Wilder v. State Court Opinion

    WILDER v. STATE
Clte raAfrCr.Am,l0l so.2d lll

Ala. 15f

marijuana waa found
a rmall amount was
t of the downstairE

r beforc the jury does

d or leased the aparG
e appellant had been
er been thele before
rn, or (8) whether the
rf the prcaence of the

, there was no evi-
lills obsen€d in the
to the appellant at

)rr, at the end of the
when the appellant

:xclude the evidence,
rce prcsent€d in the
rhich would support a
e pooseasion of mari-

uently under the im-
e submittd outside
rr7 during suppression
he element of poases-

rpl over the premisea;
nce will not ouffice.
I peaented aftcr the
i been made and over-
upn aL 1145, we stat

r after the State had
the motion to exclude
j, cannot be used to
of the jury. In con-

on aa to whether the
'overmled the motion
only consider the evi-
rfore the trial court at
r to exclude was made.

; 4l AlaApp. 669, 216

'orcsrc,n v. St8t€,6,6 Al&
t 8frI (1975), cert. de-

, 821 So2d 8&8...."

the aufficiency of the
n to exclude the evi-
look to the evidence
r to tlre jury at trial.
are also limited to the
t the time the motion
tate, Ala.Cr.App., 869

So.2d 892 (19?9); Kent v. St8te, Ala'Cr'

App., 86? So.2l 5(8, cert. denied, Ala', 367

So.2d 518 (19?8); Peoples v. State,56 Ala'

App. 290, S21 So.2d ?57 (1975'). lVe there-

fore find that the trial court erred in deny-

ing the appellant's timely and well ground-

ed motion to exclude the Stste's evidence'

REVERSED AND REMANDED.

All the Judges concur.

Ex parte State of Alabama.

(re Willard Gene CRANE, alias

v.

STATE of Ahbama).

8(F528.

Supreme Court of Alabama'

JulY 24, 1981.

Certiorari to the C,ourt of Criminal Ap
peals,40l So.2d f48.

BEATTY, Justice.

WRIT DENIED_NO OPINION.

TORBERT, C. J., and MADDOX, JONES

and SHORES, JJ., concur.

Julia B. WILDER

Y.

,tr.. STATE

' 2 Div. 262.

C,ourt of Criminal Appeals of Alabama'

March 31, 1981.

Rehearing Denied APril 2l' 1981.

Defendant was convicted in the Circuit
Court, Pickens County, Clatus Junkin, J., of
voting violations, and she appealed. The

Court of Criminal Appeals, DeCarlo, J', held

that: (l) prohibition against "illegal or

fraudulent voting" was not unconstitution-
ally vague in that words "illegal or fraudu-
lent" merely described intcnt neoessary for
commission of offense, remainder of etatut€
provided clear statement of what conduct

was proscribed, and reasonable intcrpreta-
tion of predecessor to statut€ was pruvided

in opinions of Supreme Court; (2) indict'
ment was sufficient to inform defendant of
particulars of offense; (3) evidence was suf-

ficient to sustain conviction; and (4) re-

marks of prosecutor at close of rebuttal to
defense attorney's closing argument, in
which prosecutor referred to his next case

as involving death of black man, was not
prejudicial to defendant, a black woman'

wherne racial comments were provoked by

defense counsel.

Affirmed.
Writ denied, Ala., 401 So.2d f6?.

1. 51"1u1ss G-'17

Court of Criminal Appeals should exer'
cise power to declare legislative enactment

void for indefiniteness only in most extteme
cincumstances.

2' Electione e3ll
Prohibition against "illegal or fraudu-

lent voting" was not unconstitutionally
vague in that words "illegal or fraudulent"
merely describ€d intent necessary for com-

mission of offense, rcmainder of statute
provided clear statement of what conduct



152 Ala.

was proscribed, and reasonable interpreta-
tion of predecessor to statute was prnovided

in opinions of Supreme Court. Code 1975,

s r?-23-1.

