Brief in Support of Writ of Certiorari to the Court of Criminal Appeals of Alabama

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IN THE SUPRE14E: COURT OI' AI,ABA!{A

a

MAGG]E BOZEMAN,

Appellant,

VS.

STATE OF ALABAMA,

AppeJ.J.ee.

)
)
)
)) s.c. No.
)
)
)
)

AppeaL frotn Pickens County Ciicuit Court

BRTEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMTNAI. APPEALS OF AI,ABAMA

S'ubmitted by:

Solomon S. Seay, Jr.
Gray, Seay & Langford

' 352 Dexter Avenue
Mgntgomery, Alabama 36L04
(20s) 26e-2563

Attorney for Petitioner

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i

i

GJ



TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases
Statutes and Other Authorities

STATEI4ENT OF TIIB CASE

Page

iii
l- l- l_

iv
1

5

I
L7

STATBI'IENT

STATEMENT

ARGUIIENT

OF THE ISSUES

OF FACTS

onstitution of Alabamal Article
ection 6, and the Fourteenth-AmenanEtr

s"

B. The indictment in this case is so vacruearrc rr.lLlr-L.: Lruell u rll tllLs case l-s so vacf ue ,
rtain and indefinite that the-convl-C-

tion under this indictment EepEIves- the
titioner of due process o aw quaranteed
Article L, Section 6 of the ConEEf-t[ETol

of Alabama, 1901, and

States

D. The fact that theThe ta_ct that. the pre9egulgr_rfg_gq_lrE

A. Section L7-23-1, Code of Alabama, L975.pursuant to whrch the indictment in this
tet;crse wds reEurne<lr ].S So vague, Lndetl-nite.

an(l uncertal-n that said statute offends the

t7

C. The evidence in this case was i.nsufficientto s=uppolE the r
of the offense chaiged.

19

2t

24

P9I9gualifiecl member of the 'pe:titj_one;ls race
from the jury panel constit.uted a denial

-

gf due process and equal protection
unds.

Wher? means_ly_lIhish_the_ gf fense vras
commibted is charged in the arlternative.
e 6-Aescr:i5e*

E.

Eiie n€an.s wlEh-El-e-sffis or



particularity as would have been
in

a separate count. , Fhilure to do=o-a separatg coung. : Tai+ure to do soiend .......

CONCLUSION

CERTIFICATE

a a a a a a a a a Oa a o a o a a a a ao a a a a a a a o aa a a a a

oF SERVICE ..............o....o......o.

27

30

30

L1



TABLE OF AUTHORITIES
Cases Paqe

6, 20,

18

28

6, 23

5, 20

6, 20

6, 24

5,'1 , 20, 2g

6,

6, 21,

5, 19

5, 18

20

24

5, 20

5, L7

Andrews v. State, 344 So.2d 533 (Ala.
-@aI, cert, denied,

344 So.2d 538 (Ata. 1977) ) .

Bellgrg. r. State , 341 So. 2d 957 .

Bolin v. State , 266 A1a. 256, 96 So.
@
Boulden v. State, L79 So.2d 20 (1965).

Brandon v. Stq_te, 193 So.2d 240, 277@r.
B_ridge v. Statg., 301 So.2d 286 (1974).

Chqrnpers v. State, 364 So.2d 416 (1978).

Cox v. S!_a!g, L99 So. 805, 240 AIa. 368.

Ponanay v.. CiIV o , 43 Ala.
App. 20, 178 So.2d 832 (cert.
denied, 278 Ala., 708, 178 So.2d.
837 (196s) ).

Dubose v. City of MOntgo{nery , L27 So.
2d 849 (1961) .

Gordon v. State, 52 AIa. 308.

Hochman v. State, 91 So.2d 495.

Lanvetta v. State of New Jgrsey., 306_

llanson v. State, 349 So.2d 67, Ala.
@eaIs, cert. denied,

349 So.2d 86 (Ala. 1977).

5, 19

21, 28

5,

6,

5,

6,

2L

23

Itlorris v. State, 4L So. 274, 146 AIa. 66.

Russell v. State, 369 U.S. 749 (1962).

Standard Oil v. Stale, L7B AIa- 400.

l-l-L



State of Louisiana v. Rambnd Eames,
365 So.2d 1361.

[waiq v. Statpr 380 U.S. 202, 85 S.Ct.
@d,zd 7sg.

UrS. y. I,Iaddogr 492 E.2d I04, cert.
denied, 95 S.Ct. 92, 4L9 U.S.
851, 42 L.Ed.2d 92.

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

Statutes gn_d Olher Aut}Orities

9ode of Alabama, 1975, Section

6, 27

6, 27

15-8-25

17-10-4

L?-23-L

6, 24

6, 28

28

23Code of AIabaEB, 1975, Section

Code of Alabarna, 1975, Section L7

1v



STATEMENT OT' THE CASE

The Grand Jury of pickens County,

Alabama, in its November Session, l-g7},

Petitioner:

in the State of

charged that the

COUNT ONE

did vote more than oncer or did deposit more
than one ballot for the same office as her
voter or did vote i1legal1y or fraudulently,
in the Democratic primary Run-off Election
of September 26, L978,

COUNT TWO

did vote more than once as an absentee voter,
or did deposit more than one absentee baIlot
for the same office or offices as her vote,
or did cast il1ega1 or fraudulent absentee
ballots, in the Democratic primary Run-off
El-ection of September 26, L978,

COUNT THREE

did cast illegal or fraudulent absentee
ballots in the Democratic primary Run-off
Election of September 26, 1928, in that
she did deposit with the pickens County
Circuit Clerk, absentee ballots which were
fraudulent and which she knew to be fraudu-
lent, against the peace and dignity of the
State of Alabama. (Transcript of the Record,
page 2ll, 2L2).

