Brief and Argument of Attorney General Graddick

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NTN,IBER 276SECOND DIVISIOit

IN THE COURT OF CRIMINAL .A,PPEALS OF ALABA}4A

vs.

STATE OF ALABA},IA,

APPELLEE

ON APPEAL FROM THE CIRCUIT COURT
PICKENS COI.JNTY, ALABAMA

(NO.cc-78-109)

BRIEF A}ID AF,GIJMETiT

OF

CHARIES A. GI{ADDICK
ATTOR}JEY CIiNERAL

AI']D

THOI{AS R. JONES, JR.
ASSISTAITT ATTORNEY GE}IERAL

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ADDRESS OF COIJNSEL:

lffice of the Atttrney General
250 AdminisErative Builaing
Montgomery, Alabama 3513t

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TABLE OT CONTENTS

INTRODUCTTON --:-
TABLE OF CASES AND STATUTES

STATEMENT OF THE CASE

STATEI,IENT OF TI{E ISSUES PRESENTED FOR REVIEW -Lr';-----
/

STATEMENT OF THE FACTS

ARGTHENT - -

CONCLUSION j--------

PAGE

ii
iii
1

2

4

5

2L

22

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tt

INTRODUCTION

The State, BS Appellee, wishes. to draw this Court's

attention to the fact that the present appeal arises out of

similiar faets and circr-rnstances as did the appeal of Julia
P. I'Iilder, Second Division, Nrlmber 262. That appeal is
----presently awaiting a decqgi.on-.-of-the-Sourt.

The State makes note of this relationship for the reason

that all but one of the issues of the instant appeal were also

identically raised in the appeal of Julia P. I^lilder. Therefore,

the Staters arguments, as Appe11ee, in the instanf appeal

will be somewhat identical to those made in the aforementioned

Wilder appeal.

1a



TABLE OF CASES A]qD STATUTES

Andrews v. State, 344 So. 2d 533,
(Ala. Cr. App. L977) ,

cerE. denied, 344 So. 2d 538 (AIa. L9l7)
gigc__lt-_gge!e, 301 so. 2d 286 ,(Ala. Cr. App. L974)

Bolin v. Sta.re , 266 Ala. 256,
96 So. 2d 582 (1957)

Br;ulden v. Statg, 278 Ala. 437,
179 So. 2d 20 (1965)

Chambers v. SrqLe.. 354 So. 2d 4L6,
(A1a. Cr. App. 1978,
cert. denied, 354 So. 2d 420 (Ala. L978)

Cumbg_-y-5!e!e_, 368 So. 2d 871,

PAGE

3, r3

2, 13

2, 9

3, 15

3, 14

(Ala. Cr.App. 1978) - 16

DqqALeJ-J-_liry _o f Mont Bome-sy-,
43 Ala. App. 20, 178 So. 2d 832,
cert. denied, I78 So. 2d 837 (Ala.

Ex Parte Srate (.Dqlvin) ,

[MS. , September 12, f 9B0 , 79-t+9)

1965) -- 3, L4

So. 2d. (Ala. 1980) -- - 16

Terry Glenn tlill v. Starq,
3 Division 115,
(I.lS . Op. Dec . 4, 1979) - - 2

Ba@,405 u.s. 331,
92 S. Ct. 993 (1973) ----- )

no@-S_tates Pos [-:!i f !i,:e Dep.]I!_rn(_\1.!_ .

397 U. S. 728, q0 S. Ct. l/+84 (197(\) - - 2 ,

o

1aa



PAGE

$q.anglard Oil v. State, 1-7B Ala. 400,
59 So. 667 (1912) ' o

^Swain v. Alabema, 380 U. S . 202 ,

13 L. Ed 2d 759, 85 S.Cr. 824 (1965) - 18,19,20

llorne_J.* ftek, 348 So. 2d 547 ,

(A1a. Cr. App. L977) 3, L4

Csde of Al-abama 1975, /

Section L7-23-L r- --- ----2, 5, 8 ,9 ,10

Section 15-8--25 2, 11

t_v



SECOND DIVISION NT]MBER 276

IN THE COURT OF CRIMINAL APPEALS OF ALABAMA

MAGGIE BOZEMAN,

APPELI-ANT

vs.

STATE OF ALABAMA,

APPELLEE

APPEALED FROM THE CIRCUIT COURT
OF PICKENS COI]NTY, ALABA}'IA

BRIEF AND ARGU},IEI{T OF AI'PEI,LEII, S ATE OF ALABA}4A

STATEMENT OF THE CASE

Ttre Statement of the Case as set forth in Appellant's

brief is substantially correct and is adopted herein by

re ference .



