Appellate Brief
Working File
January 1, 1981 - January 1, 1981

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Case Files, Bozeman & Wilder Working Files. Appellate Brief, 1981. 2434bd7d-ed92-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/359dc666-d65e-48f2-a61a-a4df43f59800/appellate-brief. Accessed April 29, 2025.
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i I l -,1 1}!!I_99--g_9_ry!i,!tf ..: TARI,I] OIr AUTTiOitIT.TIIS l_{e_9 iii iii iv 1 5 no ]-'t Caser; Stalbu'Les an,l Other l\uthoriLies STATtrT.IENT OIT TIIE CASE STATI'IVIE}.IT STATEI\TENT ARGUItIh\T OF TTIB TSSIJES OF FACTS A. Section 7.7-23-1, Co<le of Alabarn.:t, 1975,ffi[EA_fndl crmen L-a" rrii-pursuant to vrhich the_: :fndlctmeinE-1TT'trTs case waE te,Aia uncertrill tIaL fiia staiEGte-o-rTen.is tfie trsect-Lon. 6, anrl thc I'ourtecnth AmeriamEnt r1!ES*co"{q|l:uf1^on of t,Ec iiiliEerr starr.is" l7 IJ. The irrcli-cL.r,rent i.n thi.s case is 9_9_tagElLe_ trrGe. ri- ;tl-Ti-rin cl - i n ar:TT n iE e-- t}ia t tlxr co n w'r cu n c e. r t ;il-Ti-;in cl -1: }E CONV.LC_ F;t:rtesl-- .- D. 1',he i:r-on unciet: t_irrs indir:tnren[: dcnrivcr; tire'i-]or1 unclet: 't-i)l,s tndrc:tnren.t: defirivcr.; the Pe!i!+g'Ilt- Letqe-L{e-qglF__-e{E_llugIellssg L--h-^rl-a--;-ry:[!€!] " _L;.se. riLorl -?;-;r-tTc coft,rffiT1*, o f-AIabama,]SbI, "a;nA-t tle r-c,ur-tr.e-n.5-1-, n1[or,?r-9.f [IgEnla1.lI 6l-_;_-agff:i.1r-9_ F-q rr-r"-t e e-n r h Ame r, d -tnent to the ConstiiirEion--of -i-lro il;Ti-..-rrne riE - Eo aEC-e o n s-t i-i: uEIo n --o f- t iit u;T r e a C. The eviclcnce in this carie \ras insuffi.ci.ent to Guebcii tTc- convfaEon*c;E-t-ric pc [i-tioner 9-1g3e,j rEi,lEl q6a_rq-etd- . - - ::;:: .-. _;. - 19 2L 24 Ii. flgr.!-Lgu]a5|qJ- as viould have been 1_"grrl@_[11|tr@e irr a separ;rt-c ci,u.iL. -Iir.{,f_r[E to ao s,o--' rcrxlers IEE entfi:e -i-rraiCtment riofZ-- CtrRTII]ICAiIII OF SERV.ICE 27 COIJCI,USTON 30 30 l- l_ TABLB OIT AUTTIORII'II]S Cases Gorclon v. State, 52 AIa. 308. Andrevrs v. State , 344 So.2c1 533 (AIa.--lrIminaI apF'eal, cerL,. cleniecl, 344 So.2d 538 (A1a. L977)). B_allard v. State, 34-L So. 2d 957 . Bolin v. State , 266 Ala. 256, 96 So.E Bou1den v. State, L79 So,2d 20 (1965). B{andon v. State, 193 So.2d 240, 277 @1. Bridge v. State, 301 So,2ct 286 (L974). Chanrbers v. State, 364 So.2cI 416 (I978) Cox v. State, 199 So. 806, 240 AIa. 368. Donahay v. City_of Mcnt,goinery, 43 Ala. npp. 20, 178 So.2d 832 (cert. clenied, 278 AIa. , 70Bt I7B So.2d 837 (1e6s) ) . Dubose y. 9ity OL lvlcn'tgom€ry, Zct 849 (1961) . 6, 2A, !ege 5, 19 2L, 28 L27 So. 5, 7, 18 2B 6, 24 24, 28 6, 2L 2L, 23 5, l-9 5, 1B 20 24 5, 2a 5, L7 5, 6, 6, 23 5, 20 6, 2A 5, 6, 6, Ilochman v. State-, 91 So.2d 495. Lanvetta v. State of Ner.r Jersey, 306_ U.S I'lanson v. State, 349 So.2d 67, A1a.'@ea-l-s;, cert. clenied, 349 So.2d 86 (Ala. 1977). I.lo::::j.s v- St-ate , 4L So- 274, 146 A.la. 65. RusselI v. Sterte , 369 U-S. 749 (L962) . Stal..brq_9il_ v. Sta'ce, 178 Ala. 400. ].lr State of Lonisiana V. Rambnd Eames, .365 So.2d 1361. Sraain v. Statg, 380 U.s. ZO2, g5 S.Ct. @d,2d lss. U-.X, v. l,Iaddox, 4g2 E.2d 104, cert. @ s.cr. 92, 4r9 u.s. 851, 42 L.Ed.2d 82. , 348 so.2d 544. Statutes and Other Authorities Code of Alabama, 1975, Section 15-8-25 17-10-4 L7-23-1. 6, 27 6t 27 24 2B L7 6r 6, 28 Code of Alaba1e, 1975, Section Code of Al-abaqa, L975, Section 23 l l ) IV sI'AlrEiuFNT OF Trrtr cAsrl The Grand Jury of pickens county, in the state of Arabama, in its November sessj-on, l-g7}, charged tha.t the Petitioner: COUNT ONE clid vote more than oncer or did deposit morethan one ballot for the same office as her vote t ox clid vote illegally or fraudulenLly, irt the Democra.tic erimiry hun-off Electionof Septenrber 26, L97B , COUNT T\..IO did vote more than once as an absentee voter, or dicl deposit more than one absentee ballotfor the same office or offices as her vote,or did cast illegal or frauclutent absenteebalIots, in the Dernocratic primary Run-offElection of September 26, 1978, COUNT THREE clid cast illegaI or frauclulent absentee bal-loLs in the Dernocratic primary Run-off Election of September 26, 1978, in that she dicl deposit with the pickens County Circuit C1erk, absentee ba1lot.s r+hich irere fraudulent and wllich she kneiv to be fraudu- l.ent, against ttre peace and dignity of the State of Alabama. ('Iranscript of the Recor:d, page 2)-1, 2L2) Prior to tlie trial, pe{:itj.oner ente::ed a spccj-a} plea rvhj-ch aIle-qecl, in t-er ;rlia : 1. That the indictment fails to st.ate an offense cognizable by this Court. 'Ih;rt the irrclictment fai-ls to state an offense under the -laivs; of tl-re State of Alabarrur. 