opal
Thomas, Hattie Tompkin, Rosetb;r lrTatts, sernammer stinson
Irlashingl-on, clemie I{e11s, and Roosevelt llirrdi-ram; tl-u-rL. the
ba1lots of the above persons i.rere bror-rcyht to him by the
petitioner and two other: indirzich:ci.l.s; L]-rer,t Lhe .tbr_rvi,.:

narned pel:sons dirl not s.ign the barroLs in hj.s pr€::;ence;

2'rho designatior-r,,Ii.,, refersOfficiarl. Transcr:i-pL on Appeal, anclbe used throughout tl-ri.s irrief rvl:en
cript.

to the I{epo.rte::f s
said clesiqrrabion rvil.I
referring to this tr:ans-

IO



thab he dicl not see the barloLs signe<l by the above incli-
vidu;rIs; anc], that the petitioner inforrne<l l'rim that. the
above named individuals signecl their respective balrots.
(n. p. 18-29). petitioner's counsel object.ed to the

introduction of ttre ballots (R. p. 20) i and, the Court

overruled the objection, thus admitting into evidence

Exhibits 1 through 29, inclusively. (R. p. 29).

on cross-examination, IrIr. Rolrins testified that he

could not identify the ballots introduced as Statets
Exhibits 1-39 as being the same balrots brought to him

by petitioner Wilder (R. p. 34) t

0, You are not absolutely certain, l4x. Ro1lins,
are you that aII of those 39 ballots were
the ballots that Ju1ia Wilder brought to
you pri6r to September 26, are you?

A. It was some ba1loLs. I woulcl say f didnrt
say those were the ballots.

Janie Ti1ley, called as a rvitness by the State,

testified on direct examination as follows: that she is
employed as Court Clerk in the Circuit Clerkrs Office and

she processes the absentee. voting applications (R. p. 401 i

that after an application is'filecl she .checks to see if
the applicant is a registered voter, then mails them the

baIlot with instr:uctions (R. p. 43); ryhen the ball-ot is

mailed back it goes into the box (R. p. 43) i that prior

to the September 26, 1978 Democratic Primary Run-off

Election, petitioner Wilcler came to the Clerkts Office and

11



pickc'c1 up 25 ol: so ;tl>sen[-ee app]ic;rtions (ii. p. 44); that
on selrtsmbsr 25, 197t], Feti'F-iorrr:r I^rirrrer reL.ur:necl to hcr
of fice arnit broughh. in aboul 50 ;rbsentec barroLs (R. p. 45);
that the applications brought in by petitioner l,Iilder were

arI to one of three aclclresses, ancl that she brough-t this
mattel to the at'tention of the Cir:cuit. Clc::k (n. p_ 46).

Applications to the bhree addresses v/ere rnarkecl as Staters
E>rhibj.ts 40 through 63 and inl-rocluced into evj-dence over the
objection of the petitioner-

Testifying on cross examinat.ion, the r.ritness rirly
testified as folloivs: that she is gener:a1I1, familiar vrith
the election larvs of the State of Alabama ancl that she knoru's

of no l-ar,' t-hat prrohibi'L.s a pe::s;on other: than the applicanb

from pi-cki-nq up 'bhe bal]-oL (n, p. 5r); that she knows of
no reqr-liremen't in the lars that the ballot be maj.lecl to.tl-re
applicant t s address ancl ther.-e j.s nothing iurprope:: abcuL

having the ]>a.l.1oL mai1cd t.o anot--her persons address (I1.

p. 52-53); that she knor*s of nothing -in the rar.r that proh_i--

bits a person othcr ttran the el-cct--or from returning 'Lhe

absentee applicat-.ion; th.rL she c.rnnot t.estify that petit_i.oner

I'r.i.-l..1cr: rc l-urnr:d itnlr c: f tlr':: b;r.l..l.o Ls nr:r::I-.c-c1 ancl i1t-::<>lli.rcocl

as St-;rt-ers tr>lhibjts :L-39 (R- p" 54)"

On recross examination, t-.he vritnes;s T.illey test-ifir,,cl

t:lr.rt peL-.iLioncr: raalCc n() rept:esent--ation to hnr tha{: tlrr:
b,:r11oLs or eittri:r of t-hr:m wa:; thc: hla11ot- oi: pctit,ic>ner

tr{ilcl<:r. (n. p. 56).

t2



Mr. Cherrles Ngrmq!_!al.g, caIled as a rvitness; by the

State, te.sti.fied thab he was an investigator for thc

District Attorneyts Officc; that he r^ras requestecl to

conduct an investigertion concerning certain alleged dis-

crepancies in absentee voting; that his investigation

revealed an unusual number of ballots (39) possessed the

same adclresses; and further investi-gation revealed that

the pebitioner's address was one of the three most frequently

on the ballots. (R. p. 68-69). Mr. Tate testified on cross-

examination that of the three addresses most frequently

used, he was unable to come up vrith thirty-nirie (301 ballots

rvhich used the three addresses, but that he found. thirty-

nine (:01 which 1rtilized the same notary public. (R. p.

7s-75) .

Mr. Goines, called as a witness by the State, testi-

fied on direct examination that he was a registered voter;

votecl in the run-off; made an apptication for an absentee

ballot; signecl his mark on tirat ballot; that petitioner

witnessed the signing of his. mark; and that petiti-oner

hras t-here when he made his mark. (n. p. 82). On cl:oss-

examination, Mr. Goines testified to remembering a man

comincJ to his housc and asking if he placed his tnarl< on

the ballot. Testimony further revealed that 'the man

was accompanied by tvro (2) ladies. (R. p. 88) -

13



ils- Aq!.}e_E-tf.Iun=., callecl as a ryiLness by Lhe SterLe,
'ters'L-i.f.icil on cl:i,-rect exarn.inat-Lon that she r,,,.rs a reclister.ecl
voter; voted in the .SepLembe.r 26, LgTg Dcmocrcr.Lic prj-rnary

Run-off; signed a request. for an absentee balIot; that
petitioncr brought her the ballot and that she signed
the ballot with an "x". (R. p. 91-93) .

