Wilder v. State Court Opinion

    hat rhe never had
ed to her ad&ss
rl to do ro by the
rtr whose ballots
mee, the appellant
l and discuss with
r vote. The appel-
', on theee visits, a
by tlte Alabama
The rample ballot
)emocratic Confer-
r appellant atatcd
ry bellots contrary
e ebeentce votera.

ln questioned con-
of Sophia Spann.
, rhe took an appli-
use but Ms. Spenn
ication was left at
rn unidentified fe-
no further contact
,d ree Ms. Spann's
ned to "headquar-
rpellant's workers.

hat" after the bal-
xt rtcp was to get
tlis was done, an
g with the Howell
hem to the couil"
id tlrat at no time
lots to the cirrcuit

I that she visit€d
r on two oocasions.

Maggie Bozeman
rize rome ballots in
r,ary election. The
nnection with the
'as accompanied by
linnie Dunner Hill

I tttst Mr. Rollins
in onnection with
ion or the Creneral

tlrat rhe and Mr.
l to house to have

rat rhe eigned rome
:ntee ballote intp

WILDER v. STATE
Cto er' AbGr.An" /lol llcrd lll

Ala. 159

duced into evidence in this casel and that duct Vlitliamsv.llnitcd St tcES{f U.S.

some of the workers eigned some names, all 97, 7l S.Ct 676, 96 L.Ed. 7I'1, decided

done with the permission of the individual April 28, 1951; Scmns v. Unitd States'

voters. The people would "touch their hand 1945, 82i u.s. 91, 108-104, 66 s'ct 1(81'

to the pen." Therc was no fraud involved' 1(ts6, Eg L.&1. 1495. This court has rc-

The defense recalled Janice Tilley to the peatedly stst€d that criminal rtotutee

wiiness stand. Ms. Tilley identified five which fail to .,ve due notice that-1n- act

,p""ifi" applications for absentee ballots has been made criminal before it is\done

Jncerned-in this case. She testified that arc unconstitutional deprivationr of due

the circuit clerk's office received five absen- pnooess of law, Lanzetta v. State of New

tee ballots matching the names on the Jerxy,19g9,806 U'S' 451, 69 s'cL 618, 88

above five applications. The defense ad- L.El. 888; tlnitcd StEr6 v. L &hen
mitted evidence showing that only two of &wry h., 1921,255 U.S. 81, {l S.CL

those ballots were actually in the ballot box. 298, 65 L.&1. 6f6.

The defense restcd its case.

I
The prcsecution in thia case was pursuant

to $ 1?-23-1, Code of Alabama 1975, which

prcvides, in pertinent'part, as follows:

"Any pemon who votes morc than once at
any election held in this state, or deposits

more than one ballot for the same office
as hig vote at such election, or knowingly
attempts to votc when he is not entitled
to do so, or is gtilty of any kind of illegal
or fraudulent voting; must, on conviction,

be imprisoned in the penitentiary for not
less than two nor more than five years, at
the discrction of the jury." [Emphasis
added.l

The appellant contends that 5 l7-%l-1,
aupra, is congtitutionally impermissible be-

cause it iB "v8gue, indefinitc and uncer-

tain." Specifically, she ssserts that the

only portion of the ststute rclevant to her ie

that dealing with "illegal or fraudulent vot-
ing," and ahe cont€nds that the statut€
must fall because it does not define what
constitut€E illegal or fraudulent voting.