3- That the indictment is vague, uncertain, ancl 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 incrictment deprives defendant of due process of lavr guaranteed by Article 1, Section 6 of the Constitution of Alabama, I901, 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, ald uncertain that defendant cannot reasonably anticipate what conduct is condemned thereby- said statute therefore offends the Constitution of Alabama, 1901, Article 1, Sec_ tion 6, and the Fourteenth Amenclment to the Constitution of the'United States. The ind-ictment in' this case is so broad in its terms as to srveep r,rithin its prohibition conducb vrhich the State of Alabama cannot constitut,ionally prohibit. Defendant is thereby deprived of due process of law in viol;rtion of the Constitution of Alabama, 1901, Article 1, Section 6, and the Fourteenth 4. 5. Amenrlment to the constitution of trre uni.te<l . .States - 6- The stat-ute, pur:suant to rvhich the i.nclicLrnent in this case tv.rs returnecl, is so broad in its terms as to srveep rvithin its prohibition conduct r,hich the state cannot consti-tutionarry prohibit- - said statute therefore offends the consLitution of Alabama, Article L, Section 6, and the Fourteenth Amenclement to the constitution of the United States. Il fi 7. i-rrr. indic'L.m.ent in this case has the sore purpose L- IIU ancl effect of frustrating the crefend.ant and ot-her brack resiclents of pickens county, Alabama in their efforts to e>rercise the rigrrL to vote guaranteecl to thern by .bire constitut.i<;n ancl raivs of the unitecl states] The inclictment thus clenies the defendant due process of lar.l and the equal protection of the rarv guaranteed by the constitu- tion of the unitecl Stat-es. (T.R. ZLB*220). on, to-rvit, Novenrber L t rg7g, the trial juclge <icniecl €rnd o\zerruled petit.ioner'.s spr:cial plea. (.f -R. 11) . The b-rial corn,il(':ncet'[ in th'i.s c.ise on Novc:r,r]-rer l, Ig7g anci orr November 2, 1979, the jury found the petitioner guilty as cha::c;cd .ln the j.ndic'tment ancl fi>:ed her punishinent at four ( 4 ) years in the pr-:n.i- L:ent j.an, . (T. R . 223) . Ofl, to-rvit, Itrovenber 28, lg7g, pctiL_io,er filed a t'Iotion for Ner,,i Trial- (f .n. 224-232). Saicl nrotion rvars denied by the circuit Cour't on February 27, r-980. On, to-rvit, I,larch L2, 1980, petitioner gtave Notice of Appear to the court of cri-minal Appeals from the verdict of the jury, the judgment ancl sentence of the court acljudg- ing the petitioner guilty and fixing her punisrrme,t, and. from the o::der of the court datecl February 2.1 , 1gB0 denying petitionerrs Motion for New Trial. (T,If . 236). Extensions of time were granted by the circuit court and by the court of criminal Appeals for the court reporter to complete and fire the reporterrs transcript rvi.t.h the Clerk of the Circuit Cou.rt of p.ickens Countl,. 'rhe court of criminal Appeals affi.rnnecl the judgment of the circuit court of pickens county on Flarch 3r, l98r. Application for rehear,ing was filed on Aprir L4, 19g1 and overrulecl on April 21, 1981. This brief is submit.L.ed in Petition for l,/rit of Certiorari Appeals. suppcrt of Pe-titionerts to the Courl of Crimir.ral STATEI{ENT OF TIIE ISSUES The issues presented for rev.ie\,yr are as follows: I. WITETTIER SECTION L7-23-1, CODE Or ALABAT,IA , L975, PURSUANT TO IVHIC}I THE INDICTivIENT IN THIS CASE WAS RETURNED, TS SO VAGUE, INDEFINITE, AND UIICERTAIN THAT SAID STATUTE OFFENDS THE coNsTrTUTrON OF ALABAMA, 1901, ARTICLE 1, SECTION 6 | AND THE FOURTEENTH AI,IENDI4ENT TO THE CONSTITUTION OF THE UI.IITED STATBS? Bolin v. State, 266 AIa. 256, 96 So.2d. 582. Lanvetta v. State o'f New'Jersey, 306 U,S. 45L,. Standard Oil yr_ Eete., 178 Ala. 400, 59 So. 2d 667. 2. WHETHER THE TNDICTI\LENT IN THTS CASE IS SO VAGUE, UNCERTAIN, AI.ID TNDEFTNITE THAT THE CONVTCTTON UI,IDER T}IIS INDTCTI,IENT DEPRIVED THE PETITTONER OF DUE PROCESS OF LAW GUARANTEED BY ARTICLE 1, sECrroN 6 oF THE CONSTTTUTTON OF ALABAIIA, 1901, A}ID THE FOURTEENTH AMENDT,IENT TO THE CONSTITUTION OF THE UNITED STATBS? flochman v, Stater'9I So.2d 495. Bridge v. State , 20L So.2d 286 (\974) . Russell v. State, 369 u-s. 749 (1962). 344 So.2d 533 (A1a. Criminal denied,344 So.2d 518 (AIa- Andrews v. State, @. 1e77)). Dgnahay_v__,_lrty pt Yontgomery, 43 AIa. App. 20, 178 So.2d 832 (cert. den.ied, 278 A)_a. 7O8, 178 So.2c1 837 (1965) ) . l"lanson v. State, 349 So.2d 67, AIa. Criminal ap[eafslErt. clenied, 349 So.2d 86 (AIa. te77) ) . 5 2 Clranlbers_v_. glltgt 364 So.2d 4L6 (1978) Rallard v- State, 341. So.2cl 957, Go.rclon v. St,ate , 52 AIa. 308. I.]}IETiIER TI{E I{EIGHT OiT 'J'iiE EVIDENCE IN THIS CASE TS SUFFICIENI' TO SUPPORT TIJC CO}TICTIO}I OF TTIE PETTTIONER OP TTItr CRIIIIE CHARGtrD? Brantlon v. State, 193 So. 2d 24A, 27'l ALa,App- 321. Cox v. State, 199 So. 806, 240 AIa. 368, I,lorris v- State, 4L So. 274, 146 AIa. 66. U.S. v. liadclox, 492 F "2d 104, cert. clenied Ez, 419 u.s. B5i, 42 L.Bct.2d 82. I{TIETTIER THE PETTTIONBI{ [.TAS DENTtrD DUE PII.OCESS OT LAI\I AND TFIE EQUAL plrOTECl'rON OI' TI.IE LAM IN TIIE FIICE OI' A SIIOIVING THAT TiiE PROSECUTOR UTfLTZED SUBSTANTTALLY ALI, OJI HIS PEREI,IPTORY CHALLE}iGES TO STP.IKE BVI:RY I\IEI.IBER OF TIItr PITTIT]Oi,]ERIS IiACE TRO}I THB JURY PA}IEL ABStrNiI] AN EXPI,A}]ATIO}I o}I NON-RACIAL GROUNDS? State of Louisiana v- Be11gng_qelsl , 36s so. 2d l-361. Srvaj-n v. Alabama, 380 U. S.