M::r, Mattig Gipsog, cal1ed as a witness by the State,
testified on direct examination that she vras a regis.tererf
voter and that she made her mark on the application. (n.

p- 99-100). on cross-examination, IIrs. Gipson tesbified
remembering severar ladies coming to her house to tark
with her about rroting an<I authorizing them to help her
vote. (R. p. 10:]-104).

UfE_r*Sophia Spann, ca1lcd as a r.ritness by the State,
testifiecl on <lirect exarnination that she never votecl by

absenLee baIIot, di-cllr't knrrw the apperlernt and diclnrt
voLe by absentee balrot in the run-off primary in septem-

ber. (R. p. 105-107). On cros;s-examination, r.4:!:s. Spann

tes tif ied makincJ the s t--a,.tenerrt : ',I{hateve:r: l,1r . Coleman

wanted mc to c1o, r vrourd d.J"; tiraL M;rqglie Boz.erncrn canrc to
the house rvith a rnilrr (R. p- 1r0); that rvhen she vrcnt to
hcr us;tt.tl voti.ng 1:J-trc;r-: L.c-l v<;'i:r-r sltcr:[otr;r<] tlr;ri: s;otneone ]-rarc1

alr:eady voted for: her. l"lrs. spi:nn den-iecl }:nor.ring anything

a):out solil,,-1rJne vot-ing for her, a1r1 $/as i)(jr-i1ittecl to vole art

Llrr: prr:c.i-nct, on._) o I t-]rc reas()ns; i:erinc; t:hart-. ]rer: name rras

I4



spelled incorrcctJ.y on the barl0t sent to the precinct,
which ba110t representecl her absentee vote. (R. p. 110-
113) - she further testified not remembering signing the
absentee ballot.

Irlr' Nat Dancy, carled as a rvitness by the state,
testified on direct that he knew the petitioner and that
he made an rrx, on the bal1ot. (R. p. L22). He further
testified that the petitioner came around and brought a
piece of paper rvith her that rooked like the barlot. (R.
p- L25). on cross-examination, Iitr. Dancy testifiecr that
the petitioner came around to see him and asked him to put
his rrx, on the ballot. (n. p. L26).

Mrs. Mamie_iavender, carlecl as a witness by the state,
testified that she rvas a registerecl voter; voted last fall
in the primary run-off and in the June election (R. p. t26) i
that she made her mark on .the absentee balrot; made an appli_
cation for a ballot; that the petitioner spoke with her
prior to the election about a r^ray she would not have to go
to the po1ls (R. p. 130); and authorizecl the other girl
with the petitiorer to mark Lhe barlot for her (n. p. 131);
and authorized the petitioner to take her ba.lot to the
clerkrs office in the courthouse. on cross-examination,
Mrs- Lavender testifiecr that the barroL came to her in the
mail ancl that' the petitioner v/as instructe<l by lr{rs. rJavend,er
to vote for the democrat.

I5



Ur:_!etf€-:,lilg_E, caI1.ed as a rvitness by the State,

testified on dir:ect tlrat he is a registerecl voter; vote<I

in the Democra'tic Primary Rurr-off of Septcmber 26, I978;

that he knerv the petitioner; ancl spoke with her prior to

September 26 (R. p. L2g); that he signed his name with an

"x"; thaL he spoke rvith the petitioner and he informed her

that he wasntt going to be there; that the petitioner

infonned him that she kriew of the r.ray he could vote eve-n

if he wasnrt going to be there (R. p. 140-141); that the

petitioner alvrays helped him vote because he couldnrt

read (R. p. L42). On cross-examination, Mr. Minor testi-

fied that he hacl known the petitioner for years; that the

petitioner helped him r.rhen it came to voting (R. p. 143);

that. he totrched the pen as the petitioner voted for the

democra'Ls and made his mark (R. p. I44).

Irlrs. Lucille Harris, called as a witness by the State,

testified on clirect examinati.on that she voted last faII in

the primar:y and run-off elections and that the petitioner

brought a paper for her to sign if she didnrt desire to go

to the polls. (n. p. 145). on cross-e.xamination, Mrs. Harris

t.estified that she had known the petitioner since she lived

.in AIicevil.le; that the pet-itioner informed her that she

coulcl fix it so she vrould not have to go to the poIIs to

vote; that Mrs. ilarris signed the paper which permitted

her to vot-e without going to the poIls (R. p. L47)i clrld

16



that l{rs. Ilarris to-td ttre petitioner she cl:sired to vote
f or: clcrnocral-s (R. p. 14 B ) .

l15:r. Regsj.g U+Ilupl, called as a rvitness by the Stare,
testified on direct examination that she is a r:eg-istered

voter; that she sj-gned her narne with an "xt'- that she made

her rrx* on the application (n. p. r5r); an<l trrat the peti-
tioner v/as presen't rvhen stre made her',x" (R. p. I52). On

cross-examination, Mrs^. Billups testified that she hac known

petitioner for a long time; that the petitioner came to her

house to <liscuss voting; that she informecl the peti-tioner
that she would not go dorvn to vote (R. p. r55); that she

courcln't remember much (rt. p. 152); and that she rvas at
her sisterrs house r,zhen she roarde those rrxtqt' and that she

returnecl the ballot to t-he petit.ioner at that time (n. p.

153).