Prior to the trial, petitioner entered a special plea

which alleged, inter alia:
I. That the indictment fails to state an offense

cognizable by this Court.

2. That the indictment fails to state an offense

under the laws of the State of Alabama.



3. That the indictment is vague, uncertain, and

indefinite and fails to reasonably apprise
the defendant of what it is she is called
upon to defend. To require or compel the
defendant to stand trial on said vague,

indefinite and uncertain indictment deprives
defendant of due process of 1aw guaranteed by

Article 1, Section 6 of the Constitution of
Alabama, 1901, and the Fourteenth Amendment

to the Constitution of the United States.
The statute, pursuant to which the indictment
in this case was returned, is so vague, indefi-
nite, a1rd uncertain that defendant cannot

reasonably anticipate what conduct is condemned

thereby. Said statute therefore offends the
Constitution of Alabama, 1901, Article L, Sec_

tion 6, and the Fourteenth Amendment to the
Constitution of the'United States.

The indictment iri'. this case is so broad in
its terms as to sweep within its prohibition
conduct which the State of Alabama cannot

constitutionally prohibit, Defendant is
thereby deprived of due process of law in
violation of the Constitution of Alabama,

1901, Article 1, Section 6, and the Fourteenth

4.

5.



Amendment to the constitution of the united
States.

6- The statute, pursuant to which the indictment
in this case was returned., is so broad in its
terms as to sweep within its prohibition cond.uct

which the state cannot constitutionarly prohibit.
said statute therefore offends the constitution
of Alabama, Article l, Section 6t and the
Fourteenth Amendement to the constitution of
the United States.

7 - The indictment in this case has the sore purpose

and effeet of frustrating the defendant and

other brack residents of pickens county, Alabama

in their efforts to exercise the right to vote
guaranteed to them by the constitution and laws

of the united states. The indictment thus denies
the defendant due process of law and the equal
protection of the raw guaranteed b1z the constitu-
tion of the United States. (f.n. ZLB-220).

On, to-wit, November 1, L9-19, the trial judge clenied

and overruled petitioner's special p1ea. (f.n. 11), The

triar commenced in th.is case on November r, LgTg and on

November 2, 1979, the jury found the petitioner guirty as

charged in the indictment and fixed her punishment at four
(4) years in the penitentiary. (r.n. 223).



OD, to-wit, November 28, lg7g, petitioner filed a

Motion for New Trial. (f.n. 224-232). Said motion was

denied by the circuit court on February 27, 19g0.

On, to-wit, March L2, 19g0, petitioner gave Notice
of Appear to the court of criminal Appears from the verdict
of the jury, the judgment and sentence of the court adjudg-
ing the petitioner guir-ty and fixing her punishment, and

from the order of the court dated February 27, 19go denying
petitionerrs Motion for New Tria1. (T.R. 236).

Extensions of time r^/ere granted by the circuit court
and by the court of criminal Appeals for the court reporter
to comprete and fire the reporterrs transcript with the
Clerk of the Circuit Court of pickens County.

The court of criminal Appeals affirmed the judgment

of the circuit court of pickens county on March 3r, l9gr.
Application for rehearing was filed on April 14, lgBr and

overruled on April 21, 1991.

This brief is submitted in
Peti-tion for Writ of Certiorari
Appeals.

support of Petitionerrs
to the Court of Criminal



STATEI{ENT OF TrrE TSSUES

The issues presented for review are as follows:

1. WHETHER SECTTON L7-23-1, CODE Op ALABAMA, L975,
PURSUANT TO WHICH THE INDICTMENT IN THTS CASE
WAS RETURNED, IS SO VAGUE, INDEF'INITE, AND
UNCERTAIN THAT SAID STATUTE OFFENDS THE
coNSTrruTION OF ALABAI{A, 1901, ARTTCLE 1,
SECTION 6, AND THE FOURTEENTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES?

Bolin v. State, 266 AIa. 256, 96 So.2d 582.

Lanvetta v. State of New Jersey, 306 U.S. ASL..

Standard Oi1 v. State, 178 A1a. 400, 59 So.
2d 667.

2. WHETHER THE TNDICTI{ENT IN THIS CASE IS SO VAGUE,
UNCERTAIN, AI{D INDEFTNITE THAT THE CONVICTTON
UI{DER THIS INDTCTMENT DEPRTVED THE PETITTONER
OF'DUE PROCESS OF LAW GUARANTEED BY ARTICLE L,
SECrION 6 OF rHE CONSTITUTTON OF ALABAI4A, 1901.
AIID THE FOURTEENTH AMENDMENT TO THE CONSTITUTION
OT'THE UNTTED STATES?