3. lndlctment and Informetion e7l2(l),
ll0(3)

It is sufficient in indictment to charge
elements of statutory offense in words of
statute, and only qualification to this rule is
that indictment must apprise accused with
reasonable certainty of nature of accusation
against him, so that he may prepare his
defense and plead judgment of conviction
as bar to any subsequent prosecution for
same offense.

4. Indictment and Informstion e=71.4(l)
Indictment in prosecution for voting

violations was sufficient to inform defend-
ant of particulars of offense so that she
could prepare defense. Code 1975, S 1?-23-
t.

5. Crimind l^cw q=552(4)

Cir.cumst8ntial evidence must be ac-
corded same weight as direct evidence when
it points to accused as guilty party.

6. Electlonr a=329

Evidene in prosecution for voting vio-
lations, including testimony of witnesses
that they did not sign absentee ballots al-
legedly voted by defendant in their n8mes,
was sufficieat to support conviction. Code
1975, S t7-?3-t.

7. Crlmlnel lrw e.725
In prosaution for voting violations, rc-

marks of pruecutor at close of rebuttal to
defense attoraey's closing argument, in
which prosecutor referred to his next case
as involving death of black man, was not
prejudicial to defendant, a black womqn,
where racial rcfercnces werre injected b!
defens€ attorney in his closing argument
and prcsecutor's rrcmarks wer"e prcvoked by
defense counrel.

8. Crtmlnd lrw e770(3)
In pruoeortion for voting violations, tri-

al court did not improperly charge jury by
naming Sttte's contentions in rneference to
its burden ol proof where trial court did not

4OT SOUTHERN REPORTER, 2d SERIES

recapitulate evidence for State at expense
of defendant nor comment on effect of evi-
dence or r.efer to what had or had not been
proved.

Solomon S. Seay, Jr., of Gray, Seay &
Langford, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Jean
Williams Brown, Asst. Atty. Cren., for ap
pellee.

DeCARLO, Judge.

The grand jury of Pickens County indict
ed the appellant and charged her in a three-
count indictment with voting more than
once, or depositing mor€ than one absent€e
ballot for the same office as her vote, or
casting illegal or fraudulent absentee bal-
lots.

The indictment in this case, omitting the
formal parts, reads as follows:

"The Grand Jury of said County charge
that, before the finding of this Indict-
ment, Julia R. Wilder, whose name to the
Grand Jury is otherwise unknown:

..COUNT ONE

"did vote more than once, or did deposit
morc than one ballot for the same office
as her vote, or did vote illegally or fraud-
ulently, in the Democratic Primary Run-
off Election of September 26, 1978,

..COUNT TWO

"did vote more than once as an abeentee
voter, or did deposit more than one abeen-
tee ballot for the same office or offices as
her vote, or did cast illegal or fraudulent
absentee ballots, in the Democratic Pri-
marry Run-off Election of September 26,
l9?8,

..COUNT THREE

"did cast illegal or fraudulent absentee
ballots in the Democratic Primary Run-
off Election of September 26, 1948, in
that she did deposit with the Pickens
County Cincuit Clerk, absentee ballots
which were fraudulent and which she

knew to be fraudulen
and dignitY of the S

After a two'daY trir

May 31, 19?9, the a1

guilty as eharged in

sent€nced to five Years
gave notice of aPPeal at

a new trial. The moti'

denied when no tcatim<

made on behalf of the

The evidence Pnesenr

stantiallY as follows:

Mr. Paul Rollins' a

Tuscaloooa, was called

witness. Several daYt

cratic PrimarY Run'of:

ber 28, 19?8 (hereina

tion") the aPPellant ar

en came to Mr. Rolliru
him with a numhr of
notarizd. The aPPoi

lins had been Pr=viou
gie Bozeman. Mr' Rt

September 23, 19?8, h

tures of individuale o
ballotE. Although th
signed in hir Prcsenct
them based uPon the

tion to him that the '
Senuine. Mr. Rollinr

not PersonallY acqut
individuals.