ISSUES PRESENTED FOR REVIEI^I

I.

I{HETHER CODE OF ALABAI"IA,L975, SECTTON L7.23-7
IS CONSTTTffi
YES.

Co de of Alabama 1975,
Section L7-23-L

Rabe v. Washinqton,
405 u. s. 331,
92 S. Cr. 993 (L973)

97 U. S. 728,
90 s. cr. L484 (1970)

Bolin v. State,
266 Ala. 256,
96 So. 2d 582 (1957)

Standard Oi1 v. State,

59 So. 667 (L9L2)

L979)

II.

I.IHETHEIi THE INDICTIlEl\.iT ACAIi\ST APPE{,L.\iiT
WAS DETICIENT?

NO.

Q-cl d-e,--? t-A!a ilan a*-I-XJ-1
Section i5- ti-25

Birge v. Stille,
301 So. 2d 2,\5,
(Ala. Cr. App. L974)

2

Division
(llS. Op. Dec.



Andrews v. State,
344 So. 2d 533,
(A1a. Cr. App. L977) ,
cerE. denied,
344 So. 2d 538 (Ala. l9t7)

Donahey v. City of Montgomery,
43 Ala. App. 20,
178 So. 2d 832,
cert. denied,
178 So . 2d 837 (A1a. l-96s)

Chambers v. State,
364 So. 2d 4L6,
(A1-a. Cr. App. 1978) ,

cert. denied,
364 So. 2d 420 (Ala. 1978)

YounB v. State,
348 So. 2d 547
(AIa. Cr. App . L977)

Boulden v. State,
278 ALa. 437,
L79 So. 2d 20 (1965)

II1.
WITEI'IIER THE STATE PRODUCT.:D SUFF'ICIENT
EVIDENCE TO SUPPORT APPELI,ANT'S CONVTCTi.ON?

YES.

IV.

I,I}IETHER THE PROSECUTOR UNCONSTITUTIONALLY
USED TI]S PERE},IPTORY CHALLENGES TO TIIE
JURY VENIRE?

NO.

3



STATEMENT OF THE FACTS

The Appellee's Statement

to the Statement of the I'.'-rcts

brief.

of the Facts is in addition

subnrittecl by Appcllani in her

In addition to Appellant's summary of the testimony

of Paul C. Roll-ins, the State, as Appel1ee, vror:ld I ike to
point out thac on cross-examination Mr. Rollins testified
that it was Appellernt for sure who had made a phone call to

him a day or so before she, Julia l,Iilder and two or- three

oEher young wornen, had brought the thirty-nine ballots from

Pickens county for him to notarLze. i{e stated r.hat Appellant
called him and requesLed that he notarize some voting ballots
of people in Pickens ccunty. Mr. Rollins rhen stated Ehat

raithin a day or so Appellant, Julia l,iilde:r ancl tr.r,r) ()r three

other youlg females brr:ugiht a bag full of ballots to him

in Tuscaloosa to be notari zed by him. Ifr. Rollins admitted

that he did not know no:: haci e'ver seen any cf thc thirty-
nin,,,: nA:,i,1S t.() i..rilj-Cir h(:,,,ritjj ,.l,rl:,i-,_i t-,-: .lLia,,ri-

In aclditi.on to App;:1la:rt's sii.lilrt:,1i..,/ t:f t-lle restimony of

!-gpL,.L._S-L{, r\;>;,el lerl n}usr- a I.so 1;r i-nt ()ur th;r i f,..:st in.ony

scen frcm l";lss ljir:rtn tr:r,ii.i-r;,ir^, -,, ;li' P,t1,,i' f il!, r,i' ii-,. :;.,_,,rr:r! .

Iuliss Spann ibrs::if i.e<t that coDC(:'rn j rt:,, t.l.it, Sert,1-e,,1',i:r.,. ;!6 , L97,3.

run-o.ff e1:r:t- lort o^he had aLEecr;rie,J to votrl i-ti r-hr-' Ccc:hrane,

Alabama, area ils s;he' arru,arys irlrrl do:'rc. she :.:ri cl th:-ri- she hi:d

never votecl aii ilnv ()t-her p, 1;ir.:r. .rrtrl I.i;ril no'vttu;rrrkr'd f,sr an

4



absentee ballot for heirself. She furthcrr sL;rt.ed at Page L79

that t!{aggie Bozeman, knor,u.n to }Iis:; Sparrn by he.r rnaiclen

name of simmons, trad talked to her abour absencee voting
priror to the election, but hatl never come back about it again.

when shovun an absentee voting appricaEion l,tiss spann said
that she had never signed it and that the signature of her

name on it was not in her handwriting. she "i"o stated
thaE she had never received a voting ballot in the mail
as a result of this application or at any other time.