-.__-f: L:EAZa75g. IVHETHER TI{E EllTfltE fhDICTllilNT II'i THIS CASE IS VOID !,IIIERE TIIE OllirIlNSX IS CIIARGED IN TFIE ALTER- NATIVI1 /iND Oiiill Otr '-[IIE ALTERNA'I'IVES DOES I{OT CIIAR(.;E AN OITi?Jii']SE i{,I.,I}I TI]E CERTA.-T}{TY AND DEirrNfTEi:l.tlSS tUQUfRED BY SECTIOT\ 'l 5-B-25, CODI O1i AlAtslii,Ir\, 1.975'! Ig"ryl_y=_9!+!9, 348 so.2d 544. n.qiil9g1_--lL_-.'Ja'!g, t79 so- 2d 20 (1965) - 202, 85 S.Cr- 824, 5- upit{y-,y_--y_,-__cL:,1_,rI--i:g1-l,S_ilj,l9l.,y_, 4 3 2\1.r . Ay;1l . 20, L'lP, So.2ct ti32 (c;r'.:i:t-.. dcnierl, 2.78 ./r.ar. 70ti, .'1.78 Slo.2.J 837 (1965)). Dtrbose v. Ci ty of I'loni:cro:ner!:\/ , 127 So.2cl B4g ---(iT6rl . STATEMENT OT TACTS Janice Til1ey, called as a rvitness by the State, testified as follovrs: that she is employecl by the office of the Circuit Clerk of Pickens County, Alabama (T.n. L2); that a person desiring to vote absentee fil1s out an application, picks up their supplies and either mails it in or brings it in (T.R. 13); that the application has to be signed by the person requesting the absentee baltot (r.n. 14); that after the application is returned to the Clerkrs office, the Clerk checks to see if the person is a registered voter (T.R- 15); if sor a ballot is either mailed to the address on the application or the applicant picks it up; and When the ballot is returned to the Clerkrs office it is sealed (f.n. 16), and placed in a ballot box in the C1erk's office; that during the week prior to the September 26,.L978 Democratic Primary Run-off. Election, petitioner picked up approximately trventy-five to thirty applications (f .4, 18). On cross-examination, the witness Tilley testified that it is not necessary for the applicant to pick up the applicer.tion (T.R. 25) i that a person can pick up an application for another person (f.n- 27); that she does not remember getting any ballots from petitioner (f.n. 29) Charles Ta'te, calIed as a witness by the State, B tesbif-ied as follovrs: that he is employed in the office of the Dist-ricL. Attor:ney , 24th ih,rrlicial circuiL (T-R. 34); that hc assisted i.n th.e opsning and e>rarnin:rL.ion of the cont.ents of the absentee bal1ot box (t.n. 35); that an ex.rminat-ion of the balloL.s in ,cire bartot box revealed that thirty-nine of the bal]ots harcl been notar:ized by PauI C. Rollins (t.H. 37) i that the adclress of l,ir- Rollir.rs is -i-n Tuscaloosa, Alabaina; that. he examined L.he recorcls in the Clerk's office anrf made copies of .bhe apprications r.rhich v/ere filed. reclues.ting those thirty- nine baltots (T. R. 3B) . The applications were admittecl into erridence overl the objection of the peL..itioner as statots ltxhibit 3 throu<Ih 35A. The ballots reelre 'introclucecl into evirlenee over the petit:Loner's objections as staters Exjr-ibit 4 through 42. !g-t_9- rtg!Jin_r-, called as a witness by thc State:, tes'Lified as fol-lor;,rs: that he is a morbician rvhos<: 'pl.ace of business is Tuscaloosa, Alaibarna; that. he is also commiss.i-onerl a.s a notary public (T.R. 5rt) i tha.t he has kno'''rn 'L.lre pctitioner, Maqgie Bozein:li, for: approxiia.r.L.:ly ni-nr: or ten years;; that- he nota::izeil t.i:e balio'ts of Bessj.e Bil-LuL;-rl; , Oi>al T'hoin.:s,- f,j.n11:r Ba rnes, lLoos;ci;i,:l L l.jinclon, Jul-i-zr Cousett, arrd t-I-re balloL-s of the o'Lhcr pelrsons rvhose nameii appeared on tlie thirty-niite ball.ots introchicecl ilLo evidence by the st.r'L.e; that- tl'rey r.rer€) notar-izec1 in his; office in Tuscarloosa; that Julia I.Iil-cler, Ilaggie Bozeman, and trvo or three other young laclies were there; that he did not personally know any of the people whose bal-lot he notarized. On cross:examinafionr. the witness Rollins testified that he does not know who wrote the names on the ballots (r. R. 73) . I,I+udine 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 rvas brought to her by Clenrnice Grice and his wife (T.R. 90); that she did not sign her name to ,the ballot and dicl not authorize any- body else to sign her name to the ballot (1'.R. 91); that her dauqhter, Lula, sent the Grice's by to bring that ballot (T. R. 92) . She also testified that'she does not knor,r Magqie Bozeman an<l has never seen her before. (f .n. 93). Annie B.iIIups., called .: . witness by the State, testified as follorys: that she lives at 102 Tilley Flaml.et-t, that she never lived aL 601 l.0th Avenue North I^Iest (T.R- 95); that she was registered to vote in the September 26th Democratic Primary Run-off; that she was s.ick and did not get down at the National Guard and that l,Irs. Julia made the,yrr for her because she could. not writ.e 10 (T.Ir. 95); Lhat Juria i'iilder made the ,,xrs,r on the barl-rot (r. R, eB) . 