Hochman v. Stater'9I So.2d 495.

Bridge v. State, 201 So.2d 285 (L974).

Russell v. State,. 369 U.S. 749 (1962) .

Andrews v. State, 344 So.2d 533 (AIa. Criminal
@. denied, 344 So.2d 518 (AIa.

Le77l).

Donahay v. City 9f l{ontgomery, 43 AIa. App. 20,
178 So.2d 832 (cert. denied , 278 A-l-a. 708,
178 so.2d 837 (1955)).

Manson v. State, 349 So.2d 67, Ala. Criminal
@rt. denied, 349 So.2d 86 (Ala.

t977)).



Chambers v. State, 364 So.2d ALG (1e 7B)

Ballard v. State, 341 So.2d 957.

Gordon v. State, 52 Ala. 308.

3. WHETHER THE WEIGHT OF THE EVIDENCE IN THIS CASE
IS SUFFTCIENT TO SUPPORT THE COIryICTION OF THE
PETITIONER OF THE CRIME CHARGED?

Brandon v._State, L93 So.2d 240, 277 ALa.App.
32L.

Cox v. State, 199 So. 806, 240 AIa. 368,

Morris v. State, 4L So. 274, 146 AIa. 66.

U.S. v. Irladdox, 492 f.2d 104, cert. denied
@2, 419 u.s. B5i, 42 L.Ed.zd 82.

4. WHETHER THE PETITIONER WAS DENIED DUE PROCESS OF
LAW AND THE EQUAL PROTBCTION OF THE LAWS IN THE
FACE OF A SHOWING THAT THE PROSECUTOR UTILIZED
SUBSTANTIALLY ALL OF HIS PEREMPTORY CHALLENGES
TO STRIKE EVERY MEI1BER OF' THE PETTTIONERIS RACE
FROM THE JURY PA}IEL ABSENT AN EXPLA}IATION ON
NON.RACIAL GROUNDS?

State of Louisiana v. Bamong__Eames, 365 So.2d

Srvain v. A1abama, 380 U. S. 202, 85 S. Ct. 824 ,ffi9.

5. T{HETHER THE ENTIRE TNDICTMENT IN THIS CASE TS
VOTD WHERE THE OFFENSE IS CHARGED IN THE ALTER.
NATIVE AND ONE OF THE ALTERNATIVES DOES NOT
CiARGE AN OFFENSE WITH THE CERTAINTY AND
DETTNTTENESS REQUTRED By SECTTON 15-8-25,
coDE olr ALABAMA I L975?

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

Boulden v. State , L79 So.2d 20 (1965)



DonaLray v. 9ity of. Montgomery , 43 AIa.App. 20,
L7B So.2d 832 (cerr. denied , 278 A. t. 7OB',
178 so.2d 837 (196s)).

Dubose v. City qf Montgomeryr l-.Z7 So.2d B4g



STATEMENT OP FACTS

Janice Ti1.1ey, called as a witness by the State,
testified as follows: that she is employed. by the office
of the circuit clerk of Pickens county, Arabama (t.n. L2');

that a person desiring to vote absentee firrs out an

applicatiOn, picks up their supplies and either mails

it in or brings it in (f.n. 13); that the application has

to be signed by the person requesting the absentee barrot
(r.n. 14); that after the application is returned to the
Clerkrs office, the C1erk checks to see if the person is
a registered voter (T.R. 15); if sor a bal1ot is either
mailed to the address on the apprication or the appticant
picks it up; and vhen the ballot is returned. to the
Clerkrs office it. is sealed (T.R. 15), and^ placed in a

ballot box in the Clerkts office; that during the week

prior to the September 26t.1978 Democratic Primary

Run-off Election, petitioner picked up approximately

twenty-five to thirty applications (f.n. 1B).

On cross-examination, the witness Ti1ley testified
that it is not necessary for the applicant to pick up

the application (f.n. 25); that a person can pick up an

application for another person (t.n. 27); that she does

not remember getting any ballots from petitioner (:f .n. 29)

Charles Tate, called as a witness by the State,

testified as follows: that he is employed. in the office



of the District Attorney, 24th Judicial circuit (T.n. 34) i
that he assisted in the opening and examination of the
contents of the absentee ballot box (f.n. 35); that an

examination of the baLlots in the balrot box reveared

that thirty-nine of the ballots had been notarized by

PauI C. Rollins (f.n. 37) i that the address of Mr.

Rollins is in Tuscaloosa, Alabama; that he examined the

records in the clerkrs office and made copies of the

apprications which were filed requesting those thirty-
nine ballots (T. R. 3 8 ) .

The applications were admitted into evidence over

the objection of the petitioner as Statets Exhibit 3

through 35A, The baLlots were introduced into evidence

over the petitionerts objections as staters Exhibit 4

through 42.