0n Page 185 l"Iiss spann further resEified that when she had

gone to vote in Cochrane at her usual place she was told some-

one had already voted for her in Aliceville, Alabama.

Earlier on Page 184 Miss spirnn said that one tin:e Maggie

Bozeman, Appellant, had come to help her vote in Aliceville
and that she had told Appellant she voted in cochrane, not

Aliceville.

i'Btrlt:1l]J:i

I.

cop_E_*Qq__4!Ag4UA_1-gZI, sEcrrotr t7 -23- L is
CONSTITUTIONALLY SOUND.

Appellant c+ould contend [o this Couri tirat code of Alabaina

L975, sectir.rn L7-23-l isr vnglre, indefinite and uncertain such

that it offends the Consti.tutic'rns of Alahama antl the tlnited



States. i^lith this contenti.on the State of Alabama, as Appellee,

respecEfully disagrees and arg;ues instead that the aforementioned

statute is constitutionally sound; therefore, Appellant's

conviction therer-rrder inust stanci.

Before aCdressing the merits of the constitucional attack,

the State would point out that there is evidence contrary of

Appellant's claim that the State failed to prove that she 
t

attempted to vote more than once or deposit more than one

ballot as that of her onrr. The record indicates that Appellant

r^,as properly charged under the first Ewo provisions of the

relevant statute and this refutes Appellant's contention that

she was not ancl that the examination of the statutef s

constitutionalj-uy had to lhus focus r)n the last phrase of the

statute dealing with illegal or fraudulent voting. The

testimony of record from various witnesses in<licatecI that

Julia Wilder, r\ppellant, and several other: parcies actively

engaged in the acts of submittingr. appLi-cations for absentee

b;lllCrtS , Cl:t:ari rr ., n;Z thc v()i-- ini; ira'1 ii:, 1.:r i)lt r:.i t,l{r r, i' ic I i1 (}:-ir:

ap6;licacions, havin;r thetn il1c1,,al-it, rjr)1-ij::izcrl r>i-rf. of chc'

counEy, arit1 ultimat<:1y sr:btlit,ti.n,, t-hern i-rsr votc.sr r-r [= r-trcir 0r1rn.

l-
frguably, mlrcb of thc e'ziclencs- .tp,ar:nst- Appel lant- nra'/ liavr--: been

inferential , tlr.',',.reve.r, Aoi're11ant. nl.'l.y bc propnrl rT r:c-lrt./icre<1

by'means of ci::,.:umstantial evi clenc'e ;,is ',vr-.11. irs by direct

cvicience.T Opru Llar:t vras-; a p-rirnirry par:tv to [tre ],.r()up of women
--



he was atEesting.

in a car outside

Clerk's office of.

that carried the ballors of other inrlividual voters to Par:1

Rollins in Tuscrloosa, Alabarna, to be notarized by hi.m without

ever having seen or knourn Lhe voters whose signatures to which

Furtherrnore, Gppullant was seen r*aiting

Lhe day Jrrlia \,lilder entered the Circuit

Picken's County to submit the.absentee
-]

ballots. I

Given then the fact that this Court must consider the

statute in its entirety rather than in piecemeal fashion, it

becomes encr:mbant to look to the case 1aw in evaluating the

constitutionality of the 1aw. In that regard the l]nited

States Supreme Court i" 6US_v. WashinHtonJ aOS U. S. 313,

---92 S. Cr. 993. L. Ed. 2d (1973), has defined

the minimum stanclard for statutory clarity as follows:

I to avoid the constitutional vice of
vagueness it is necessilry at a
mininnrm, Lhat a statrite givc fitir
notice that certain conduct is
proscribedi -/

-Jl:-'tri' r\ppe l- -1.an t 'rit-'ul 11 h rt 'r.,: r-I:) br.' I :c, i'r,- i-i-: ;ll-. a :i t ,'r ' '.;f c' il,. r-

bidci:-ng v()t.i.ng riro.:-e l-lriru ()oC,.r in i.'ir .-.1-e,:-'1 ..!n i,, r;o rr'i]guc

ttrat she did ncL knor'r lL rvas ag,ai.:rst i-he 1:rl..; r-o attilrrrDt io

oircain absenr-e.r votlng bal.Iots thr:r>u6;li applir-:rtion:; tor: other

voters,ha-r,e l.hose siEr.n:rrures r-lotitriz,.:cl t,r' si(.)Ili-'(-)ne wh() dirl noL
/

know the signatures were val j d, hnd f il l out ;tnd sign those
I

ballots without the voters apirror,,al or knowl cd1'-e, Jthen returrr.J

-,:j.g.:!**+ -



the ballots to the Office of the I'ichens Cr:tmty Circuit Clerk.