9lsross-examila'uic,n, the r.ritness Birrups testifiecl that sl:e had kncrvn Julia I'Iilcler a long time; that Juria Irlifder vras a goocl friencl; thaL 601 10th Avenue North- rvest is .luLia hrirderrs address; that she had no objection to I'Irs- wilcter helping her rvith the application (T.R. r00); tirat"she rvarntecl to vote, and coulcJ not go and. vote; bhat Mrs. vlilder put the t'xrt on there with her consent; that Mrs. I{ilcler brought a sample ballot showing ryho rve were voting for; and she told her r^rho we was voting for and asked her if that was al1 right (T.n. 10I); that so far as she is concernecl, the balloL is her vole; that rvhen IUrs. w.ilder brought the balrot to her petitioner Ivtaggie Bozen.ln was not th.ere; and when Llrs. I^Iirder put all the "xts" on the ballot l{rs. Bozeman was not there (T.R. t02); that l'lrs. Bozeman did not assist her in any rvay in votincy in that particular election (t.n. 103). qn__--cfggs cxamlnatigt, the rritness B.i that she rvas sa'tisfied rvi.th r,;hat l,lrs. I.I,ilcler her to vote ab.senLee. (t. ti. I05) . Ilups tesLified did in helping I'lattie Gib:;on, cal1ed as a rvi.tness by t-he St.lte , test-iEied as follows: that- she lives at 206 Tirrel, H;rrnlett, Al-iccville; that shc has nevcr lj-vecl at 532 10ttr Avenue Iiorthi'ie':st; that she is a registerecl vot.er:; that she clid 1t not write an application for an absentee berllot for the september 26th p::imary Run-off }rlection, but she markecl it (f .R, 108); that she cannot r€ard or write; that IvIs. Julia wirder brought the application to her (T-R. r09); that she asked Juria wirder to bring it to her ancl told her that she wanted to vote. I,Ihen shown the barrot marked as staters Exhibit 3-39, the witness Gibson testified that she had seen it; that she had made her mark on that paper; that sister Julia wild.er put her name on there but she macle a mark there (f .n. II0). on cross-exgmination, the witness testified. that Minnie Hill came out Lo her house before trre primary Run-off Erection.and brought the balrot, and that r4rs. Juria lrlilder had the apprications (T.R. 11r); that when Mrs- Irlilcler first came out she had a sample baIlot and tord the witness who $/e was voting for ancl asked if she would vote along with the iest of us and the witness agreecl; that she had no objection and that Mrs. witder and Miss Hill had done what she wanted done (r.n. 112); that she knows Maggie Bozeman; that lulag,gie Bozeman was not there when Mrs. I{ilder brought the application, nor r'ras l'laclgie Rozeman there vrhen I,Irs. Hilr came back ancl brought the barrot ancl that as far as she knows, Maggie Bozeman had nothing to do with the application or the baIlot. (r. n- 113) . L2 N.rt Dancex, carled as a vritness by the state. testified as -follows: that he lives at rilrey ltamreLt, that he has never lived ab 601 1Oth Avenue Norbhvrest in AliceviLre ('r'R- 114); th.rt he is a registerecl vot.er; that he rernembers rvhen Bill Baxley and Fob Jaroes v/ere having a run-off to see who was going to get the Democratic nomination and that rvas in the second war (r.n" tl5); that he does not know r.rhether he had ever seen the application before (T.R. 116); bhat the name Nat Dancey that appears on the barlot was not signed by him and that he aintt told. Llaggie nothing on cross-examinaLion, the witness Dancey testified, that he remembered Julia wilder bringing the apprication to his house (r.n. L20) i that Jul-ia l.trirder was at his home when she talkecl rvith him aborit voting (T.n. 122); that he had never been in a courthouse before in his life (T.R. 123) - The state and the defense s'bipulated that Nat Dancey r'ias previously -in a trial of the same charge aqainst Julia I^IiIder. (r. n- 125) . Jagie RicheL, called as a r.zitness by the State, testified as follows: tha.L. she lives at l1B Til1ey Hamlett and has never livecl at 601 10th Avenue No::th; that she is; able to ::ead. ancl r,r.riLe (T.li. 1.25) ; that- she votecl an absentee barlot in the run-off erection; that Julia I^Ji1de:: brough't a paper around; that a lac1y came with her but it rvasntt l4aggic Bozem;rn (T.Il . L26). 13 On cr:9s9.:glgmrna!g!, t-.he r,.ritness Richey testifiecl that she has known Juria !,tilcler about trvo years; Julia Wilder has helped her to vote; that she could not leave the house and Juria lrlild.er wourd show her how she courd vote rvithout goinq to the poIl, and, by doing that she put her I'x" on a piece of paper (T.R. I30); that she had no objection to the way Julia marked her ballot; that she told Julia it would'be all right; that she has not had. any conversation with t'taggie Bozeman about.