Mr. Rollins stst€(
that he told the a

notarize the ballotr
signed them werc Pr
agreed to go ahead
if the appellant wou

vidualr and let the

they had signed ttrc

quentlY went to Pic
penon Ewone an oal
own balloL Thert
Maggie Bozemln'r
homes in Pickenr (

quired no identific
for the oathr.

On redirect exat
tified he could no
virited Pickenr Co
turca.

i
I
t



i--
{I
'|

I
t.

t

.-"Yl'3'.1;,f,1#,,, 
153

knew to be fraudulent, against the peace Ms. Janiep Tilley, a court clerk in the

and dignity of the il1:1;';;il;;.; Pi;;;;;";rty clerk's.office' testified that

Artcr a twoday ta"i *r,i.r, ended on *i*X*"'f*ffJ.lTli#"i:HI
Miv 

*el,-rszr, 
,F,_"1f",till,Jff".l":ll i;-;;. must riu out an apprication rorm'

nriltY as charged tn

sentenced to rive r"',"'ilirn'ln;;;! ;I: [[;'J]n'f .:-"HIilil]:;'#I
*h::r:*n*:l ',l'SffIx::# ;'*";;; *gistered votcr Ir the appri'

denied when no t*f i.'onv or arsument was m,t;'"X**:f";:T"::[tHHHtfr
."a" on behalf of the motion'

rhe evidence presented at triar was sub [;*]HJ*#T Jff:#il1i"$!
.*"ti"ilv as foll'ows: ;;;;; *i"* rt is placed in a locked absen-

Mr. Paul Rollins, a notary public from ;;;- in the circuit clerk's vault'

**:rtn,11* ft ry,iff"#,, H :;1fl ,n'i[*i,1 tr ;E1ilG
;1,,t:"ffe,lJffii:i:::ffi!f'ffI. ;;il;;' the week prior to the Bun-orr

tion")theappellant"nJ'"'""totherwom-nf""tiontopickup'aoolicationsforabsen-
en qame to Mr. Rollin:I#;il-nr"."ng ;;;iiJ.' r'rt' til"' told the appellant

him with a number "i#;;;;ir"t" 
tiry t*-"ppli*,i-ons f3r atsentce voting could

notarized. tt" "pp"i,iiri";;il 
Mr.-Rol- ""i-u""'pi"r"a 

up during the last five davs

lins had been previously arranged.OL Y"l: ;;; ;t election' In this case' the last

gie Bozrman. fvf, notfin, testi-ifiea ihtt on i"v f"t obtaining applicationc was Septem-

September 23, 19?8, i"'""*'i*a the signa- ;l ;: ffi: o; Spt"tutt 25' 1fi8' the

rures of individuals ", ilj*v-rrre absentee "iJuji ^"Id.lol.tore 
applicationa and

ballots. Although ;;;;ii;; had not been Ji- ,"ru."a. At this time the appellant

signed in his presen*l ilt' ttiitt ""*a'"a and Minnie Dunn-er Hilt turned in to the

them based upon the appellant,s represen::: .i*ril'"i"*'s office, approximately fifty

tion to him that ttt" 'ott"t' 
signatures were absentee ballots'

genuine' Mr' Rollins'tJtiri"i tttut h"-Y'I Ms' Tilley notiecd that all the completed

not personalr, ""qu*rit'ni,t, 
.nv of the 

"o;i";;;;: 
fo. .tb."nt* 

ballots that had

individuals. been previously turned in by the appellant

Mr' Rollins stated on cross-examination ;;il one-of-'the following addresses:

that he told the Jop"ir*i t" cou_ld n3t ;;; t Box Pi|18. Ca*ollton, Alabama;

notarize tte uattott"Ptfit"lt'tt'" pt"pr" *tt" ii' t-*n'n'"nue Northwest' Aliecville' Ala'

signed them were rl#;' lit' n4riry 1t"." ;;;; "t 
601 10th Avenue Northwest' Al-

agreed to go ahead ffi'il;; the ballots rceriti", Alabama. Ms. Tilley thought thia

if the appellatt *""iui'it""Tii-t iltt inai- ffiffi "Jit'gtn 
it to the attention of