If this be so, then Ehe ques t ion v;tlictr logi ca111, cr.rrl€s to mind

is, if Appellant did not'rcnor,, and could not; ha.;e i<nown her

behayior was ol: a criminal nature, rhen u'h1- ciid she try to

cover up her action by participating in signing the name of

other registered voters on the ballots and having them notarized

without those voters knowlecige or assistanceZ f if sn" truly(-
believed that it was permissible to vote more Ehan once in

the election, then surely she would have signed her orrn name

to each ballot.)Hor"ru=, she did attempt to hide what she
.t

was doing for the very reason that it is clear from the statute
that her conduct rvas of a crirninal nature. Hence , the argument

that she could not as certain frorn the statute whr,rL type of

activity was prohibirerd is a Lra::cl one to srralloiv.

Moreover, the trier of fact did not find Section L7-?-3-L

dif ficult to r.urderstand or aclmini:jc*r, f--or f r:onr the ev-i dence

if clearl'/ apoea::ed th;rt Appc,1 i:rnt irarl './(-rt.rri m,,re- ih:rn once.

Th,,' i.aterr t olt i,ir(j :r L tl:i,.: i:j ,:li,.rr , .''', r. ,i"i,', ,i, \rot,.'tr is

to have onl1r c',nl vote pe r

voEers h.rve an equ;rl rrr;ice

vot.is per citizen io be aI

nrle would di.sappear on1.y

could pull the l-evers the

eLect-Lon Lro that lll re;ii:;tcred

in titr=r ouicc'lrne. I,,r'e:r:e nuitiple

l.t-rlvr:rl. Lhen c1i:a11.,, tl-re inajority

to l,'e replacccl by t ltc' n,rinority whcr

most times on election day. Surely

such a spectacle has no pl.ace in orlr elective process



Furthermore, in Rorvan v. United States Post Office

DepartmenE , 39 7 U. S . 728, 90 S. Ct . L484 (1970) it was held

that a statute is fatally vague only rvhen it exposes a

potential actor to some risk or detriment without giving him

adequate warning of the natu-l.e of the proscribed conducE.

Clearly the statute at issue merely codifies thd well knor^rn

fact that a person cannot skew an elecLion purportedly based

on the idea of one person, one vote.

Furthermor.e, while Appell.ant cites Bolin v. State,

266 ALa. 256, 96 St-r. 2d 582 (f 957) and

L78 ALa. 400, 59 So. 667 (1912), it is

cannot be read ,so as to merit a finding

is void for vagueness.

the ground of uncertainty.

Finally, r,;,hi Ie nor dispositive

Glenn HiI.l v. Srare. 3 Div. 115 (l'Is

Standard Oi1 v. State,

clear that Lhese cases

that SecEion L7-23-L

of tire isstre: , in j_gff-y

01r. Der,-. 1,, ".97()) this;

B.oL4, supra, concerrred a statute which in its practical
application forbade the posse.ssion of rnany beneficial materials
used by industry and agriculture merely because such materials,
if combined rvith certain other: ingr:erlients, mip,ht be conrnonly

l::;ed cr n(lce-{Ii;rry tn t.i-ir,r mirki i'i.-. o f .r "sti-nlt b,rlrnLr. "

Moreover, Standard Oi1 v. State, supra, merely reaffirrned

that the court will seek out anci:tck>pt any rea.son;,rlr1e construction

of which a statute is srrscecrtible, rall^rer th:in nitllify it on



Court noted that the nurnber of years the statute has been

in effect is a relevant factor to be considered when evaluating

a void for vagueness argunent. llence, as in that case, there

is "doubt that there are any...statutorily definerl crimes

that can be more readily understood by reasonable people

than the one nol,r under consri-der:ation, ttre old, the young, the

rich or the poor, the learned and the unlearne<l, ,hurur"r they

may be.)

Based on the foregoing, the Srate submics that Section

L7-23-1 is not unconstitutionally vapue and hence, Appellant's
conviction musL stand.

II.

THE IT'IDICTMEI.IT RENDERXD AGAItiST APPELLAIiT
I.IAS CONSTITUTIONALI,Y VALID AND APPELLANT
tr,IAS PROPERLY CHARGED THEREUNDER.