Mrs. fronlric R. Lice_, caIlecl as a rvitness by the State,
testifiecl on direct examinal-ion that she votect an absentee

ballot in the run'-of t last faII in septcmber; that someone

came aronncl ancl asked lrer to apply for an:rbsentee balIot;
that the pet-itioner wars such person; tha{: a rnan vras r.z.ith the

petitioner ancl th;rt shr: signed the applicat-ion. (If - p, 161-

l- 6 3 ) . On cr-oss-e. x.rm-ina Lion , l'1rs . lt-ice te:;trf j-ed tli"rt
peLit.ioner brought the appl.ica'L.i-on to her; thaL she m:rde:

thr: "x's" on the h;lllol-; iJave ttre ballot back to the prrt:i*

tioner arrd L.Lrat- a nan r,/a:i riiL.h t-he peLib.ionc.r r.lho l4rs. ltice

told i.:Lr.rt- thc ba.l..l.oL was hr:rr.;-

L7



. ilfeJ_l_olllsJ,el=-]s, cal_Ieci as tr ruitrl.ssi for thr: St_ate,

tcstifierl on clirect exami-nation that r;]re is a ::egis;tcrecl

vot-er: in Pickens counLy (n. p. r70); macte an apprication
for an absentee barlot in the DelnocraLic p::imary Run-off
Election; signed the applica'Lion (I(. p. r71); thart l{rs.
Mattie Lou Grice v/as wi'uh her when lvlrs. wel_-Ls fill.ecl out
the request for an absentee balloL; trrat the balrot rvas

brought to her house (R. p. L72); that she guessecl she

sicJned the balrot. petitionerrs counsel objectcd and

sought to excrude the tes'timony of the witness on the

grounds, inter ar_ie, the particul.ar witness had not been

tiecl to the petitioner. The courL overrured. the rnotion

to exclucle (R. p, ).74-L75). on cross-examinat:Lon, Iulrs.

IVells,tcsLified tl:at she rvrote her ner.me on the apprica-

tion, remernbered Mrs. Grice conting over to her house to
talk abou't voting (n. p. L76); ;rnc1 that she didn,t remember

getting the ballot in the maj-l.

I,Irs. Lula Del-oach, caIlec1 as a r^l-itness by the State,

Lestified on direct e>:amination that she is .r regi.s'Lerecl

voter in Pickens connty (il. p, 7.79); firred out an appricar-

tioir to votr.: an trl.>.';i:rri:ee baLloi, and LhaL. she .[oL:qoi: r.;]retirer:

anybocly helped her filt ouL the arpplicai:ion (Ii. p. IB0) -

On cross-examinat-.ion, l.4rs. Delo;rch tes;tifjed .Lhat Lhe

petitioncr: ha<'l br.:en to her house ruj.th that p.lece of pepcr

(applicat-j.on) that L.he prosc:cutor: shr:ryerl her (n. p. 183);

IB



that she rernembc-::ed the petitioner and somec-rne else com-ing

to her house r.rith a man (n. p. lB4); iclent.ifiecl her husbandrs

signature on an application; that her husban<l lv.rs at home

rvhen she signed the application (n. p. lB5); ancl that she

and her husband signed the applications of september 2r,
L978 (R. p- 186).

Mr. tharles Cqnirineham, ca}1ecl as a vritness for the

state, testified on direct examination to being a registered
voter (R. p. 187); making his mark on the application (R.

p. 1BB, Statefs Exhibit 46, T.R. p. 425)i that petitioner
informed him of what the application rras; that he knew

the apprication rvas a vote form; identified the petitioner
(R. p. 189); tl:aC the petitioner came by his home and.

brought an application; that he signed a ballot (R. p.

190-191); and that he authorized the petitioner ancl some

other person to fill out the ballot (n. p.191).

After the close of testimony by IIr. Cunningham, counsel

agreed to stipul.ate as to the testirnony of Mrs. Maudine

Latham. Appellantts counsel.also requested that stipula-
tion be mad.e without waiving defense objection to the

aclrnissibility of clocuments (R. p. 193) .

The State thereafter reca1lecl Parul C. Rollins, who

testified on direct that he notarized ballots for the June

and Run-off Elections. (R. p. 194). Petitioner's counsel

objecbed to the testimony on the grounds that the State

19



rras impeaching its orvn rvitnessj. .rhe CourL. there.rfter
allowccl l"ir. Rorlj-ns to read the tcstirncny qiven aL his
clepos-it.ion " (11. p. 195-IgU) . T.he Statc, ovor objections
of the defense, rvhich rvere sustarined, continued its efforts
to inrpecrch its i./itness. (R. p, .195-198). On cross-examina-
tion, Mr. Rollins testified thaL ttre petitioner came to his
office prior to the september 5th priln;lry; thart he notarized
some ballots broughL by the petib.ioner; that prior to the
september 26t}. Run-off pebiti.oner came back to his office
to geb some ballots notarized; trrat he refused to notarj ze

these ballots; that he wen't to Pj.ckens County rviuh petitioner
to notarize the ballo'bs ancl that the ballots introduced
at trial were the ballots he notarized prior to the September

26th run-off . IuIr. RoIlins furt.her testified he asked each

person vrhether this w.rs their ballot and each person ackpory-

leclgc.:d their l:aI1ot. (n. p. 198-199). On re-<1irect, the
proseculion cotrtinued its efforts to irnpearch its orvn rvitness.
Petitionerrs counsel objectecl ancl an j-n catnera. confer:ence

r'Jas herd, rn 'the in camera conference, the st-ate sought to
have l'1r. Rolrins dec.lared a hostj.le laitpess. The court:

there;rfter docl-arccl h:Lrn to be a tros'ti1e wit-ncss. tr'Ihen }ir-
I(o11-i,rrs rcl-ut:rreii, the Clourt sbai:e:cl Lo I'ir- t{o1-l-ins t-}r..Lt- ire

had commj-tted ririsconducL in hj.s acL.ions of notar:izinq the

ballobs. (n. p. 199-204). The jury rct-urrrecl ancl Lhe pro-
secut-ion con L.inuccl j ts e:f fo.rts Lo irnpeach thc tes; L.irrron-y of

20



Mr- Itorrins. Mr. Rolr,ins sbatecr several .Limes that, rre rrras

confused as to what balrots the prosecubion referred to clur_
ing the depositions; and during his initial testirnony given
on direct- petitioner's counsel objectecl to a hypothetical
question propounded to I'Ir. Rorlins and the prosecutionrs
reference to matters not in evidence. Both objections were
sustained by the court. petitioner also objected to ilr.e
use of depositions by the prosecutor which were not enterecl
into evidence. (R. p. 204-2Lg) - At the Close of Mr. Rollinsr
testimony on recarr, the petitionerrs counsel moved. to set
aside all the evidence introduced by the state and to order
the defendant clischarged, which motion the court denied.
(R. p. 220-2zL) ..