- any vot.ing (T.R. 131); tha'b Maggie Bozeman had not been to her house or talked to her about any absentee balIot. Fronnie B. Rice, ca1led as a witness by the State, testified as follorvs: that she lives at 127 Tilley Ilamlett; 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 fiIIed out the application; that 'she signecl the ballot that came to her house (T.R. 136), and'that she remembers marking some rrxlsrr on here On cross-examination, the witness.Rice testifiecl that the application hacl her address on it (T.n. 149); and. that she remembers the ballot conring to her house in the nrail; that she has knoryn tlaggie Bozeman for about seven years; and Maggie Bozeman has.never: livecl at 127 Til1ey Jamlett; that l.lagqie Bozeman, os far as she knows, clid not have L4 anythirlg to do lvi'L.h the applicat-ion or the barlot (T.R. lso). on r:e-cross exam.ina.tion, thc vzit-ness Rice testifiecl that afi:er she received the barroL in.the rnaiI, she gave the ballot to Julia lVitcler. @, called as a rvitness by the State, testified as follorvs: that she vrent croi.;n to the camp, that Jap camp where the1, \fere voting at; that she took a ballot anil markecl her name on it ancl Sist-er Julia i{ilder rvrote her name for her (r.n. 155); that she votecl for another black man and two rvhite man; that she went to l,Iag-qie Bozemanrs house ancl aslced for atr absentee baI1ot aricl askcd l,Iagqie if she r^rould sign her nanre if she put her "x". on continua- tion of ilii:ect exarainaL.ion by I.1r. Russell, trre witness scminerville testifjed that l,Iaqg-i-e Bozeman ain,t never vrrote nothing dorvn for: her; thart- Julia l.Jilcler and her . claught.er: is the only l-vro ever v,,rote any balrot,s for her, and th.rl- therir .i-s the only two (T.R. 169). Egp]fft_€pgg, callcd a.s a rvitness.; by ttre State, tesLif-i-ccl irs fol.l-ows: thaL. she -'l-ives iit .1 plcrrje the1, cal-l Cochr:an in Pir:kr:ns Cou.;rt)' crnd has -L-Lrrelcl thcr:e for: nol, on abou't approxinrat:r:1y 'ti.renty-five yeerrs (t'.n. t7B); that sher knoiys the petitioner i,larggie Bozci,ran; thart petitionr:r l{aggie Bozem.rn di(l t-a:l-k to her: abouL voting one tirnc; th;rt l.laggie Ilozcman caine to lrer house and askccl I5 if she had voberl (T.R. tB2); tha't the rvitness torcl her "y€,.s, slre had been to cochran ancr votec]" and that the petitioner left and sarid she just wantecl to know had the witness voted (t.n. 182). Lucille llarris, cal1ed as a witness by the Stater, testified as follor.rs: that she lives in Tilrey }lamlett and is a registerecl voter and votes at the Nationar Guard Armory in Aricevirle (r.n. r87); that Juria lVild.er broughL an a]rsentee apprication to her; that she hacl not asked Mrs. wilder to bring the apptication (T.R. 1gB); that she never received a ballot; that she did not sigri the balroL that had. been markecl as state's Exhibit 3-9; that she did not te1I anyone they could vote for her in this erect-ion (r.n. 189). On cross;examination, the witness Ilarris testifiecl that she did not knorv lvtaggie Bozeman but had seen her down at the potling place; that she signed the applica- tion for an absentee ballot (f.R- 190) and that the application had her return address on it (r.n. I90). I6 AITGUIUE}]T A. sECTroN 17-23-1, coDE oF AT,ABAMA, 1975, PURSUAIIT To bIHICII TIIE INDTCTMENT IN THIS CASE T{AS RETURNED, IS SO VAGUE, INDEFINITE, AND UNCERTAIN THAT SAID STATUTE OFFENDS THE CoNSTTTU'rroN oF ALABAMA, 1901, ARTTCLE l, SECTTON 6, AND THE TOURTEENTH A}4ENDMENT TO T}IE COIVSTITUTTON OF TI{E UNITED STATES. Section t7-23-I provid,es: "Any person who votes more than once at any election held in this stater or deposits more than one ballot for the same officl ." his vote at such election, or knowingly attemptsto vote when he is not entitled. to do so, oris guilty of any kind of iIlegal or fraudulent voting, mus'tr oo conviction, be imprisoned in the penitentiary for not 1ess than tvro nor more than five years, at the discretion of the jury. " The statute fails to defi.ne what conduct constitutes an i1legaI or fraudulent vote, what conduct constitutes voting more than oncer or what conduct constitutes d.e1>ositing more than one votg as his own. [gnositinS more than one vote certainly does not imply that any person rvho del-ivers more than one absentee vote to the .--rt clerk's of fice is guitty of voting more than once.-}fo" evidence introduced at trial indicated that the petitioner attemptecl to deposit any balIot as her vote.lff,r-,=, the ) only portion of the statute relevant to the petitioner is l7 that por:L.ion cleari.ng rvith ftregor or fraru<l,len1. voting, and the statuh-e fails to crefine rvhat concruct' constitutcs iIlegal or frauclulent voting, r' enacting a qriminar statute, there is an obriga- tio' of the state 'to so frame it that those rvrro are to aclminis'ber it ancl those to r.rhom it is to be administered may know what sternclard of conduct is interrded to be required and legisration may run afoul of the due process crause because of ttre fairure to set up any guidance to those r'rho rvourcl be law abicling or to advise a d.efencrant of the na'turc of Lhe cause a.nd accusation he is carled to ansrver or to guide cou::ts in the ra' enforcement. (ngfff,_::__E!g!g_. 