Appellant makes a two-pronged argument concerning the

validity of the indictment against her. It is first
argued that the statute in qu,-rr;t:iori faj.l:; lo l;ilt [ar:Lh ttrr:

eLenents of the crime and hence, to rnerc.ly rcllow iltc
language of the statute was not suf fi ci;:nt tr-r tri r.e notice of
wlrat she was callecl upon Lcr rle fen d.

Appeilant thcn si-ii fts: trr iitt, ;l.r'r.r-itnci'rf i irai, ' i,ir,' inri'i r:1.;nerit

charges disjunctively th.'.ic App=ll;,rnr: ,l.i<l vot r: rn.:re th;:,n once,

or deposit morc) than (.)ne baIlot- fo: tire s;rmc t t'f i e, as her oh/n,

or did vote illegai 1y or fraudulr:11t-ly. t' (r\por'lI anr 'r:; Brief ,

10



p. 20). It is then argued that the last alternative, "did vote

illegally or fraudulently" fails to state an offense as required

under Code of Alabama 1975, Section L5-8-25.

The indictment under which Appellant '..ras tried eharges

that Appellant:

COT]NT OI'IE

did vote more than once, or did deprrsit
more than one ballot for the sanie office
as her vote, oE did vore illegally or
fraudul,ently, in the Dernocreti-c Prinrar:y
Run-off Election of September 26, 1978,

cotNT Ti^Io

did vote more than once as an absentee
voter, or did deposit more than one absentee
ballot for the same office or offices as
her vote, or did cast illegal or fr:rudulent
absentee ballots, in the Democratic Primary
Run-off Election of Septenrber 26, L918,

COUNT THREE

did casE i1legal or frtrudulent absentee balloEs
in the Democratic Prirnary Run-c,ff Election of
September 26, L978, in that she dj.d deposit
r.zi ch thr: Pi cl;ens Cc',u'i t'v Ci:'c..:i t Cl r. r-l' . .'ibsenLet:
ball of:;'".;fri ch tr'tjL'e frau,.1uLr-,-,tt.. -r:id'.;l: r <,i, :,lie
knew to bt: f r;ruclul(.'n [- , iiiiiri-rtI. L the [)(]&rrc and
dignity of the St:rtc of Alabama. (R. p 32.0-
32r)

At the Outset f he SLar-t.. s;rrbnrit s Llr;ri. rearl ir-, i ts ent.ircCy

Ihe statute docs i ncloed set olrL t i're: r)l-c:l.rIl',--sr t'i iht of {ense,

Appullant's content ion to tlie (:r-rnLrary notwithr;i::,ntiing. One

of the elements consi sts of cii:itin9. ii1.,-r,., than one vote in

ll



the same election; another element of the offense con.sists

of depositing nore rhan one bal.lot for the s:rrne office as

one's own vote when not entitled to do so.

However, nlc)re imporL:rn[ tharr the fai-'t that t-he elements

of the of fense are clear is the fact th;rt f rom the incli ct-
ment itself it is evidenE. th;lt each alternacive count of

the indictment was sufficiently detailed so as to indentify

the accusations, enable Appellant to prepare her defense,

to foreclose the possibility of being placed in jeopardy

for the same offense and to enable the court after coll-

viction to pronounce judgment on the record.

By way of example, Count One informed A.ppell.ant of
the date of the elcc[i.on in lvhic]r she was srspecled of
fraud,further identified it as being a rLin-off el.ection,

and was even rnore specific in stating that it rvas a

primary for thr: Democratic part-y'.

Likewise, (lount Tu,o notifi-ed her f"irat shr, w:,ri .; ris-

pected of havin1.r, conmit-l-ti,,l thc i:rine l:-;i il-cr;riis rril .,!rsr,nl'e,.:

tr;r1 I-lt ;itrd:lg:ri.ir speii.iir:rl i-irt, i';.rLi:, rii... t-.r'i t-:::: It-- wa:'

a run-off el.er-'Lion ancl thl,fa,-:t tlrat it wit;:- ,: fr:-i-i;.,'tr':l
for the Democratic Par-ty.

CounE Ihres:, tire courrL att;,rcked b y' ,ippc t.I .lnr . i r; :rrl

specific, if rioE more so, as the preceding two coi:nLs in
that Appel.lant rvas noti fied that the suspccted criminal
activity cotlsist-ed of czrstinF, illegaJ absentec baIlot"s.

L2



Thus, she was again warrled of the fact that absentee ballots
r.rere involved; thaE it was e run-off election; that it was

a primary for the Denrocratic party; that said run-off occurred

on September 26, 1978; that the fraudulent votes were deposited

vrith the Pickens cotrnty clerk; and finally, Appellant was on

notice that the State was prepared to prove that Appellant

intended to cast the ballots despite the fact that she knew

them to be fraudulent.