Paul C. Rol]in.s, cal1ed as a witness by the State,
testified as follows: that he is a mortician whose

place of business is Tuscaloosa, Alabama; that he is
also commissioned as a notary public (T.R. 54); that he

has known the petitioner, Maggie Bozeman, for approximately

nine or ten years; that he notarized the ballots of Bessie

Bil1ups, Opal Thomas, Linda Barnes, Roosevelt Windom,

Julia Cousett, and the ballots of the other persons whose

names appeared on the thirty-nine ballots introduced into
evidence by the State; that they were notarized in his



office in Tuscaloosa; that Julia Wilder, Maggie Bozeman,

and. two or three other young ladies were there; that he

did not personally know any of the people whose ballot
he notarized.

On cross-examination, the witness RolLins testified
that he does not know who wrote the names on the ballots
(r. R. 73\ .

Maudine Latham, called as a witness by the State,

testified as follows: That she is a registered voter

in Pickens County; that she signed the application to
vote absentee (T.R. 89), that was brought to her by

Clemmice Grice and his wife (T.R. 90); that she did not

sign her name to,the ballot and did not authorize any-

body else to sign her name to the ballot (f.n. 91); that

her daughter, Lula, sent the Gricets by to bring that
baIlot (r. n. 92) .

She also testified. that'she does not know Maggie

Bozeman and has never seen her before. (f.n. 93).

Annie Billups, called as a witness by the State,

testified as follows: that she lives at 102 Tilley

Hamlett, that she never lived at 601 10th Avenue North

West (f.R. 95); that she was registered to vote in the

September 26th Democratic Primary Run-off; that she was

sick and did not get down at the National Guard and that

Iulrs. Julia made the rrxrr for her because she could not write

10



(T-R- 95); that Juria wilder made the .xrs, on the barlot
(r. n. 9B) .

on cross:examination, the witness Birlups testified
that she had known Julia Wilder a long time; that Ju]ia
IVilder was a good friend; that 601 10th Avenue North-
west is Julia Wilderrs address; that she had no objection
to Mrs. wilder helping her with the apprication (T.R. 100);
that she wanted to vote, and courd not go and vote; that
Mrs. wilder put the t'x!'! on there with her consent; that
Mrs. wilder brought a sampre ballot showing rvho we were

voting for; and she told her who we was voting for and

asked her if that was arr right (T.n. 101); Lhat so far
as she is concerned, the ballot is her vole; that when

Mrs. wilder brought the barrot to her petitioner l1aggie

Bozeman was not there; and when Mrs. Wi1der put all the

"xts" on the baIIot Mrs. Bozeman was not there (r.n. to2)i
that Mrs. Bozeman did not assist her in any way in voting
in that particular election (T.R. 103).

on_ re-cross exsrmination, the witness Bilrups testified
that she was satj-sfied with what l4rs. wilder did in helping
her to vote absentee. (T.R. 105).

Mattie Gibson, called as a rvitness by the State,
testified as follows: that she lives at 206 Tilrey Hamrett,
Aliceville; that she has never lived at 532 10th Avenue

Northwest; that she is a registered voter; that she ciid

11



not write an application for an absentee barlot for the
september 26th primary Run-off Election, but she marked

it' (T-R. 108); that she cannot read or write; that Ms.

Julia wilder brought.the application to her (T.n. r09);
that she asked Julia wilder to bring it to her and tord
her that she wanted to vote. when shown the barrot marked

as staters Exhibit 3-38, the witness Gibson testified that
she had seen it; that she had made her mark on that paper,.

that sister Julia wilder put her name on there but she made

a mark there (T.R. 110).

on -cross-examinatjon, the witness testified that
Minnie Hill came out to her house before the primary

Run-off Erection.and brought the barrot, and that Mrs.

Julia wilder had the apprications (t.n. 111); that when

Mrs. wilder first came out she had a sample barrot and

told the witness who we was voting for and asked if she

would vote along with the iest of us and the witness
agreed; that she had no objection and that Mrs. wirder
and Miss Hilr had done what she wanted done (t.n. 1r2);
that she knows Maggie Bozeman; that Mag.gie Bozeman was

not there when Mrs. wilder brought the apprication, nor
was Maggie Bozeman there when Mrs. Hilr came back and

broughtthe barlot and that as far as she knows, l[aggie

Bozeman had nothing to do with the application or the
ba1lot. (r. n. I13) .

t2



Nat Dancey, calred as a witness by the state, testified
as follows: that he l-ives at ri11ey Hamlett, that he has

never lived ab 601 loth Avenue Northwest in Aricevilre
(r-n- 114); that he is a registered voter; thaL he remembers

when Bill Baxley and Fob James were having a run-off to see

who was going to get the Democratic nomination and that was

in the second war (T.R. rr5); that he does not know whether
he had ever seen the application before (f.n. 116); that
the name Nat Dancey that appears on the barlot was not
signed by him and that he ain't told r4aggie nothing.

on cross-examLnation, the witness Dancey testified
that he remembered Julia wilder bringing the application to
his house (r,n. L20); that Juria wilder was at his home

when she talked with him about voting (T.R. t22); that he

had never been in a courthouse before in his life (r.R.
123) - The state and the defense stipulated that Nat
Dancey was previously in a trial of the same charge against
JuIia Wilder. (T.R. 125).