266 AIa - 256, 96 So.2ct 582) . ,,A person is not recluired to speculate as to the meaning of a statu't-e at the peril of his freedom.,, (Lanyetta v._ State of Ner.i Jersey, 306 U. S . 45:- . 59 S. Ct. 618) . ,,.Ihe inL.errt of the legisration rnust appear from the face of the statut6. " (St.a}garct OiI -yi__Elg!e., l_78 AIa. 400, 59 So.2cl 667). To have required the peLi.tioner to st_and trial for vi-olation of a sta'Lute which is vaglre, ,rl'cel:tain ancl indeiinite, clep::iverl the petiLiorrc:r: of clue p::ocesl; of -Ia-;'r cJtlaratrtee,f )ry Art:Lcl<,. 1, Sjection 6 of Lhe Con:stii:utio.rr of Alalbama and tlte Fortrteenth Amendment Lo the consbitution of t.he United .Stabc.s. 1B B. . THE INDICTITIENT TN THIS CASE TS SO VAGUE, UNCERTAIN AND INDEFTNITE TIIAT THE CONVTCTION UNDER THIS I}IDTCTMENT DEPRIVES TIIE PETITTONER OF DUE PROCESS OT I.AW GUARANTEED BY ARTTCLE I, SECTION 6 oF TilB COI{STITUTION oF ALABAMA, 1901, AI'ID THE FOURTEENTH AMENDIIENT TO THE CONSTITUTIoN OF T}IE UNITED STATES The indictment faired to advise petitioner of what she is calIed upon to defend. The in<lictmqnt simply followed the language of the statute. The general rule that indictments or complaints, which substantiarly forlow the language of the state statute are sufficient, is not appricable rvhere gtatute creating the offense does not describe with particurarity the constituent elements of the offense. (ttochman v. St?te, 91 So.2d 4g5). f rfr.L- legisrature failed in the statute at j-ssue to set forth the elements of the crime and'therefore the statute violates due process of raw guaranteed by Article r, section 6 of the constitution of Alabama, r90r, and the Fourteenth Amendement to the constitution of the uni-ted -1 States. Jrn order to comply with the constitutional requirement, an indictment shoulcl be sufficientry specific in its averments to iclentify 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 possibj-Iity of his being placecl -in jeopar:dy for thc saine offense, and to enable t.he courL after conviction to pronounce judgment on the recorcl. (R-ridgle v. State, 3O1 So.2d, 2BG (1974) ). See also Russell v. State, 369 U.S. 749 (1962) and Anclrews v. S_tate, 344 So.2C 533 (A1a, Crirninal Appeal, cert. deniecl, 344 So.2d 538 (AIa. 19 77)) , @,ur=i., it is held that the indictment must contain the elements of the offense intendecl to be charged and sufficien't1y apprise thd defendant of vrhat ahe must be prepared to meet=! Reading the indictment as a whole, the accused shoulcl receive sufficient information to enable him to reasonably understand not only the nattrre of that offense but the particular act or acts touching r.,'hich he mus't be prepared. with his proof . (Donahay ]r. Ci_ty of l.lohtgomEry, 43 AIa. App. 2O, 178 So,2c1 832 (cert. denied, 278 AIa. 708, L'lB So.2d 837 (1965) ). "The indict-ment rnust sta'te the facls cotrstituting the offense in ord.inary and concise language in such a nanner: as to enable a person of cotnmon rinrler- st.rnclin-cy tneither a Solomon or a Simplbtoir' to knorv r.;h;rb is inlended. " (!1lLq9"_V_-_ !t-e!e., 349 So,2d 67 , AIa. Cr:irninal Appea.ls cert- cleuietl , 349 So .2d, 86 (AIa- L977) i Chambers v. Stat-e , 364 So.2c1 416 (1978) ) . In Ballarcl v. St;tte, 341 So.2c1 957, the Court sLrucl: starLute r*hich 20 down ;rs void for vaglueness a chil.d abuse usecl the standards unjustifiable pain or ment. It is r"=r""*"-, r"t-*ted that 1!legg! and unlawful are more vague ancl the standards in BalLard. Likewise in is not sufficien c€r ccus con general a support a r e o & mer tt don v.: Sta 52 Ala. 308, the ation of illegal I viction- " I ) 94ina::y punish- the standard uncer'tain than Court voting THE EVIDENCE IN THIS CASE WAS TNSUFFICTENT TO SUPPORT THE CONVfCTION OF T[iE PETITIONER OF THE OFFENSE CHARGED. The prosecutionrs evidence showecl 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. horvever, 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, endorsed a slate 2L of candidates and activcry supported those candidaL.es in each of the elections in LglB. counser wourd suggesb to the court that an examination of any box in any election clistricb of this state for the t97B elections, rvhere blacks vote in any substantial nurnbers, rvoulcl reveal a substantial number of balrots, all- of which were cast for the same candidate- , Second, [a is not unlarvful for one person to pick up more