Wtrile Appellant ciLes a number of cases which are pur-

ported to be in her favor, a careful readinp. shows that none

of them would merit reversal . For example, p_ilge v. state,
Ala. cr. App., 301 so. 2d 286 (L974), merely srares rhe well-
established constitutional pri.nciple that an indictment must

not only state the elements of the offense but must also

identify with a sufficient degree of particulariEy the trans-
action to which the indictment relates as co place, persons,

things and other details. rr: other rvords, the accused rnust be

able to reasonably unck,rs lanC lrot orrl.,, tire nat-'rrr:: of the

oifensr: but t-ht', [)ilrficul.ar acL or';r(-i.r,: r-tlur. liir'1 ,,,

rnusf be prepared vrith tris pr.oof.

Moreover, .qn9gg-y-1.._y-. Sti_!_11, .\ Ii.r. Cr. App. . 3t+4 So. 2d 5J3

(L977), cejrc. r.leiiicri, AI.r. s/+4 Sr:. llr.l 53U \Lgl-i) is ;rl,:;o

inappIicable bc:cause it. dealt spccifical ly witt-r an rlssrault

indi ctment r"hich farally lacflecl tho nilme of t,h,.r zrs-sault

victirn. Delving intr,r Errpli.sh lerg,al hist_orv tirt_. court

t3



forled thaL sirtce the year f597, naming. rhc vi,-:tim of an

assault had been essential to a r.zal i d inriic'trnerLt at

cofltrnon Iaw.

Further, .Dqnahey ,. Ci.ty "f _HqnqgegqrJ_, t+3 A1a. App. 2A,

178 So. 2d 832, cert. denied, Ala., L7B So. 2d 837 (1965) is

distinguishable in that the accused was in<ticte<1 fg,
disturbing the peace of others by violent, profane,

indecent, offensive conduct but was never informed of
just whose peace he was supposed to have disturbed or

what act he had conrmitted to disturb the peace, Certainly,

Appellant could not claim surprise or ignorance.

And her case in no way approached Lonelgy, sur.,ra.

Moreover, while AppeIlant relir:.s on Chainbcrs v- State,

A1;-r. Cr. App. , 364 So. 2d 4L6 , cc rt- . clcniu, <i Ala . . 36!+ So. 2d

420 (1978), that case stands for t-Lre prop()i:iiicrr ttrat

vaEueness challenges tri sEaLLrL(::-(,,rirj.cli rlo rjot irr.:oIve

Finst Amendment freedons orrrst llt r,):iiirrir)c'rl it' 'l t ,.hi- ,] [' fi"lc-

faCt:; Ol- Lire' C;.1 ::i (_r ;tt j-lltriri . [.l,ri-,_' i-,'i_, (-,i; ,,i,rt I.... i ... , r.)rii-,'

went on tc find that Appell;ltt hlirJ br-'e n givr:n suf {-ici r:nt

notice of the charges she ruas to face.

Moreover, Younp. v. Statr-, A1.'r. Cr. AJri;.

(L977), deals solely with ;rn incliL:Lflulnt for

obtaining drugs and requires that the tinre,

circumstances be set otrt with part i-cularity

. ')t'8 licr . '2rl 547

un Iirr',I u1- 1y

place and

I/r



Finally, in Boul<len v. $_qgrg, t\la. , L79 So. Zd (1965) ,

the demurrer Eo the indictment '."ras he-l-d properly overruled.

Hence, from the foreg,oing it i.s plain thaE Appellant

has shown no reversible error in the indi ctment.

III.
THERE IJAS MORE THAT{ SIIFFICIETiT THEORY OF
THE EVIDENCE FROM WHICH THE JURY WOUI,D
HA\IE EXCLUDED ALL REASONABLE II{FERENCES
BUT THAT OF APPELLAI{T'S GUILT

Appellant argues in two separately ',rritten arguments

that there $7as no evidence of record sufficient to prove

fraud, directly or by inference, or sufficient to support

Appellant's convictio.,. [-fir"t of a1.l Appellanr: attemptsL
to describe rvhat frar-rd connotes and arg,ues that Appellant did

\only what she percejved she had ar right to clo h17 law. I
r 

r- - -' --D"- J
Secondly, /Appell-ant ar.eues tirai tl.,r: rirosecilr-i-on':,. r:vitlcncc't) --l

clici not show ttrat ApptI.Lani- acr-rr:ri11' 11id ,:n.yi-i-ring i LLr:ftlLY

It i.::: .t :;i-rolli; cr.:rtizicl-i .,r-i ,,; i it i.. !,r ir'-,. r 'h ;i ..u,.r,-,1 t-l:r-.