viduals and let 
'n"ti* 

il"tt- an oath that ;;;;;;lerk'-Mr' Flovd' who- i'n turn

they had signed *;il;- Rollins tubtt- ;;;"*d District Attorney Pep Johnston'

qr"'",rv *"i to Pickens crcunty wherc each rmination' Ms' Tilley tes-

penpn swone 8n 
""',il 

il;;'i'J'is""d hi' 
., r'# lf,"t-rff I "il' ;-;;ir"."ni. *'*

il:;T'h j:tfr""S:,;"*n:"J;:Hil'ft i"."u*-*;"i":,T"ll"ifl
rom", in pi"r,"n'co'Jnlvl-ttrr' nottin' 'e- llr[ *"J:ffi;;;;;'"' addrcsse&

ori*d io identification of the individut 
The appellant made no reprrcsentation to

for the oatha. .r Ms. Tilley ttrat anyif the ballots she turned

on redirect examination, Mr' Rollins tes- ii tt"* i"t_o*n: 
dl^i, r^,,io colehsn

l.['n ';:;:l: U:.ffi1H'f;'ff#: k;y** :*:LTift ?ii".,
ture!.



Mr. Charles Tate testified that he was
assigned to investigate alleged discrepan-
cies in absentee voting for the Run-off
Election. Investigator Tate examined the
contents of the absentee ballot box brought
to the district attorney,s offiee by the sher_
iff. He testified that the ballot box con-
tained three sets of ballots; accepted bal-
lots; rejected ballots; and challenged bal-
lots. He checked only the accepted ballots.

Investigator Tate stated that he matched
the absentee ballots to the applications for
absentee ballots. His examination re-
vealed: "Quite a few of the absentee bal_
lots werc notarized by the same notary pub.
lic; some of the applieations for the absen-
tee ballots wer.e maybe signed with an X, as
an example, yet the ballot itself had been
signed with a legible signature or vice ver-
sa." Many of the ballots were mailed to
the same addrcsses; and all the ballots
were voted the same. Mr. Tate's investiga-
tion also revealed that the appellant,s ad-
dress was one of the three most frequently
used on the ballots. At the conclusion of
Tate's examination, the ballots were placed
back in the ballot box, double locked, and
neturned to the sheriff.

Eighty-seven-year-old Robert Goines tes-
tified that he was a registered voter in
Pickens County. He said that he applied
for an abeentee ballot and made his mark
(X) on the application. The applicatiorl.was
witnessed by the appellant. Mr. Goines was
shown an absentee ballot containing his sig-
nature in curcive writing. Mr. Goines st8t-
ed he had seen the ballot but he did not fill
it in or sign it because he could not write.
He also stated that he did not give anyone

4OT SOUTHERN REPORTE& 2d SERIES

Annie Billups stated that she was a regis_
tered voter in Pickens County and voted in
the Runoff Election. Ms. Billups made an
"X" on an absentee ballot application
brought to her by the appellant. The ap
pellant filled out the ballot for Ms. Billups
because she could not read or write. M..
Billups told the appellant to sign her (Ms.
Billups') name to the ballot. She testified
that the appellant was a friend of herrs.

Seventy-two-year-old Mattie Gipson testi_
fied that she was a registered voter in
Pickens County and that she voted in the
Run-off Election. On direct examination
Ms. Gipson testified that she placed her
ballot in the ballot box at the National
Guard Armory polling placc in Aliceville,
but her testimony on cross-€xamination in-
dicated that she voted by absentee ballol

Ms. Gipson said that she made her ,,crpss

mark" on an application for an absentee
ballot that was witnessed by her ,,step
daughter in-law," Minnie Mae Dunner. She
testified she did this at the National Guard
Armory.

Ms. Gipson was shown her absentee ballot
and could not find where she made an ,,X,'
on the document. The ballot contained her
signaturc in cursive writing. She testified
that she could not "write at all." She also
stated that she did not know paul Rollins.