The defense thereafter began its case in chief.
Ms- Julia w!I-der, carled as a witne'ss in her own

testified that she lived in pickens county arl of her
and could read ancl write very little (R. p. 22L); that
knew Ms- Maggie Bozeman, Mrs. Dunnerhirr, ancl has been

politically active in the"county in concert with these tr.ro
ladies- Ms. Wilder recalled that there v/ere thr:ee elections
in the county last year (n. p. 221); that in the Democratic
Primary and the Run-off , she was actively invorvecl.in aid.ing
persons to register to vote by way of absentee barrot. IIer
testimony further estabrishecl that she picked up the absen-
tee applications in carrorrton and vrent to persons she knew

behalf,

life
she

2L



\{oulcl bc unabl.e to go to the 1>o1]-s or persons rvtro r.roulcl

be out- of totvn on elecLion clay and dist:ril>uLr:cl tl're applica-
tions. 'rr'ro other persorrs aricled Ms. I{ilder in this pr:oiect.
(n. p. 223). I'Is. trvilder later idenb.ifiecl several addresses,

her address atrd the address of tvro other persons rvho assisted
Irer. (n, p. 224). Pr:ior to the Democrati.c pr:imary and. Run-

of f of. last year, I4s. tlilderrs testirnony establishecl that
she came to the courLhouse to secul:e applications for
absen'tee barrots, ttrat she never obtainecl more than ten

or twenty apprications and after r:eceiving such applica-
tions, gave some to Mrs. Grice ancl Mrs, I-.linnie Dunnerhirl

who aicled her in thr: project. (R. p. 225-226).

it{rs. i{ilder tesbj.fied only to visiting registerecl

vo'Lers and spe:rking with thern about vobing arnd the absentee

Irrocess. The co1locluy with the vo'ters is as fo1lor.rs:

f vroulcl go to that person I s home and tall<
with tl-rem and ask thcm -- I didn't visit nobody

. cxcept registered voters because thaLrs vlhat it
i./as about. And I rvould get irr there and sdyr
"Do you r.lant to vote this year?r'

"I^Ihat kind of election is this?"

f vloul.cl sayr "['/e11, it's t]re Dcrnocr;rtic. "

Ancl they r^roul-<l soy, "'IhaL's the rva.y I want
to \rot'-c - t'

"You rccllorr you vri1.L br.: abl.e to be ert the
polIs?"

Tlrcy ivoulr-l s;ay, "lJo. You l<no'.,r f c;rntt gct
around. tt

22



And I sa.i-cl, "WeII, rqould you f.ike for me to
shorv you horv you can vote rvithout. getting down
there? rr

"Yeah. "

And I would sit down and teII them that once
you fill this form out and let me mail it back to
the Circuit Clerkrs office or take it back, I said,
and they will mail you ouL a bal1ot. And. most of
the time, "Would you like for the ba1lot to come
to you?r'

able to, you know, geL iL. back to me or nobocly
eIse, and they would sdyr "No, I canrt get it to
you.',

"Would you like for me to -- Vlhat would you
like for me to do -- let it come to my box, or horv
would you want it done?r'

rrl,et it come to your box."

I saicl, "Okay. I will do that, and when it
comes, then'I will get it back to you -- Iet you
decide vzhich way you want to vote." (R. p. 226-
227) .

No ballot or ballots were mailed to l{rs. Wilder if she

received no instruction from 
.the 

voter to do so. (R. p.

227t. If the voter desired the clerk to mail the ballot to
the applicant, the applicant would thereafter telephone Mrs.

Wilder to infor:m her the balloL rvas there and l4rs. Wilder

vrould go to the personrs home to discuss how the applican'L

desired to vote. Mrs. Vlilder took with her a sample ballot
which she rece-ived from the Alabama Democratic Conference

which indicated ttre persons endorsed by said conference.

(R. p. 228-229). I,Irs. Inlilder testified that she showed the

bal.lot to the voter ancl upon an inquiry from the voter

23



explair)ed that Lhe bal.lot carile from thc ]rcaclquarters in
l,lontgone11, an<l that. L.hr-: s;arnple bal-Lot inclicateit t6e vr.ry

r','c are going to vote. I'Irs. \^/i.lder inclic.rl-c-:d bhab shr: rvoulcl

not- have marked'the ballots arry\./cry bub the rvay the prospec-

tive voter des.ired. (R. p. 229-230).

when questioned concerning l4rs. sophia spann's testi-
mony, J'lrs. wilder testified Lhat after receiving the applica-
tion she took it over to l4rs" si>ann's irome but she ryasnrt

i.n. The application was left vrith some girl who was there.
After tiris, I{rs. IrTilcler had no further connection ryith Mrs-

Spann, (n. p. 231). When the ballot came batck, one of
the obher persons rvho rvere assisting her in the project
wenL to arid Mrs. Spann. The ballot rr.rs thereafter returned

to headcluarters;. Aftcr the ba.Llots r./ere marked, they were

notarized. (n. p. 232). At no time did lrirs- I^Iilder deliver
to the Courthouse notarizecl or: unnotarizecl absentee ballots.
A man vrorking rvith Hor,vell Heflin's carnpaign delivered the

absentee ballotsr 'Lo the courthouse. ir{rs. Wilder testified
that his name began with a ,'I(". (R. p. 233).

I.Irs- Wilder: tesL.Lfierl concerning tlre testimony gi-ven by

I.{r:. RoI-lj.ns; t-}raL she knc-:vr l4c. Rollins; travclled to,l,usca-

loos;a h-r.zj.c,:: to s(),'j h.Lrn de:;rlir-it.1 rv-Lt-h t-hc D:rrrrccratic I,rir',i.r.ry

Run-off ancl the Gcner;rl Lilection; that on the firsL occ;rsion,

Mrs, I'iaqgie Bozcmalr \ras r.rit-h h<:r; that on thc second occasion,

I,Irs. l,ucie Lockh;rrt .rnil Irirs. ltirrnie Dunnerhill (R. p.23s)

24



I'lr:s. IrIi-l.iter further test-ifie<l ilrat. the firsL occasion she

sarv IrIr. Rollius in connection rvibh the prirnary. (R. p.