Jalie Richey, caIIed as a witness by the State,
testified as follows: that she lives at 118 Tilley
Hamlett and has never lived at 601 10th Avenue North;
that she is able to read and write (T.R. L2s); that she

voted an absentee ballot in the run-off erection; that
Julia Wilder brought a paper around; that a lady came

with her but it wasn't Maggie Bozeman (T.n. 126).

13



on crgss-examination, the wLtness Richey testified
that she has known Ju1ia Wilder about two years; Julia
wilder has helped her to vote; that she courd not reave

the house and Juria wilder would show her how she could

vote without going to the polt, and by doing that she

put her I'x" on a piece of paper (f.n. t30); that she had

no objection to the way Juria marked her ballot; that she

tord Julia it wourd be all right; that she has not had

any conversation with Maggie Bozeman about any voting
(r.n. 13r); that Maggie Bozeman had not been to her house

or talked to her about any absent,ee ba1lot.
Fronnie B. Rice, called as a witness by the State,

t,estified as follows: that she lives at I27 Tilley
Hamlett; that she is registered to vote in pickens county;

that she remembers making an absentee ballot for the
September Democratic Primary Run-off; that she filled
out the application; that 'she signed the ballot that came

to her house (T.R. 136), and'that she remembers marking

some .txlsrr on here

On cross-examinatioq, the witness.Rice testified that
the application had her address on it (t.n. 149); and. that
she remembers the ballot coming to her house in the mail;

that she has known Maggie Bozeman for about seven years;

and Maggie Bozeman has.never lived at 127 Ti1ley Jamlett;

that ltlaggie Bozeman, &s far as she knows, did not have

L4



anything to do with the application or the ballot (T.R.

1so).

On re-cross examination, the witness Rice testified
that after she received the barrot in.the mair, she gave

the ballot to Ju1ia Wilder.

Lgu Sommerville, cal1ed as a witness by the State,
testified as follows: that she went down to the camp,

that Jap camp where they were voting at; that she took

a baIlot and marked her name on it and sister Juria wirder
wrote her name for her (r.n. 155); that she voted for another

black man and two white man; that she went to l4aggie Bozemanrs

house and asked for an absentee baI1ot and. asked. Maggie if
she wourd sign her name if she put her ,x". on continua-
tion of direct examination by Mr. Russell, the witness

sommerville testified that Maggie Bozeman ain't never

wrote nothing down for her; that Julia Wilder and her

daughter is the only two ever wrote any ballots for her,
and that them is the only two (r.R. 169).

Sophia Spann, called as a witness by the State,

testified as follows: that she lives i; a place they

call Cochran in Pickens County and has lived there for
now on about approximately twenty-five years (t.n. I78);
that she knows the petitioner tlaggie Bozernan; that
petitioner Maggie Bozeman did talk to her about voting
one time; that Maggie Bozeman came to her house and asked

15



if she had voted (T.R. 182); that the witness tord her

"yes, she had been to cochran and voted" and that the
petitioner left and said she just wanted to know had the
witness voted (f . R. l-82) .

Lucille Harris, ca1J-ed as a witness by the State,
testified as forlows: that she lives in Ti1ley Hamrett

and is a registered voter and votes at the National Guard

Armory in Aliceville (f .n. I87); that Julia Wild.er brought

an absentee apprication to her; that she had not asked

Mrs' wilder to bring the application (r.n. rBB); that she

never received a ballot; that she did not sign the barlot
that had been marked as staters Exhibit 3-9; that she did
not teII anyone they could vote for her in this election
(r. n. 189) .

On cross;examination, the witness Harris testified
that she did not knorv Maggie Bozeman but had seen her
down at the polLing place; that she signed the applica-
tion for an absentee ba1lot (T.R. 190) and that the

application had her return address on it (t.n. I9O).

16



ARGUI\IENT

A.

SECTTON 17-23-1, CODE OF ALABAMA, 1975, PURSUANT TO

WHICH TTIE INDICTMENT IN THIS CASE WAS RETURNED, TS SO

VAGUE, INDEFINITE, AND UNCERTAIN THAT SAID STATUTE OFEENDS

THE CONSTTTUTTON OF ALABAMA, 1901, ARTICLE L, SECTION 6,

AND THE FOURTEENTII A}4ENDMENT TO THE CONSTITUTTON OF THE

UNITED STATES.

Section L7-23-l provides:

"Any person who votes more than once at any
election held in this stater or deposits more
than one ballot for the same office as his
vote at such election r ot knowingly attempts
to vote when he is not entitled to do sor oris guilty of any kind of illega1 or fraudulent
voting, mustr or conviction, be imprisoned
in the penitentiary for not less than two nor
more than five years, dt Lhe discretion of
the jury. "

The statuLe fails to defLne what conduct constitutes an

iIIegal or fraudulent vote, what conduct constitutes
voting more than oncee or what conduct constitutes
depositing more than one vote as his own. Depositing

more than one vote certainly does not imply that any

person who delivers more than one absentee vote to the

clerkrs office is guilty of voting more than once. No

evidence introduced at trial indicated that the petitioner

attempted to deposit any ballot as her vote. Thus, the

only portion of the statute relevant to the petitioner is

L7



that portion dealing with illegaI or fraudulent voting,
and the statute fails to define what conduct constitutes
illegal or fraudulent voting.