:;ufriciency of the eviclence is ::t t.r,. i<cri t-oo nlan-y ivriters
fail to understand ruh;rt thaE attack means. In this writer's
r-rpinion attacking the sufficierncy r:f the ervi<1ence connotes

b,oth a challenp.ie as to wl'rethcr thc. cause shcr-rld tiavc- even been

submitLed to ther jury as well as to rvhether aft,:r being

properly subnitted to the jury the Court- feels the erridence

supports the verdict rendered. AppeIlant ar;),uc-:s that- there

t5



I{as no evidence to prove fraud treyon<l a reascnzrble doubt and

that the evidence could not support the conviction. Both

allegations speak to the resulting decision made by the jury
after the case r^ras submitted to it, and therefore it seems

apparent to the State that Appellant has attacked the verdict
rendered by thaE jury after the case was properly submitted

Eo it.

The proper standard for this court in approaching a review
of the jury's verdict was seL forth by the Alabama supreme

Court in the recent case of Eli ?arre Sta!.1_Qg_1_yig), []1S.,

September 12, f980, 79-491 So. 2d (Ala. 1980).

There the supreme cor:rt follor,,red this court's clecision in

_Qggbg__yr-*!_t_e!e, 368 So. 2,3 871 (Ala. Ci:. A.pp. 1ci7,g), tn
sayinB that "[\..I]e must keep in rninri Lhar fri,-, rer;t tu be

applied is nnt sinT.DIy whether in the opirrion oF rhe trial
juclge or the appel late cr;Lrrt t.he r-'vj.cle.:ncr: iaii l r. to exc-lude

e!€T! reasonab j.r: ir.vpcthesi.s but thaL of Irr_ri1t. [rrr t ta.then

t';ent on to sily that the appell ate court's objective is to
exarruine the record to deter:nrine if Lher:e is .rny theory of the

evidence from which the jury nright have excluticd every reasonable

hypothesis but that of guilt beyoncl a reasonlhle cloubt.

Fi.nally, the Supreme court pointed out tlrat as saicl in cumbo

v. state, slrpra, the revier{ must be pur in tiic li;,,,lrt most

favor:able trr L[:c: pros€icui-ior-r. Thus, t-lrc isr-;rr,' .-rt- h:ind now

r6



becomes whether there was a th.rory of Lhe erridence from vrhich

the jury coul d have founcl Appellant p,ui 1ry.

rn light of the abover standard rhc statc would poi.nt

out that Appellant's o',,..'n brief recites ttrat the prosecution's
evidence showed that Appellant picked up approximately thTenty-

five to thirty absentee ballots, t€lephoned paul Rorlins a

notary public in Tuscaloosa as to if he wourd notarize the

signatures on such ba1lots, accompanied several other women

to Tuscaloosa where Mr. Rollins was successfully asked to
notarize the signatures on those ballots of people he had never
known or seen, and then accompanied Julia l,Iilder to Carrollton,
Alabama, and waited in the car while l,trilder vrent in and sub-

mitted those absentee ballots tr: the circuit clerk's office
of Pickens County. i.lhe[her Appellani satisfactorily refutecl
these charges or shoroe:d thar even thougtr the bal.lots were

al-l sinil.iarly vr-rfr-:d chat suc:l; vror-r.Lrr be the c:rli(_. arilong a

ma_]ority of tr]ztck vr,rgs.* f,.t11.L),,vj.it..r. tlre Alat;;rrira Denocratic

Conit.::rencc. '...,.3s :l at ili,s:. 1(rrj fi.,;_.ihr i

i-l;r rl- ihe pri):;ecr.,rL ;.tlii':-. r:v'idetii: l) a; i. l:

Eo orrtvide a thetor,,* up()n wlrich LIl.,.i

al l reasonable in fer€:nc(..s Lirrr that. r)

l,,ri-:ct-lrer Eht: -]ury iv,ouirl bclir:1,r. t-li;ru

b.y Appellant r.rirs the provincc of the

Lhe. re

L7

**+4
6"24,,b

i.r.r -i r.,t i-[i c i.eni

-' (,:{c I r:de cl

rrr.ri I t .

;-t.sserted

,3 theory,The State respecI fu1-ly .sui.-.mlts; was



wiewing the evidence in the lip,ht most favcrable Lo the

prosecution, upon which the jury could find Appellant guilty,
and that the jury's decision of such guilt siiould be affirmed.