236). on the second occasion, she saw Mr. Rolrins on

september 26; that she was rvith Mr. Rolrins whenever he

\ras in Pickens County. (R. p. 237).

l'Irs' wilderrs testimony indicated. that at the time

Mr. Rollins was in pickens county, they rode around and rvent

to those inclivicluals rvho had ballots which needed notari zing.
Irlost of the ballots were notarized at the headquarters.

on the first occasion, Mr. Rorrins notarized the barrots
in Tuscaroosa. on the second trip to Tuscaloosa, he refused
to notarlze the ballots and she took Mr. Rollins around. to
the persons the seconcl time.

Mrs. wilder testified that she did not fill out a single
ballot viithout the voterrs permission (R. p. 23g); and, that
where it appeared that the appricant signed his or her appli-
cation rvith an rtxrr but on t.he baIlot itself in the affidavit
there purports to be the personts signature, Mrs. Llilder
testified that she got in'touch with persons who coulclnrt

vrrite and these persons authoiizecl Mrs.. Wilder to rrrrite

tlreir name rvhile they touched the pen. (R. p. 240-24I).

On cross-exanrJ-nation, l,trs. !,Iilder tesbifiecl that she

had an educational level of about sixth grade (R. p. 242) t

and explaiined to the voter the absentee process as best

she could (n. p. 245)

25



. on redirect examirration, Mrs. wilder test-if.ied that it
wourd be a fair statment to say Urat in the erections rast
year in Pic}<ens county, black citizens voted with the
Arabama Democratic conference ticket. (R. p. 2sg-260).

Ms. Janice Tilrev, the second witness for the defense,
identified staters Exhibits 55, 60, 70, 77 and, 78 as docu-

ments she identified previousry; that these clocuments came

from the box in her office where the absentee applica.tions
are returned; that the applications containecl Lhe return
addresses of one or the other of the three addresses she

saw quite frequently on applications; that some of the
absentee ballots came into her office from the persons

whose names appear on Exhibits 55, 60, 70r 77 and 78.

The prosecutor stipula'ted that a balIot was not received
in the crerkrs office for Exhibits 55, 60, 70, 77 and.78.
(n- p. 26L-264). The box which housed the applications
and ballots was subpoenaed to determine whether, in fact,
the box contained ballots for Exhibits 55, 60, 70, 77 and

78. (n. p. 264'). Thereafter, counsel sti-pula.bed that
:'

the box contained ballots for vzhat now'has been marked as

Defense Exhibits 2 and 6, (R. p. 265-266) .

During summation, co-prosecutor Johnston macre several

references to the attitudes of bracks toward. the case (R.

p. 297) and the obvious pressure on a lot of other people,

calling to the attention of the jury that there had not been

26



ntany rvhite folks itr ilre cour'tr:oon at-. alr bhis time (n. p.

302-303). The prosecutor also macle refe:r:ence to the fact
thaL he had to try a rnurcler case which involvecl some black
peopJ.e, a black nran who had been kilrecl. Defense counsel

objectecl to the reference ancl movecl .Hre courL for ar mis-

trial. The court sustained the objection bub denied the

motion. Prosecu'tor Johnston further macle reference to
irlr. chestnut, co-defense counselr ds having been a preacher

and that his style was aid.ed by the audience who responded

with an "Amen" every nors and them, (R. p. 304).

The Court during ibs cltarge made reference to the

statute pursuant to rvhich the defendant is chargecl ancl

specifically noted tha'L the statute rvas clivided in.to tvro

parts, per:sons vrho vo'becl rnore than once in an elect-'i-on or

at{:empts to vote rvhen he is not entitled to do so ancl then

further is guilty of any kind of i11egar or frauclrrrent

voLing. (R. p. 307). The Court- charged, ds Lo the Statets

burden, th;rt- the jury nrust be satisfied beyoncl a reasonabre

doubt on orre of tire t-lro offenses contained in the statute.
The Court thcreaft:er repeatr:clI1, r,J;..r to thc S'Latcr,s

contentir-rns in l-i-qht oF the char<;es in the irrCj-ct-nent-

(R. p. 308 ) ,

Thc Cor:rt further rcfer.r:ed, durir-tg its c:harqe, to

va.::.'i-ous st;:'L.utes vlhich tv'e]^e rrot .Ln issue, 17-23-3 of

1975 9g-{g_ oI _4bP:Ul (tr. ,. 308) , 17-10-7 of thc .1.97s Cocle

27



(R. p. 309), Titl.e 13, Section 5-115 of Alabama Code

(R. p. 311), and 17-13-1 of t,he qgdg_of Alabama, 1975

(R. p. 3I2). The Court further outlined, accord,ing to
these statutes, the proper procedure which shourd have

been followed in this case (n. p. 3ro-31r), after which

the court again makes reference to the statets conten-

tions in light of these statutes (R. p. 31r). This charge

served to deny to petitioner a fair trial.

28



ARGUtll:lt'iiI

A.