rn enacting a c.riminal statute, there is an obliga-
tion of the state to so frame it that those who are to
administer it and those to whom it is to be administered
may know what standard of conduct is intended to be

required and legislation may run afoul of the due process
crause because of the fail-ure to set up any guidance to
those who wourd be raw abiding or to advise a d.efendant
of the nature of the cause and accusation he is caIIed
to answer or to guide courts in the raw enforcement.
(Bo1in v. St,ate, 266 AIa. 256, 96 So.2d 582). ,,A person
is noL required to speculate as to the meaning of a

statute at the peril of his freedom. r' (lanvetta v. State
of New Jersey, 306 U.S. 4Sl-, 59 S.Ct. 619). ',The intent
of the legislation must appear from the face of the
statute." (standard gil v. state I t7B Ala. 400, 59 so.2d
667). To have required the petitioner to stand trial for
violation of a statute which is vague, .uncertain and

i-ndefinite, deprived the petitioner of due process of
lavr guaranteecl by Article 1, section 6 of the consti-Lution
of Alabama and the Fourteenth Amendment to the Constitution
of the United States.

18



B.

THE INDICTMENT IN THTS CASE IS SO VAGUE, UNCERTAIN

AND ]NDEFINITE THAT THE CONVTCTION UNDER THIS INDTCTMENT

DEPRIVES TIIE PETITTONER OF DUE PROCESS oF I.AW GUARANTEED

BY ARTTCLE 1, SECTION 5 OF THE CONSTITUTION or ALABAMA,

1901, AND THE FOURTEENTH A}4ENDI{ENT TO THE CONSTITUTION

OF'THE UNITED STATES,

The indictment faired to advise petitioner of what
she is called upon to defend. The indictment simpry
followed the language of the statute. The general rure
that indictments or compl-aints, which substantiarly follow
the language of the state statute are sufficient, is not
applicable where gtatute creating the offense does not
describe with particularity the constituent elements of
the offense. (Hochman v. State, 9L So.2d 4gS). Ihe
legislature failed in the statute at issue to set forth
the elements of the crime and'therefore the statute
violates due process of raw guaranteed by Article 1,
section 6 of the constitution of Alabama, 1901, and the
Fourteenth Amendement to the constitution of the united
states. rn order to compry with the constitutional
requirement, an indictment should be sufficientry specific
in its averments to identify the accusations or charge,
to enable the accused to prepare for his defense, to insure
that the judgrnent wilr inure to his subsequent protection

19



and foreclose the possibility of his being placed in
jeopardy for the same offense, ancl to enable the court
after conviction to pronounce judgment on the record.
(Bridge v. State, 3Ol- So.2d 286 (1974) ). See also

Russell v. State, 369 U.S. 749 (1962) and Andrews v.
Slate, 344 So.2d 533 (A1a. Crirninal Appeal, cert. denied,

344 So.2d 538 (AIa. 1977)), wherein it is held that the
indictment must contain the elements of the offense intended,

to be charged and sufficiently apprise the defendant of what

he must be prepared to meet.

Reading the indictment as a whore, the accused shourd

receive sufficient information to enabre him to reasonably

understand not only the nature of that offense but the
particular act or acts touching whj-ch he must be prepared

with his proof . (Donah'ay :r._ City Of Montggmery, 43 Ala.
App. 20, I7B So.2d 832 (cert, denied, 278 AIa. 7OB, l7B

So.2d 837 (1965) ). "The indictment rnust state the facts
constituting the offense in ordinary and concise language

in such a manner as to enable a person of common under-

standing rneither a Solomon or a Simplbtonr to know vrhat

is intended." (l'Ianson v. State, 349 So.2d. 67, AIa.

Criminal Appeals cert. denied, 349 So.2d 86 (AIa. 1977)i

Chambers v. State, 364 So.2d 416 (1978)).

In Bal1arcl v. State , 341 So.2d 957, the Court struck

statute which

2A

down as void for vagueness a child abuse



used the standards unjustifiab.le pain or ordinary punish-

ment. rt is respectfully submitted that the standard

ilregar and u.nlawful are more vague and uncertain than

the standards in Ballard.

Likewise in Gqg4orLy. State_, 52 A1a. 308, the Court

said3 ". a mere general accusation of i1legal voting
is not sufficient to support a conviction.,,

c.

TTIE EVIDENCE IN THIS CASE WAS TNSUFF'ICIENT TO SUPPORT

THE CONVICTION OF THE PETITIONER OF THE OFE'ENSE CHARGED.

The prosecution!s evidence showed that the petitioner
:

picked up approximately twenty-five to thirty absentee

voter applications and that petitioner accompanied several

other ladies to Tuscaloosa to have the applications
notarized by a notary public without the specific appli-

'cants being present. The prosecutionts evidence also

showed that most of the ballots cast votes for the same

persons. It is respectfully'submittedr. however, that
not even an inference of illegality or fraud can be drawn

from those facts.

First, the record reflects, and it is well known,

that the Alabama Democratic Conference, a state-wide

- . political caucus, primarily of blacks, end,orsed a slate

2L



of candidates and actively supported those candidates in
each of the elections in 1978. counser would suggest to
the court that an examination of any box in any election
district of this state for the LITB elections, where blacks
vote in any substantiaL numbers, would reveal a substantial
number of baIlots, alL of which were east for the same

candidate.