than one absentee balIot applicati""][t is not unrawful for one person to assist more than one person-l (-in filling out an absentee applicatioyj )rt is not unraw- L fur for the person assisting an absentee applicant to put his own return address on the absentee appricationll _) I-tn" fail-ure of the person to sign the ballot in the \- r --- --- --)-- presence of a notary public does not render that barlo.b itself illcgal or fraudulert.] I.Ior, is it illegal or unr.rwfur for one person to return to the office of the Circuit Clerk more than one absentee ballot. (' Moreoverrflhe ballots complained of and introclucecl into evidence as the state I s Exhibits i through 39 rrrere no't shown to have ber:n re'turnecl to the Clcrkrs Office 1- by pet.itioner._illfrus, it canno'b be said thaL petitioner cast any of the complained of ba1lots.1"In every criminal case., the state is requi.recl to show njorra . .o-i.r*ont" doubL. and to the e-xclusion of every other re.rs;onable 22 hypothesis every fact or circumstance rvhich is necessary to est.blish the guilt of the defendant as chargecl in the indictment." Branclon v. st'ate, 193 so.2cl 24o, 227 Al'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. c-ode -of Alabama,, 1975, fiection 1z-r0-4 provides that any applicant for an absentee barrot may have the assis- tance in filling out the application he a""i.""./ Acldition-_/ alIy, it has been established through advisory opinions from the Attorney Generar, and. Federal voting Guidelines rtthat [-nf J-rm and f unctionally irliterate persons arel- entitred to the assistance of their choice in casting \their ballotsJ In Gordon v. Stats,, supra, the court said: "The whore inquiry shourd be directed to the voters knoivredge of facts and. to his dirigence in acquiring the requisite knowredge. trf ignorant of the disqualified fact and.\-- without a want of diligence uncler an honest belief of his right to vote he shoulcl be excused though he hacl not.\ the riSht.J The Court also said: "A11 crime exists primarily in the mind. [i wrongtut intent must concur\- to constitute what the 1aw deems a crimg.-l Additionalry, En* state in its prosecution apparentry\- attempted to inrpute to the petitioner the acts ancl concluct 23 of another . (rni. the state cannot rlo r,sithout a prior shorving #conspiracy betrveen such perso's beyond a reasonabre doubl-- and to a moral cert.inty.l rn u.s. y. _-) Ma-cldox, 492 F.2d r04, cert. denied 95 s.ct. 92, 4Lg u.s. B5], 42 L-Ed-2d 82, the court helcr that an alreged conspirator cannot be bound by the acts ancl declarations of participants in the conspiracy until after it has been establishecl that a conspiracy existed an<l that he r.ras one of its members. see also cox v. state, Lgg so. g06 , 240 AIa. 368; Ivlorris w.'State, 4I So. 274, 146 Ala. 66. D. TTIE FACT THAT THE PROSECUTOR USED HIS PEREI,IPTORY CFIALLENGES TO STRIKE EVERY QUALIFIED I{BI.{BER OT TIIE PETTTIOI{ERIS RACE FROI,I TIIE JURY PANEL CONSTITUTED A DENIAL OF DUE PROCESS AND EQUAL PROTBCTION ABSENT BXPLANATION ON NON-P.ACIAL GITOUNDS. The venire of ju.rors drarvn for jury service on october 20, L979 contained the names of sixty-three (63) persons, forty-n-ine (49) of vrhorn rlrere present and gualifiecl to serve- of the fo::ty-nine (49) persons pe.rseni and qualified to serve, n-ine (9) vre]:e black. Thc State was aiyarcled thirteen (I3) stri]-,es and the petitioner had trventy-four (24) strikes. The state usecl its strikes to sys'tematically exclucle at-1 blacks from jury service by reason of their race or c;olor:. 24 . subsequent to the verdict ancr j,dgmen.t in the case, petitioner fired a Motion for Nerv Triar in rvhich she alIeged, fllgl 3ri.,tr," fotlowing: Defendant .was tried ancl convictecl by apetty jury in the selection of rvhi-ch theie vrassystematic exclusion of braclcs so1e1y by ,"u"o.,of their race or co1or. Defendant ryas therebydenied due process of 1aw ancl the eeuctl pro_tection 9f !h9- Iaw guaranteect by arficfe^ i,Section 6 of the Constitution of atoUrrno,1901, and the Fourteenilr Amendement to theConstitution of the United States. There was attached to the motion the lrtiaavit of the undersigned attorney who served as trial attorney. The Motion for }iew Trial was denied. The allegation in the Motion for Ner,.r Triar of excru- sion of prospective jurors by reason of race was not contraverted on the record by the pr:osecutor. petitioner respectfully submits thab vrhere the prosecutor used his pereritptory challenges to strike every qualifiecl member of the petitioner's race from the jury paneI, absent expranation, uporl convicLion, the pe.bitioner is cle'ierl due process ancl equal protection of the laws. Petitioner is ful-ly cognizant thaL in 1965 the suprerne Court of the Un.ited Srares i" qly-qt!