SECTION L7-23-1, CODE Or ALABAI,IA, lg-15, PURSUANT TO

I{TIICII TIIE INDICTMENT IN TI.IIS CASB WAS RETUR}IE:D, TS SO

VAGUE, INDEII] NTTE, AND UNCERTAIN TIIAT SAID .STATUTE OFFENDS

TIIE CONSTITUTION OF ALABAMA, 190]-, AIITICLE 1, S]]CT]ON 6Ir/
AND THB ToUdT}ENTH A},IEND}4ENT To THE Co}ISTTTUTToN oF TIIEI

,/

UI.IITED Sta&sr 
/

Title tt-zs-t p.olia*J,

. t'Any person vrho votes more than once at any
election held in this stater ol? deposits mo::e
than one ballot for the same office as his vote
at such election, or kno',vingly attempts to vote
rvhen he is not entitled to do So, or is guilty
of any kind of iI1egal or fratid.ulent voting,
rnust, ofl convicti-on, be imi.rrisoned in the
penitentiary for not less than tr,vo nor more
than five yearsr at the discr:etion of the jury,,,

The statute fails bo def-ine v,rh.rt concluct const.ituLes an

iIlegal or fraudulent vote, what conduct cor-rsLitutes

voting more tlran once, or r.Jhat concluct const.i'LuLes clepcsi.t-

ing more than one vote as his ovrn. Depositing more than

one vo.te certainly does not imp1i, thaLt ?ny pei:son vrho

de,livr:rs rnore than one abscnL.ec vctc: to the cler:l;'s offi.ce
is griilty of vot:-Lnq Inoi:e than o;)cc-r. I{o eviclence: j.nLrocluced

at trial inclj.catecl th;rt tl:e petitioner aLtempterl to cleposit

mor:e t.han one ballot .fs her vote. Ttrus, the only por:t-ion

of Lhi: statute relevtrnt Lo ttre peti.ti.onc.r i-s that portio:r

29



dea.ling r^rith i11ega1 ol: fr:aruclu-t.cnt voting, ancl the statute
fai.ls to define r,yha.t- conduc.t constitutes illeqal or fraudu_
lent voting.

rn e,acting a criminar statute, there is an obligation
of the state to so frarne it that those who are to administer
it and those to whom it is to be administered may know what
standard of conduct is intendecl to be required ancl legisla_
tion may run afoul of the d.ue process clause because of the
failure to set up any guidance to those vrho wourd be raw
abiding or to advi-se a defendant of the nature of the cause
and accusation he is called to answer or to guicle courts in
the rarv enforcement. (Bolin_v'. state, 266 Ara. 256, g6 so_

2d 582). rrA person is not required. to speculate as to the
meaning of a statute at the peril of his freeclom.', (Lanve.tta
v. state of New Jersey, 306 u.s. 45r, 5g s.ct. 618). ,,The

intent of the legisration.must appear from the face of the
staLute." (standard oil v. .state , l7g Ala. 400, 5g so.2d
667). To have requirecl the petitioner to stand trial for
violation of a statuLe which.is vague, uncertain and indefi-
ni'be, deprived the petitioner of due piocess of law guaranteecl
by Article 1, section 6 of the constitution of Alabama and

the Four:teenth Amendment to the constitution of the united
States.

30



B.
. TIIE INDICT,}1trNT TN THIS CASE IS SO VAGUtr, UNCERTAIIJ

AND INDIJfIINITE THAT TITE CONVICTION UNDER T}ITS INDTCT}4ENT

DEPRTVES TITE PETITIONER OF DUE PROCESS OF LAW GUARANTEED

BY AITTICLE 1, SECTfON 6 OF TIIE CONSTITUTIoN OIr ALABAI,IA,

190I, AND THE FoURTEENTH AI'IBNDI,IENT To TIIE CONSTITUTIoN

OP TIIB UNITED STATES.

The indictment faired to advise petitioner of what

she is called upon to clefend. The indictment simpry

followed the language of the statute. The generar rure
that indictments or compraints, which substantialry folLow

tlre language of the state statut-e are sufficient, is not
applicabre where" statute creating the offense does not
descr:ibe with particurarity the constituent erements of
the offense. (Ilochma$ v. St.ate, 91 So.2d 495). The legis-
Lature failed in the statute. at issue to set forth the

elements of the crime and therefore the statute viorates
due process of law guaranteed by Article r, section 6 of
the Constitution of Alabamar. 190I', and the Fourteenth

Amendment to the constitution of the unitecl states. rn

order to comply with the constitutional recluirementr dr

ind.ictment should be sufficiently specific in its averments

to identify the accusations or charge, to enable the

accused to prepare fo:: his defense, to insure that the
juclgment wirl inure to his subsequent protecbion, and fore-

3t



close the poss-Li>.i1it1, 65 his beinq 1:,racecl in jeoparcty for
thc s.rnre of fensc, ancl to enr-rbl-e the court.after convicLion

to pronoLlnce jucl-qment on the record. (qrldge v. s.La.bc,

301 So-2d 285 (1.974)). See also Russelry:_€lgts, 369 U.S.

749 (1962) and Andrews v. sta'te, 344 so.2d 533 (Ara. criminar
Appeal, cert. clenied, 344 so.2d 538 (Ala. L977)) | wherein it
is held thaL the indictment must contain the elements of the

offense intenclecl to be chargecl ancl suffieiently apprise the

defendant of rvltat he must be prepare<l to meet.

Reading.the indic'tment as a rvhole, the accused shoulcl

receive sufficien't information to enabl-e him to reasonably

understand not only the nature of that offense bu.t the

par:ticu1-ar: arct or acts touching which tre mus;t be preparecl

vrith his proof . (Pgg]fq>'_v. Cii:y o.!_Log!_go_lgg, 43 AIa.

App. 20, L78 So.2d 832 (cert. deniecl , 278 Ala. 70Bf t7B

So.2d 837 (1965) ). "The indictrnen.t mus't state the facts
constituLing the offense in ordinary and concise lanquage

in srlclt a manner asi 'to enable a person of common urrclerstancl-

ing rne.ither a Sol-omon or a Sirnpletonr to knorv ryhat is
intenclecl." (l.ianson v. State , 349 So .2d,. 67, A.la. Criminal.

Appr:arr s; ccrt. ;;;;-,*=*".ro Bd (i\t ;r. '.Le't7) ; ch.nbc.r:s

_y_:_ S_L:*_e-, 364 Sjo- 2d 4).6 (1978) ) .

rn !g!lgf9_ vr_St;rte , 341 So.2c1

dovrn as vo:Ld for vaguen(jsis a chj-ld

thc-: s;ttrndtrrds gUt_A? bi i_ig_!_Le_ pain or

95'l , the Court struck

abuse sta'tutc rvtr-icir us;cd

grqil.rff punishrn+rrL- It.

