Appellate Brief

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1}!!I_99--g_9_ry!i,!tf ..:

TARI,I] OIr AUTTiOitIT.TIIS

l_{e_9

iii
iii
iv

1

5

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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