_L_4t3b_q,11, 380 U.S- 202, 85 s-ct - 824, 13 L.Ecl.2d 7sg, herd thaL the fact thart a prosecutor uses his peremptory challenges to strike every qua.lified mernber of the dcfenclantrs rarce from trr-e jury paner does not constitute a denial of clue proccss 25 and equar protection, where there is no sufficient showinE of a historical pattern of e:<c1usion. _Syain, hovrever, did not reverse and was no't inLended to reverse a long line of cases which establishecl the principal that a criminar clefendant is entitred to tri;rI before a jury in which there has been neither systematic inclusion or exclusion of persons by reason of race or color. w" rvourd submit, however, that the rationale un<Ierlying gwain has perhaps become dated, and is inappropriatetry applied. to circumstances which evidence a new sophisticab.ecl and ingenious approach to discrimination. Swain poses an insurmountable burden in those cases where race or color is a significant factor and the prosecutor selectively discriminaLes by reason of race in the selection of the jury, while in other cases rvhere race i-s 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, a.b. reading and interpreting Swain than are attorneys for defendan'ts. A very r.rel-I reasoned concurring opinion in the case of StaLe of Louis-iarna v. Ramond Eames, 365 So.2d 1361, addresses itself to this issue. There the Court said: ", a preslrmpLion should exist during the selection of a jury that individual pcr- emptory challenges by the prosecution are being properly usec1. Once it becones evident, 26 a however, that the prosecution has used a dis- proportionate number of ch.rllenges against members of otre race, or has elim.inated a race, considering 'the proporb.i-onate number of that race included rvithin the venire after excuses, exceptions ancl removals for cause, in my opinion, a prim;r facie case of discrimination because of race has been establishecl, and. the burden of proof should shift to the prosecutor to show that his challenges t{ere not exercised on the basis of race. The state may srlstain its burden by offering evidence that its reasons for individual challenges r,vere not because of race, Althor-rgh the reasons need not be sufficient to ground a challenge for cause, they should appear to have been applied consistently to similarly si'b.uated jurors of other groups, and they should be reasonably relevant to the particular trial or to non- racial characteristics. " Tn the case at bar, the prosecutor used substantially a}l of his strikes to eliminate all of the blaclcs from the venire. Race or color vTas a signif-ic.rnt facl-or i-n ttris case because it involved the right of blacks to voLe -- an elusive right not yet fully realized. Absent explana- tion, a presumpLion of racial discrimination arises and the conviction in this case ought to be set asj.de. E. I'JI{EIIE }4EA}IS BY I.JI{ICH THE OIrI'EnSn WnS COI{IIITTI]D rS ct{A}lGED IN TI{E ALTERT{AT]VII, 11AC}{ ALTBRNATTVE CIIARGE HAS TO DESCRIBE TTIE I'IEAI.IS I.]ITH TI.IE SAIUI DIiFINITEN]]SS OR PNRT ICUI,ARITY AS WOULD IIAVE I}EEN RIJQUIRED IIAD TI-rl1 CIIAiiGE TJAII,URE TO DO SO }I,EIiDERSI]EEN IVIADE IN A SEI'ARATE COUNT. )'7 TIItr EI.JTIRE TT']DTCT}IUiiT VOTD. , t a t The indictment in this case chcrrges disjunctively that the defen<l.rnt: (1) clid vote more thau oncer or (z) deposited more than one barlot for: the same office as her or{n, or (3) did vote il1egally or fraudulc_.ntly. The alternative did vote illegally or fraudulently fairs to state an offense as required by Title 15, section B-25, Code of Alabama, L975, (Bat1ard v. Stqte,'supra.). , See Young v. !;tat_e , 34 B So .2d 544, r^rhere the court held that each separate arternative charge must contain a substan- tive offense under the law, charged with that degree of certainty which Title 15, Section 232 requires. . Likewi=. Iil Boulden v. State , tlg So.2d 20 (1965), t- the court ".ia\ ". under the statute it is premissible for counts to charge arternative means by rqhich the offense $ras committed, but when the means by vrhich the offense vras committed are charged in the alternative, each alternative charge has to describe the means rvith sufficient definite- ness and particularity as rvould have been required. had the charge been made separately in a separate "orrf,J fn Donalray v. City.-of l4ontgomery, Fupt:jl, the court held that if in a single count the offense is char:ged disjunctively, and one of the alternatives fails to state an offense, the defect renders the vrhole bad. See also OuUqgs v, City of ltlcntgomer-y, L27 So.2d 849 (1961) - 28 I , a, . rt is respectfully submitted that the arternative charge "or did illegal-ry or frauclurenbly voter', fairs to state an offense and thus the entire indictment is bad. The triar court therefore erred in overruring appelrantrs speciar p1ea, rvhich was treated by the court as a demurrer. a J 29