During cruss-examination, Ms. Gipson
testified that several ladies c8me to her
house prior to the election. She authorized
these ladies to assist her in voting.

Sophia Spann, a seventy-nine.year-old
registered voter in Pickens County, statcd
that she did not know what an absentee
ballot was. She said she had never voted

Itt Ala.

the Bun-off Election has been in his custody permission to vote for him and he did not
since the Run-off Election. pursuant to the vote the absentee ballot.
court order, Sheriff Coleman delivered the
absentee ballot box to pistrict Auoraey ,*3"n"jr"T"';iilrTil"11; rff._ffi,:Johnston on October 10, 1g?8. Sheriff Cole-
man unlocked the ballot box and Mr. John- 

cros{r. He admitted that he did not know

ston examined the contents. District Attor- 
what an abeentee ballot was' He did re-

ney Investigator Charles Tate was also 
member two ladies coming to his house one

present during this examination. After the 
time and later returning with a m8n' He

examination, the sheriff re-locked the ballot 
told the man that his mark was on a piece

box and the district "ft";;;;"ffiffi; ::,riffi,Til"H; ff,ff.,ified.that 
he did

padlock to the box.

by absentee ballot
the polling place

Ms. Spann furt
not know the a

tslked to the app
ing. An applicr
Spann containinl
signed with sn "
appellant. She d
the application ar
own writing. Ms
ballot and pointe
misspelled.l Dur
following o@urne

'Q. And it sa;

not spelled $p
"A. See, I sp

"Q. Okay.

'A. And Mrls.
paper. I told
spell it.

"Q. Who mal
You cannot r.er

"A. I do my
rcading. Whal
can read and c

'Q. You coult
"A. I have t
ever since I wa
cating).
"Q. Oh.

'A. My man
All of them co

Ms. Spann alv
know Paul Rollir
gie Bozeman an<
her. Mn. Bozel
Ms. Spann had 'raid nothing.

Ms. Spann tes
to the polling pk
the election offi
rcady been recor
She told the ele
not authorized a
that her name or
Mr. Spann was I
pollr.

l. ScG attached a



.""T',3:,X,:T*:,,, 
Ara' 155

byabsenteeballotandhadalwaysvotedatEighty.seven.year.oldNatDancytesti.
thepollingplaceinCochran.fiedthathewasnotregisteredtovotein

Ms. Spann further testified that she did Pickens County' but that he had voted in

not know the appellant and had never the past' He testified that he could not

tslked to the appellant about abs€ntee vot' r€ad or write and that he signed his name

ing. An application was shown to M* with a mark' He said that he knew the

Spann containing her misspelled nsme' appellant, and that she witnessed his mark

signed with an "X," and witnessed by the on- a document that was not identified by

appellant. She denied iarking an "i" on the State' Mr' Dancy t€stified that the

the application and stated thafshe did her appellant explained nothing to him about

own writing. Ms. Spann was also shown a tt e docum"nt he signed, and "she stopped

ballot and pointed out that her name was me from talking and said just make a mark

misspelled.t Duringcross-examination,the thetr.''
following occurred:

'Q. And it saYs SoPhia SPann, but it is

not spelled $Pa-i-n?
"A. See, I sPell it $Pa'n-n, two N's'

'Q. Okay.

'A. And Mrs. Charlene showed me that
paper. I told her that ain't the way I
spell it.

"Q. Who makes out Your ballot then?

You cannot read and write?

"A. I do mY own writing and mY own

reading. What are you talking about? I
can read and write, sir.

'Q. You could read and write?

'A. I have been reading and writing
ever since I was something like that (indi-

cating).
"Q. Oh.

'A. My mama raised seven children'
All of them could read and write."

Ms. Spann also testified that she did not
know Paul Rollins. She recalled that Mag'
gie Bozeman and an unknown male visited
her. Mrs. Bozeman wantBd to find out if
Ms. Spann had voted that day. The male

said nothing.