Second, it is not unlawful for one person to pick
up more than one absentee ballot application. It is
not unlawfur for one person to assist more than one person

in filling out an absentee apprication. rt is not unlaw-

fu1 for the person assisting an absentee applicant to
put his own return address on the absentee application.
The faiture of the person to sign the ballot in the

Presence of a notary public does not render that balrot
itself illegal or fraudulent. Nor, is it, i1l_ega1 or
unlawful for one person to return to the office of the

Circuit Clerk more than one absentee ba1lot.

Moreover, the ballots complained of and introduced

into evidence as the Statets Exhibits l- through 39 were

not shown to have been returned to the Clerkts Office

by petitioner. Thus, it cannot be said that petitioner

cast any of the complained of ballots. "In every criminal
case., the s'b.ate is required to show beyond a reasonable

doubt and to the exclusion of every other reasonable

22



hypothesis every fact or circumstance which is necessary

to estabLish the guilt of the defendant as charged in the
indictment." Brandon v. state, 1g3 so.2d 240, 227 A].a.

App. 32L. This, the state faired to so, and it is respect-
fully submitted that the affirmance of the conviction,
judgment and sentence should be reversed.

code o-f Alabama, L975, section r7-r0-4 provides that
any applicant for an absentee balrot may have the assis-
tance in filling out the application he desires. Addition-
aIIy, it has been estabrished through advisory opinions
from the Attorney General, and Federar voting Guidelines
that infirm and functionarry ilriterate persons are

entitled to the assistance of their choice in casting
their ballots-

In Gordo+ v. State., 'supra, the court said: "The
whole inquiry shourd be directed to the voters knowredge

of facts and to his diligence in acquiring the requisite
knowledge. rf ignorant of the disqualified fact and

without a want of diligence under an honest belief of
his right to vote he should be excused though he had not
the right." The Court also said: ,'AI1 crime exists
primarily in the mind. A wrongfur intent must concur

to constitute what the law deems a crime.t'

Additionally, the state in its prosecution apparentry

attempted to impute to the petitioner the acts and conduct

23



of another. This the state cannot do without a prior
showing of a conspiracy between such persons beyond a

reasonable doubt and to a morar certainty. rn u.s. v.
Mad.dox, 492 r.2d 104, cert. denied 95 s.ct. 92, 419 u.s.
851, 42 L.Ed.2d 82, the court held that an alleged
conspirator cannot be bound by the acts and declarations
of participants in the conspiracy until after it has been

estabrished that a conspiracy existed and that he was one

of its members. see also cox v. state, 1gg so. g06 | 240

Ala. 368; Morris v. State, 4L So. 274, I4G Ala. 66.

D.

THE FACT THAT THE PROSECUTOR USED HIS PEREI4PTORY

CHALLENGES TO STRIKE EVERY QUALIT'IED MEIUBER OF TIIE

PETTTIONERIS RACE FROM THE JURY PANEL CONSTITUTED A

DENIAL OT DUE PROCESS AND EQUAL PROTECTION ABSENT

EXPLANATION ON NON-RACIAL GROUNDS.

The venire of jurors drawn for jury service on

october 20, L979 contained the names of sixty-three (6sy

persons, forty-nine (491 of vrhom hrere present and quarified
to serve. Of the forty-nine (49) persons persent and

qualified to serve, nine (9) brere black.

The State was awarded thirteen (I3) strikes and the
petitioner had twenty-four (24) strikes. The State used

its strikes to systematically exclude ar1 bracks from jury
service by reason of their race or color.

24



stdcsequent to the verdict and judgrment in the case,
petitioner filed a Motion for New Trial in which she
alleged, inter al-iarthe foJ-lowing:

Defendant.was tried and convicted by apetty jury in the serection of which theie wassystematic exclusion of blacks sorely by i"i"""of their race or co1or. Defendant was therebydenied due process of law 
""a ifr" equal pro_tection gf_Ih:.Iaw guaranteed Uy art-icfe^i,Section 6 of the Constitution of at.b.*.,1901, and the Fourteenth amenaement to theConstitution of the United States.

There was attached to the motion the affidavit of the
undersigned attorney who served as triar attorney. The
Motion for New TriaL was denied,.

The arlegation in the Motion for New Trial of excru_
sion of prospective jurors by reason of race was not
contraverted on the record by the prosecutor. petitioner
respectfully submits that where the prosecutor used his
peremptory challenges to strike every qualified, member

of the petitionerrs race from the jury pane1, absent
expranation, upon conviction, the petitioner is denied
due process and equal protection of the laws.