This court, in Chamben % Si8re, Ala.Cr.
App., 864 So.zd 416, cert. den., Ala., 864

So.2d 420 (19?8), noted the general princi-
ples involved in determining whether a

ststute is unconstitutional due to vague'
negs. There the court stat€d:

" The eaEential puryooe of the 'void for
v&guene88'doctrine ia to warn individuals
ofihe criminal consequences of their con-

2. The State lntroduccd thirty-nlne absentcc bal'
lots and ttrirty'nlnc appllcatlonr ln tllls caac'

"}Ve hsve aeveral times held that difficul-
ty in determining whether cettain mar-
ginal offenses are within the meaning of
the language under attack as vague doea

not automatically render a ltatut€ unoon-

stitutional for indefinitenesE. Unitcd
Statcs v. Wunfuck,1980, 280 U.S. 896,

899,50 S.Ct. 16?, 168, ?4 L.Ed. 6m. Im-
possible standstds of specificity are not
required. llnited Stat€s v. Petrillq1947,
&32 U.S. 1, 67 S.Ct. 1638, 91 LBl. 18?7.

The test is whether the language oonveyE

sufficiently definite warning as to the

proscribed conduct when measurcd by
common understanding and pmctices.

Cionnally v. General @nsttttction b.,
1926, 269 U.S. 885, 46 S.Ct. 126, ?0 L.&1.

322." [Quoting Jortan v. DeGorge' 9ll
u.s. 22i1, Eto-zitl,?l s.ct. ?08, 70?-7(8,

95 L.Ed. 886 (1951).

The court went on to observe:

"Vagueness challenges to statutes which

do not involve Finst Amendment fiee'
doms must be examined in the light of
the facts of the case at hand. U, S, v.

Powell, [42] U.S. 87, 96 S.Ct 816' 46

L.M.ZJ DJl, gupra; Unitd Stsres v. Ma'
zurie, 419 U.S. 644, 95 S.CL 710. 4i2

L.El.zt 706 (1e?5)."

In our opinion, the wordr "illegal or

fraudulent" as uaed in tlre foregoing atotutc
arc mercly deacriptive of the intent neces'

rary for the commigEion of the offenre. See

29 CJ.S. Electionc S &41, a (f966):



160 Ala

"Dxription of intnnL trlith respect to
wordr descriptive of intent such as 'will-
fully,''knowingly,' and'illegally' or'un-
lawfully,'etc., it would generally be suffi-
cient to follow the words of the statute.
The words of the statute, how'ever, should
be included in the indictment."

ln Wilsn v. Statc,52 Ala 299 (1875), the
Suprcme Court of Alabama observed:

"The offence denounced by the statute,
and intended to be descriH in the indict-
ment, is voting morc than once. An in-
dictment for a statutory offence is gener-
ally sufficient, when it is framed in or
punrues the words of the statute."

Clearly, the language of the ststute te-
flects a common underst8nding that "illegal
or fraudulent voting" ia voting morc than
one ballot for the same office, or attcmpt-
ing to vote when one is not entitled to do
so. The statute thus gives due notice of the
criminal con$quenc$ of such action.

tU Over one-hundred years ago, our Su-
pneme Court determined that the legislative
intent of the statute was to proscribe dupli-
cate voting. Gordon v. Statn,52 Ala. 308

(18?5); Wilgon v. Statc, supra We should

exerrcise -our-porve+*odeels+e-4. lgglplative
enactment void for indefiniteness only in
the most extreme circumstances. Associat-

ed Indwtria of Alabamq Ine" v. Britton,
Ala., fil So.zd 904 (19?9); Jan*n v. Statr,,
?f8 Ah. 166, l8? So.zd 4? (1962):

In Jansdg v. Sttfr,, supra, the Alabama
Suprcme Courf s€t out the following guide-
lines for the eirerrcise of this power:

'To be ,rr-,)btrrt*may declare legirla-
tive enactments to be inoperative and
void for indefiniteness or uncertainty in
meaning. But such power should be ex-
ercised only when a statute is so incom-
plete, m irreconcilably conflicting or so

vague or indefinite that it cannot be exe.
cuted, end the court is unable, by. the
application ol known and accepted rules
of onrtruction, to determine, witlr any
reasonable degnee of certainty, what the
legirlatue intended."