32



is respec tf ul.Iy

frauclulen-t are

in Rallard.

said: ". . . a mere general accusation of
is not sufficient to support a conviction.

submitt.ecl that the stanclarcl iIleSJaI ;rncl

move vague and uncerbain that the stand;rrds

Likewise in Gordon v. State, 52 AIa. 308, the Court

,, 

t"""' voting

C.

THE EVIDENCE IN THIS CASE IS INSUFFICIENT TO SUPPORT

THE CONVICTTON OF THE PET]TIONER OF THE CRT}48 CIARGED.

The prosecutionrs evidence showed that the petitioner
picked up apprications for absentee voters; that she took

the apprications'to persons who authorized the petitioner
to assist them to vote; tha'b the persons were elderry and

illiterate; that they were registerecl voters and clesired

to vote in the pri-mary and, run-off elections. petitionerrs

testimony corroborated the testimony of the Staters wiLnesses.

The evidence further estab.lished that some of the appricants
authorized the petitioner to.a1low the barlots to come to
her home and that bhe petitioner thereafter took the ballots
to'the applican'bs homes vrhere she was authorizecl to f:ill out

the ballots by the applicants. The eviclence further showed.

that petitioner took severar applications to Tuscaroosa

and had them notarized by a notary public without the appri-

33



ci1r1.t being presen.t, and tirat mos;t of the barl-ots showerl

votes for thc sarrie person. rt is respectfully submittecl

that not even ar) inference of illegariby o.i: fraucl ca.n be

drarvn from those facts,

The record reflects, ancl it is rvell knorvn, that the
Alabama Democratic conference, a state-wide political
caucus primarily of blarcks, en<lorsecl a slate of cancliclates

and. activery support.ed those candiclaLes in each of the
elections in 1978. The record also reflects t.hat in talking
with each of the persons whose vote it is cont'ended rvas

unlawful, the petitioner showed them a list of the canclidatcs

endorsecl by the Alabama Democrartic Conference ancl i-nquired

as to rvhethor or not that is the way they desirecl to vote.

It is not unlarvful for one person to picll up more

than one absentee barllot. rt is not- unlalvful for one

person to assist more than one person in fil-ling out an

absentee apprication. rt j-s not unrar.rfur for .the person

assisting an absentee appricant to put his o',./n return
address on the absentee apprication. The failure of the

person to sign the barlot j.n the presence o.E'ilre nota.ry

publ.i-c does not. r:encler l.-he ba.Ll-ot itsc,lf :Li1egaI or
fraudurent. rt is not- i.Lrec1a1. or unLavrfur for onc person

to return to the office of the circu-it clerk more than one

absentee ba1lot-

34



Ccde of _A.}g!gn1g, 1975, Section 17-10-4 provides that
any. applicant for an absentee balIot may have the assistance

in filling out the apprication he desires. Adclitionalry, it
h.as been established through advisory opinions from the

AtLorney General, atrd Fecleral Voting Guiclelines that inf irm
and functionally illiterate persons are entitlecl to the

assistance of their choice in casting their ballots. This,

the petitioner sought to do, and a lack of ski1l and perfec-

tion cannot convert her actions into illegal and criminal

acts

fn Gordqn v- Stgte, supra, the court said: t'The

whole inquiry should be d.irected to the voters knowledge

of facts and to his diligence in acquiring the requisite

knorvleclge. If ignorant of the disqualified fac't ancl with-

out a want of cliligence under an honest belief of his

right to vote he should be excused though he had not the

right." The court also said:' "A11 crime exists primarily

in the mind. A. wrongf ul act 'ancl a wrongful intent must

concllr to constitute what the Iaw deems a crime."

I4oreover, the ballots complained of and introduced.

into evidence as the Statels Exhibits 1 through 39 were

not sho'"rn to have been returned to the Clerkrs Office by

petitioner beyond a reasonable cloubt. "In every criminal

case, the State is required to shovr beyond a reasonable

doubt ancl to the exclusion of every other reasonable

35



hypottresis every fact or eircumst-ance which j_s necessary
'to establish thc guirt of the clefenclant as charged in the
indictment. " (Branclon v. state , 193 so.2d 240, 377 Ara.
App, 32L). Thi;ra.* *"u to do, and ir is respecr-
fully submitted that the conviction, judgment and sentence

should be reversed.

D.

WIIERE MEANS BY I.IHrcH THE OFFENSE wAS coMr4rrrED rs
CTIARGED IN THE ALTERNATIVB, EACH ALTERNATIVE C}IARGE HAS

TO DESCRIBE THE I4EANS I.ITTH THE SA}.TE DEFINITENESS oR

PARTICULARITY AS WOULD }lA\rA BEEN REQUTRED HAD THE CHARGE

BEEN ItlADE TN A SE}ARATE COUNT. FAILURB To Do So RENDIJRS

THE BNTIRE INDICT},IENT VOfD.

The indictment in this case charged clisjunctivery that
the defendant: (1) did vote more than oncer or (2) deposit
more than one ballot for the.same office as her ownr oE

(3) did vote itlegally or fraudulently,

The arternative did vote.. illegarly or f raudurentl.y

fails to state an offense as required by Titre 15, section
B-25, 9oae of ll"b"n*, 1975.

See Young v, State, 348 So.2d 544 vrhere the court held

that each separate alternative charge must contain a substan-

tive offense under the 1aw, chargecl with thaL clegree of
certainty vrhich Title 15, Section 232 requires

36



!