Ms. Spann testified that when she went
to the polling place to vote she was told by
the election oifi"i"t. that her vtitp naa at-
ready been record d on the absentee balloL
She told the election official that she had
not authorized anyone to vote for her, and
that her name on the ballot was misspelled.
Mr. Spann was then allowed to vote at the
pollr.

l. Sec attached app€ndix.

Mr. Dancy testified that he did not make

his mark on an absentee ballot purported to

be his and he could not find his signature

mark on the ballot. The ballot marked in

evidence as State's Exhibit No' 8 shows a

signature for Mr. Dancy in curcive w-1i-ting'

Iti. Oancy further testified that he did not

know Paul Rollins and that no one had ever

asked him if he had signed a "piece of

paper."

During cross'examination, Mr' Dancy tes-

tified that the appellant came to his house

with some papers about voting and, "If she

told me to sign it, I signed it.'' He also

testified that the appellant later came back

to see him with a man.

Mamie Lavender testified that she was a

registered voter in Pickens County and vot-

"J 
in ttt" Run'off Election' She said the

appellant came to see her about voting'

The appellant "brung a paper around to our

hous"ri and asked Ms. Lavender to sign it'
Ms. l,avender could not write but she au-

thorized Shirley Clark, who was with the

appellant, to sign for her' In addition' Ms'

lliender recalled making an "X" on the

p8per. She testified that no gentleman

"r". 
*." to her house to ask whether her

mark was on the documenL

On clpss'€xamination, Ms' Lavender tes-

tified that a ballot came to her in the mail

and she authorized the appellant to turn the

ballot in for her. Ms. Lavender told the

appellant she wanted to vote for the Demo-

crats.



156 Ala. 4OI SOUTHERN REFORTE& 2d SERIES

Lewis Minor stated that he was a regir
tered voter in Pickens County. He testified
that he voted in the general election but did

not think he voted in the Run'off Election.

Mr. Minor testified that the appellant

"fix[ed]" an absentee application for him.

He could not read or write and he made an

"X" on the application. He testified that
he saw the appellant on the streets of Alice-
ville before the Run-off Election, and told
her he would be out of town on election

day. She told him she would arrange it so

he could vote.

Mr. Minor said that he had never s€en

State's Exhibit No. 25, purporting to be his

absentee ballot. But, he did tell appellant
she could vote for him. He did not make

the "little marks" on the ballot. The ballot
was signed in cursive writing' He also

testified he did not know Paul Rollins.

On cross-examination, Mr. Minor stated

that the appellant helped him in voting and

that she showed him a paper to sign and he

"touched the pen when they made the
mark."

Mrs. Lucille Harris testified that the ap
pellant brought a paper for her to sign so

she would not have to go to the polls to vote

in the Run-off Election. She stated that
the appellant visited her only one time and

she never r.eceived a ballot in the mail. She

never signed a ballot before 8 notary public.

On crcss+xamination, Mrs. Harris stat€d
that she agreed with the appellant to votc

for the Democrats before she signed the
paper.

Bessie Billups testified that she was 8
registered voter in Pickens County and that
she applied to vote absentee at the prompt'
ing of the appellant. She testified that she

could not read or write. Ms. Billups signed

an "X" on an absentee ballot applicatt'on,

State's Exhibit No. 4?, witnessed by the

appellant.

Ms. Billupo was shown an absentee ballot,
State's Exhibit No. 2. She statcd that she

made the "X's" otl the ballot, but did not
sign her nsme at the bottom. She also

tetified that she did not know Paul Rollins.

On cross+xamination, Ms. Billupo said

that the appellant had come to her house to
tslk to her about voting, but she did not

rcmember how many times. She testified
that she was at her sister's house when she

made the "X's" on the ballot, and then gave

the ballot to the appellant.

On redirect examination, the State aL
tempted to refresh the rccollection of Ma.

Billupo by showing her a statement she

made on October 8, approximately two
weeks after the election. Ms. Billupo then

testified that she did not authorize anyone

to fill out her ballot and did not mark a

ballot herself. She testified thet the signa-

ture of the ballot was not hers.

On recross-examination, Ms. Billupo again
stated that she made the "X's" on the docu'

ment and turned it over to the appellant.