Petitioner is fulry cognizant that in 1965 the supreme
court of the united states in swain v. Al.abama, 3Bo u.s.
202, 85 s.ct. 824, 13 L.Ed.2d 75g, held that the fact that
a prosecutor uses his peremptory challenges to strike
every qualified member of the defendantrs race from the
jury paner does not constitute a denial of due process

25



and equal protection, where there is no sufficient showing

of a historical pattern of exclusion. swaiL, however,

did not reverse and was not intended to reverse a long

line of cases which estabrished the principal that a

criminat defendant is entitled to trial before a jury in
which there has been neither systematic incrusion or
excrusion of persons by reason of race or color. we wourd

submit, however, that the rationale underlying swain has

perhaps become dated, and is inappropriately applied
to circumstances which evidence a new sophisticated and

ingenious approach to discrimination.
Swaip poses an insurmountable burden in those cases

where raee or color is a significant factor and. the

prosecutor selectively discriminates by reason of race

in the serection of the jury, while in other cases where

race is not a significant factor, donning the garb of
impartiality and permitting blacks to serve. In other
words, prosecutors are as adept, if not more so, at
reading and interpreting Swain than are attorneys for
defendants.

A very weII reasoned concurring opinion in the case

of State of Louisiana v. Rqlq11d Eames, 365 So.2d L361,

addresses itself to this issue. There the Court said:

". a presumption should exist during
the selection of a jury that individual per-
emptory challenges by the prosecution are
being properly usecl. Once it becomes evident,

26



however, that the prosecution has used a dis-
proportionate number of challenges against
memlcers of one race, or has eliminated a race,
considering the proportionate number of that
race included within the venire after excuses,
exceptions and removals for cause, in my
opinion, a prima facie case of discrimination
because of race has been established, and the
burden of proof should shift to the prosecutor
to show that his challenges were not exercised
on the basis of race. The state may sustain
its burden by offering evidence that its
reasons for individual challenges were not
because of race. Although the reasons need
not be sufficient to ground a challenge for
cause, they should appear to have been applied
consistently to similarly situated jurors of
other groups, and. they should be reasonably
relevant to the particular trial or to non-
racial characteristics."

In the case at bar, the prosecutor used substantially

all of his strikes to eliminate all of the blacks from the

venire. Race or color was a significant factor in this

case because it involved the right of blacks to vote --
an elusive right not yet fuI1y realized. Absent explana-

tion, a presumption of racial discrimination arises and

the conviction in this case ought to be set aside.

E.

WHERE MEANS BY WHICH THE OFF.ENST WAS COMIVIITTI1D IS

CHARGED IN THE ALTERNATIVE, EACH ALTERNATIVE CHARGE HAS

TO DESCRTBE THE MEANS WITH THE SAI\']IE DEFINITENESS OR

PNRTICULARITY AS WOULD HAVE BEEN REQUIRED HAD THE CHARGE

BEEN MADE IN A SEPARATE COUNT. EAILURE TO DO SO RENDERS

THE E}ITIRE INDICT}IENT VOTD.

27



,

t

The indictment in this case charges disjunctively
that the defendant: (1) did vote more than oncer or (2)

deposited more than one balrot for the same office as her

own, or (3) did vote illegally or fraudulently.
The alternative did vote illegarly or fraudulently

fails to state an offense as required by title 15, section
8-25, Code of AlabamaI L975, (Ballard.v. Stale, supga.).

see Young v. state , 348 so.2d s44, where the court herd

that each separate alternative charge must contain a substan-

tive offense under the law, charged with that degree of
certainty which Title 15, SecLion 232 requires.

- Likewise in Boulden v. State , i-7g So.2d 20 (1965),

the court said: ". under the statute it is premissible

for counts to charge arternative means by which the offense

was committed, but when the means by which the offense was

committed are charged in the arternative, each alternative
charge has to describe the means with sufficient definite-
ness and particularity as would have been required had the

charge been made separately in a separate count.

fn Donahay v. City of Montgomery, Supra, the court

held that if in a single count the offense is charged

disjunctively, and one of the alternatives fails to state

an offense, the defect renders the whole bad. See also

QgLose v. 9ity oflontgomerl , L27 So"2d 849 (1961).

!

2B



i

rt is respectfuLly submitted that the arternative
charge "or did illegal.J-y or fraudulently voterr, fails to
state an offense and thus the entire indictment is bad.

The trial court therefore erred in overrul.ing appeJ.lant r s

special prea, which was treated by the court as a demurrer.

a
a

a

:
t

a

lrl'

c
I

i

29



a

!

rt

I

.l

CONCLUSION

Wherefore, for the above and foregoing reasons it is
respectfully submitted that this court should issue its
Writ of Certiorari to the Court of Criminal Appeals of
Arabama reversing and setting aside the Judgment of Affir-
mance of said Court.

Respectfully submitted,

GRAY, SEAY & I,ANGFORD

CERTIFICATE OF SERVTCE

I hereby certify that f have served a copy of the

foregoing Brief in Support. of Petition for Writ of Certiorari
upon the Honorabl-e Charles A. Graddick, Attorney General

for the State of A1abama, ..250 Administrative Building,
Montgom€ry, Alabama 36130, and the Honorable P. M.

Johnston, District Attorney for the 24tln Judicial CircuiL,
L20 3rd Avenue Northeast, Aliceville, Alabama 35442t by

placing a copy of same in the United States l{ail, postage

prepaidr oD this jIU^y of lrtay, 1981.

a

a,
a
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o

30

omon S. 6eay, Jr.
352 Dexter Avenue
Montgomeryr Alabama 36104
(20s) 269-2s63