Li.ker,rise i" rBcg..1..l9.,_,r:-j1.1!9, ).79 So.2cI 20 (I965) ,

the 'courL saicl: ". uncler the sLatute iL is pe::nrissible
for coun'ts to c)rarqe albr:nrative nleans by rvirich the offense
v/as cornmitted, but rvhen the means by vrhich the offense vras

committed are chargecl in the aI'ternative, each alterlative
charge has to describe the means rvith sufficient clefinite-
ness and par'ticularity as vroulcl have been r:equired had the
charge been made separately in a separate count.',

In , supra, the court
held tha'b if in a single count the offense is charged

disjunctively, and one of the alternatives fails to state
an offense, the defecL renders the i.rhole bad. see also
Dtrbose_v-. City of_ trolL!:Jcrner:y., I27 So.2cj B4g (1961).

Tt is re.spectfully submitted tha't the al.ternat.ive
charge, or clid i11egally or frauclulently vote, fails to
statc arn offense and thus the ent-i-re inclictinent is bad.

The trial court therefor:e erred in overrulinq petitionerrs
speciar plea, r'rhich was treatecl by the cour'L as a d,emurrer.

E.

TI.I[ CLOSTNG ARGU}4trNT OII THI' PROSIICU' TOI{ i{AS II\IPROPE:R

II'l TIIAf illjli AIIGUI'1EI'iT /TPPtrALlJD TO Ti],I PASSfoii riNI) PltrlJUDICIq

OF TII]J JiJRY T'I]E}?IiJI'ORE DENYTNG PI.;TTT',tONE1I. A F'AIR TIiIAI.,.

Tlte prosccuLor: dur:j.ng closing argurnonts mzrcle sci,eral

rel.er:enr:e:s to 'thc attit-uCe of thc:sc 1>cropJ.e (l-_.,1ack) tor.rar:cl

a

37



t

I

the tr:iaI. Thj.s point is siclnificant becau.se the jury
was.completely vlhite; there were no vrhj-te persons other
than Court officials in the courtroom; and the case

invorved the frustrated efforts of bracks to exercise
the right to vote. The prosecutor aLtempbecl to create
an image that brack people were trouble makers when he

alluded to the case he had to try after this tri al where

a. black man }-.irled anothe-r. The statement appearecl to
the passion and prejudice of the jury. ,'Tests in
determining whether new trial should be granted for
improper argument is not vrhether argument dicl unrarvfurly

inf luence verdict. but whether it might have clone so. "
(Irtcl,emore_v. Tnte-rnhpiicnal- union, etc=_, BB so.2c1 170 (1956))

"Appeal to race prejudice constitutes a most serious breach

of priviledge of argument to the jury.,, (Loeb v. }trebster,

104 S. 25, 3I2 A1a. 99).

F;

THE TRTAL COURT IN ITS ORAL CHARGB RECAPITULATED THE

TESTTMONY AND EVIDENCE OF THE.STATE I{ITHOUT RECAPITUI,ATING

THE TESTIMONY AND EVIDENCE OF PETITTONER THEREBY PREJUDICTNG

THE CAUSE AGAII.IST TTIE PETII.'IONER.

'I'he Court in its charge referred to the statute pur-

suant to which the petitioner rras indicted and, thereafter

chargecl Lhe jury as to the State's contention in light of

a

a 3B



l,

a,

a

the s;t-atute- Thc c--h;,:cJc hacr t-hc cf fcct of removi.ng ttre
cl'oa'I: of inrp31'LiaJ.it:y -recluired of the court. ,,?he jucrge
presiding at the tri.l of an acLion should at arl times
tnaintain an impartiar atti.ucle in his conduct and cternea,or,
a'd a status of neutrality betvzeen trre conbending parties

- rmproper concr*ct on the parL of a judge is incompatibre
with a fa-ir ancr imparbial trial. rt is irnproper for the
j'udge by act, conduct, gesture, or clemeanor, as by remark
or comment to indicate any opinion as to the weight or
sufficiency of the evidence." (99 c.J.s:., 5r (Tria.r)).

rt is respectfully submitted that in the instant case
the recapiturati-on by the court of the contentions of the
state ancl tire eviclence supportive thereof , v/ithout recap.itu_
lating thc contentions and eviderrce of appelrant tencrecr to
create in ilre mincts of the ju::or.s the imp::cssion that the
trial juclge rvas biaseil in favor of ilre st;rte, thus c1e,yi,g
to the apperJ-ant a fair, just a^d impai:tial triar.

rn the case of glS,:y_e-5-:1.. _q!a.!g, 109 So. L25, the courr
helcl trrat in charging trrc jury, it is the du.by of the judge
to give tho 1aw appr-icabre t. alr theorie.s presentecl by
the test-itnony, and, if he ::ecarp-itulates ttrc evi.dencc o, one
s-'i-cli:, i,> :.'ec.rPit-rrl-.rb-c ii: arso on thc.: other s.Lcie, ancr rrot
to indicale, rsy the m;rtter: or rnanner: of the char:ge, vrhat
hi-s o\^/rr vier.rs ar:e as to Lhc effcct of the testirnony. see
al..sc> {rrSlf9r.?_-11-__LEtl,-q, 4B so. BsB.

a 39



a

t coNCLqgpll

lv'ercfore, for the above ancr fo.regoirlg reason$, it
is respectfully submittecl that the court of criminal
Appears erred i, affirming the judgment of conviction and
sentence of the Circuit Court of pickens County.

Respectfully submitted,

GRAY, SEAY & LANGFORD

CERTTTTCATtr OF SERVTCE

r hereby certify trrat r 
'ave 

servecr a co;oy of the
foregoing Brief in support of pe'tition for !.,rr.it of
cerLiorari upon the uono::abr-e ctrarles Graclcrick, Attor:ney

.General for the state of Alabarna, 250 Aclministr.rtive Bu.i-1ding,
Montgom€yy, Alabama 36130 and the Honorable p, r. Johnston,
District A'Ltorney for the 24th Judicial circr,rit, r_20 3rd
Avenue, hI-E-, Ariceville, Alabama 35442; by placi,g a copy
of sane i, the unir.:ed states r4.riJ, postage 1>i:r:paid or.r L:his

, r.:':''
_ .\ _ day of Mtry, 1981.

!a

a

a

40

uoromon S. Sday, JE
352 Dexter Avenue
Montgomery, Alabama
(20s) 26e-2s63