For ths rtatute in quertlon, we have the
certainty provided by the hrdon and WiI-

/
4OT SOUTHERN REFORTEB 2d gEBIES

son court! te grride ur in. detcrmining that
the legirfiitule intcnded to prohibit voting
more than once. Furthermorc, even if, as

appellant contends, the phrase "illegal or
fraudulent voting" is subject to differing
interpreta\ion!, we may rely on the nemain-
der of the'st8tute to provide a clear state
ment of whai-onduct is proscribed. Asso'
ciatd Industria of Alabma, Inc. v, Brit-
Con,.supra. In Associated Industn'es, supra,

the Alabama Suprcme Court observed that:

"[e]ven if the description ... is not fiee
fium ambiguity, that does not rcnder the
terms of the Act ineapable of enforce-
ment when a rcasonable interpretation is

available."

t21 We believe that a reasonahle intcr-
pretation of the predeeessor to $ 17-23-1,
supra has already been provided for us by
the eourts in Wilson, supra, and @tdon,
supra. Theneforc, applying the principles
of those cases, 8s well as the tests outlined
in Clrar4bers v. Statc, supra, to the statutel
and the facts of the case beforp us, we do i

not believe that S 17-23-1, supra, is uncon-'
stitutionally vsgue. \ilhen measured by
common understanding and pmctice, and a

long-acceptcd determination of legislative
intent, it providea clear notice of what con-

duct is prohibitcd. See Aaderpn v. Unitcd
St8tec 417 U.S. zll-m n.18,9( S.CL n68,
W n.18, 4l L.FA.%I20 (1974).

II
Appellant insirtE that the indictment in

thia case was lxr vague, uncettain and indef-
inite that it failed to charge an offense or
to inform her of the naturc and caus€ of the
accusationr againot her.

l3I The general rule in Alabama is that
it is sufficient to charge the elements ol the
statutory offense in the words of the stat
utc. Gayden v. Statc,268 AIa.468,80 So.zd

501 (1e55).

The only qualification to this rule is that
the indictment must apprise the accused

with rcasonable certainty of the naturc of
the aeusstion against him, so that he may
prepsre his defens€ and plead the judgment
of conviction as a bar to any suboequent

\-
)
I

I

\ptusecution for the
Srst€E v. Simmonq 9
(18?7).

ln Gayden v. Stal
Supreme Court set
ments for I ptppe
tracking the wordr
court said that, alt}
the ststute msy be
scription of the offe
,?.a!ied by the facts
forming the accused

,setting forth with p
;place, and cjrcumsllTFt 

rum v. Star
Court of Alabame n
general accusation o

not sufficient to su'
allegation of "illega
fied in what the illel
er it was a want ol
voting more than on,

tll Our examinal
the indictment with
the foregoing psrag
indictment follows tl
ute. [t is a plain, cor

ten statement of the
tuting the offense ch
also sufficiently info
the particulan of tl
could prepare her de

A sufficient indictr
illegal voting:

i'[m]ust ordinarily
lied on to constitu
lege that the elec
fense was oommit'to 

law, and must d,

the intent with wh
mitted." 29 CJ.S.

A rcview of the t
up the indictment i
following:

Count one made tlr
she did illegally or
voting morc than ol
than one ballot as her
ic Prirnary Bun0ff
a, 1978.



n. determining that
to prohibit voting

ermone, even if, as
phrase "illegal or

nbject to differing
rcly on the remain-
lvide a clear state-
rpuocribed. .l{sso-
Dc,ma, Inc" v. Brit-
d Industn'es, rupra,
ourt obs€rved that:
ion... ignotfice
loes not rcnder the
rpable of enforce-
,le interpretation is

r rcasonahle- inter-
scor to S fi-28-1,
provided for us by
npra, and Candon,

'ing the principles
r the tests outlined
pE, to the atatutel
: befone us; we do j

-1, 8uprz, ig uncon- I

hen measurrcd by
,nd pnactice, and a
Lion of legislative
rotice of what con-
lnderwn v. Unitcd
n.18, 94 S.Ct. 225.3,

(1e74).