TV.

THERE I{AS NO VIOLATION OF APPELLAI{T'S. CONSTITU-
TIONAL RIGHTS BY THE PROSECUTIONS USE OF ITS
PEREMPTORY STRIKES TO THE JURY VEI.IIRE.

Appell.ant's final argument asserts that the prosecutor

violated her constitutional due process and equal protection
rights by using his perennptory strikes to exclude all blacks

from the jury venire. The law is against Appellanr on Lhis

issue and the :,:esr:lt is that Appel.lanE's on.i-'y aiflurnenL must

be to harre the iarv change d. Tlie Appr- i 1,-rt. rri:ipegt- fu1 1 y

dissents with thir-. attempt and suhinits that Sr+ain v. Alab:]rna,

380 U.S. 2O2, 13 L. Ed 2d 759, 85 S.Cr . 824 (1965), rcmains

the better rea.soned arg,ument.

In Sruain the llnited Statcs Suprenie Court sEood frrlly
bchi.nd rire rrriiri'llr:1,,.I -j ur), r;rjicr,: Li.,rr prL-'cess. :,:i,/ inir, LIr;_rf ii_ trils;

obvious Alabarna had not excludc d a racial i:rorrp fros, either
i ts grand or petit j ury panels . Alabama's sei.ection system

ha$ onl',' been more ccnputerized anci irnprovr-..d sinc'r'lhat time

and thereforc t-he vie,r.l of Alrrbail,e's tjystcfi.' as sc,()n in Swrrin

i s even mor(r valid t-oday,

AppelIant, hc',r(.\rer, vi,lul d furti-ier iri:!.;ilL. Lh;lt ;rl i irtrugh

1E



Swain is the larv the prosecutors in Alabama are of such

character that they rvould improperly use the law to a defendant's

dj-sadvantage. Nevertheless, the united states Supreme court

stated in Swain that the Alabama system had merit in its
position and that in light of the purpose of rhe perempcory

system and its function the Court coulcl not hold ttrat the

Constitution requires an exarnirration of the prosecutor's

reason for the exercise of his challenges in any g,iven case.

The Court further stateci that che presrmpLion Ehat the

prosecutor used his challeng.es in any given cr.rsc to obtain

a fair and irnpartial jury i-s not overcornu by rnere aliega.tions

that in Lhe particular case at hand ali. Neg,roes \^/ere reinovecl

from the Jury or that they were so r:emoved due to their race.

Ihereforb, Appellant has simply atternpted to do what

the United States Supreme Court refused to accept in gwaiE.

Appellant's only argument for .so doing. is to attack the

credibility of prosecutors statewide, alleging, that Lhey

under the disliuise of i:he law. Absolutely no other proof

of any type is of ferr:d hy Appel lanr- r:the r than this h<>lrl

insintration of lbtrse o.- p,o',,.,er,,i-r tire prcrir-.crrLi,:nl. i,r'[;;-r1.f.

In thaE vein Appel lec, corrl.d mz-rl.:c tne s.im,- bolrl arp.rllfcnt of
Appellant becar-lt:,o al-thougir A.;.rpe1l-ee h;rcl <tnLy rlrir:te<rn (13)

strikes Appellant had twtrrl,y - ior.rr (24) str!ilc..; ,,rtr ir--lt al l wcre

r9



used to sErike r,,rhites from the jury panel.

In conclusion, the SEate, as Appellee, would sirrply

and respectfully argue that Appellant has only. attempted

to revive the same argument made in Swain where it was clearly
and decisively overruled by the unlted states supreme court.
This Court has followed Swain in the past and Appellee

respectfully submits that it should continue to do so and

affirm Appellant I s conviction as to this issue.

20



CONCLUS ION

In conclusion, the AppeLlee, the State of Al"abama,

respectfully submits that there is no error in the record,

and the Appellee prays that the judgnrent of the Honorable

Clrcuit Court of Pickens County, Alabama, in this case

be affirmed

Respectfully submitted,

ATTOR}IEYiASSISTAI{

rffitLl
I

"- -dl

I

2l



( (

CERTITTCATE OF SERVICE

I hereby certify that I have served the foregoing Brief

and Argunent on Solomon Seay, Jr., Esq., GRAY, SEAY & LANGFORD,

352 Dexter Avenue, Montgomery, Alabama 36104 by placing a

copy in the United States l'tatl,, postage prepaid.

DONE this the jiqj!! day of January, 1981.

\*

ASSISTANT

ADDRESS OF COI]NSEL:

0ffice of the Attorney General
250 Administrative Buildtng
Montgornery, Alabama 35130

N

22