the indictment in
rcertain and indef-
rge an offense or
e and cause of the

n Alabama is that
he elements of the
words of the stat
lAla. 468,80 So.2l

p this rule is that
prise the accuged
of the naturc of

n, ro that he may
lead the judgment
o any ruboequent

i1

r orcsecution for the ssme offense' Unitcd
"St;rtas v. Simmons,g6 U.S. Bffi,?A L'Bl' 8f9
(t877)-

ln Gayden v. Statn, supra' the Alabama

Suprcme Court s€t forth certoin rcquire-

ments for a properly drawn indictment

tracking the words of the ststute. The

court ssid that, although the language of

the statute may be used 8s a general de-

acription of the offense, it must be accom-

Aelid by the facts and circumstances in-

lorming the accused of the specific offense,

,setting forth with particularity the "time,
iplace, and circumstances" of the crime.

ffi?rru- v. Statc, supra, the Suprcme

Court of Alabama reeognized that, while a

general accusation of "illegal voting" was

not sufficient to support a conviction, an

allegation of "illegal voting" which speci-

fied in what the illegality elnsieted, wheth-

er it was a want of legal qualification or
voting more than once, would be sufficient.

tl] Our examination and comparison of
the indictment with the ststute shown in
the foregoing paragraphs rcveals that the

indictment follows the language of the stat-
ute. It is a plain, concise and definite writ-
ten statement of the ess€ntial facts consti-

tuting the offense charged. The indictment
also sufficiently informed the appellant of
the particulars of the offense so that she

could prepare her defense.

A sufficient indictment for fraudulent or
illegal voting:

f'[m]ust ordinarily s€t forth the facts re-

lied on to constitute the offense and al'
lege that the election at which the of'
fense was committed was held pursuant
'to law, and must describe the election and

the intent with which the acts were com-

mitted." 29 CJ.S., $ &41, supra.

A neview of the three counts that made
up the indictment in question shows the
following:

Count one made the appellant awarc that
ghe did illegally or fraudulently votc by
voting morc than once by depositing morc
than one ballot as her vote in the Democrat
ic Primary Bun0ff Election of September
26, 1918.

WII.I)ER v. STATE
cltc er AlrCrIpO.'Ol scrd lll

Ala. l6f
Count two informed the appellant that

she did cast illegal or fraudulent atieentee

ballots by voting mone than one ahentee
ballot or by depositing mone than one ab
sentee ballot as her vote in the Democratic
Primary Run-off election of September 26,

1978.

Count three notified the appellant that
she did cast illegal or fraudulent absentee

ballots by depositing, with the Pickens

County Circuit . Court, abeentce ballots
which were fraudulent and that shc kney
to be fraudulent.

A more concise and particular ststement
informing appellant of the charges ahe

would be rrquir.ed to meet is difficult to
envision.

It is clear that the indictment was suffi-
cient and the trial court was correct in
overruling the appellant's demuntr'

III
The appellant complains that the Stst€'s

evidence was insufficient to support her
eonviction. She argues that the tcstimony
,presented by the Stste did not "ttveal a
single instance of unauthorized voting."
The appellant claims that there werc only
"some technical imperfections employed" in
her assistance of absentee vot€rs.

A brief summary of the testimonY of
Sopliia Spann, Lucille Harris, Lula Deloach
and Robert Goinee rcveals evidence con-

. trary to appellant's ass€rtion. All these

ryitnesses teEtified that they did not vote by
absentee ballot, yet absentee ballots werrc

voted in their names.

Mrs. Spann's signature, repr.esented by an

"X," Bppeattd on the application for an
ab,sentee ballot witness€d by the appellant'

. but Mm. Spann atated that she could rcad,
write, and sign her own name. In addition,
she pointed out that her name was miss-
.pelled on the absentee ballot, and that she

had voted at the polls and had never aought
an absent€e vote application.

Lucille Harris t€stified that the appellant
brought her a paper to fill out ao that ghe

would not have to go to the polla. She