Seventy-seven-year-old Fronnie B- Rice

testified that she voted an absent€e ballot
in the Run-off Election. The appellant and

a man br.ought an application to her; she

signed it, and gave it back to the appellant.
Later, the appellant brought the ballot to
her. Ms. Rice voted on the ballot, signed it,
and gave it to the appellant who notarized
it. Ms. Riee testified that no man ever
contacted her about her voting. After hav-
ing her recollection rcfreshed, Ms. Rice tcs-

tified that she neither received a ballot nor

did she sign one.

On cross-examination, Ms. Rice t€stified
that the appellant came to her house and

she remember.ed making some "X's." She

testified that a man came with the appel-

lant and she told them that it was her ballot
and she made the "X's" on the ballot.

Eighty-year-old Clemie li'ells testified
that she was a registercd voter in Pickeng

County. She made an application to vote

absentee in the Runoff Election and signed

her application. She testified that Mattie
L,ou Grice was with her when she filled out
the application.

Ms. Wells t€stified that she had never
seen State's Exhibit No. 38, purporting to
be her ballot. She did not know anything
about it and never received anything like it
in the mail. She did not "think" she signed

the ballot- She also

know Paul Rollins'

On cross'examinatic
remember making at

ment.

SeventY'four-Year-o
tified that she was

Pickens CrcuntY. She

hibit No. 61 as her aP

tee ballot which she

19?8. Ms. Deloach t

hibit No. 11' PurPor
with her signaturc al

tified that she had nc

such a documenL
that she did not vot

tion and that no n

house to ask if she

ment.

On clus+xaminal
fied that the aPPella

ballot application to
lant told Ms. Delot
lant) could "sign tl
paper for me." M

she had no objectit
cause she did not
about. She remem
coming to her hour

anything for ther

Charles Cunninl
was registerned to
but that he was no

September, 1YIS

rcad or write and
w8s. He t€stifi
brought him Statr
plication for abcet
his mark on iL
that he was undt
was filling out a
dqr refercndum.

Mr. Cunninghar
lant brought him
pellant to fill it o
the ballol lle t

rign the bsllot fr
The attorneyr

th8t the testimor
tham would be



.""T-^-X1;.ff#"' 
Ara' t67

the ballot. She also t€stified she did not 'ign"a 
the application for an absentee bal-

r.no* p"ur Ro,ins. 
*""* 

::: :- 
-^ 

',*F;y-nffJ*t'"I",T:" ;o;ff':l:
On cross-examination, Ms. Wells did- not ir*i"", ,tt.t s:he does not remember seeing

,".".U"" making any "X's" on a docu- ifr"t"jirt",all." Theyalsostipulatcd.that

ment' ii,r" tig""** on the ballot was not hers'

Seventy-four-year-old Lula Deloach tes- 
The State recalled Paul C. Rollins as its

tified th;t she was a registered vot3r-in r*i"*itr"*. Mr. Rollins testified that he

n'i"t "* C"rnty. She identified State's Ex- *". *nfr..a during his earlier testimony

iiuit No.61 agher application for an absen- ;;;;;" he notarized the absentee bal-

*'i.fi"a which she signed in tph.t*t, ;;-i" question. He testified that there

igfa. Mr. Deloach was shown Stat€'s Ex- ;;"';*; sets of ballots that he notarized'

iiuit No. 11, purportins to be her- ballot ii"ii..r.", was prior to the Septcmber-5th

,ritt t", signaiure at the bottom. She tes- ;.td election.- During this time, Mrs'

tified that tt'" lua never filled out or signed ["*,,,i", t*o other ladies' and the appel-

.r.n " 
document. She further testified ;;;;; to his office in Tuscaloosa and he

that she did not vote in the Run-off Elec- ;;;;;J some ballots' The second time

tion and that no man ever came to her ;';;;; 
-to 

ttt" September- 26th nrn-off

houre to ask if she had filled out a docu- election. The appellant and two women

ment. L." * tti. office to have some more ballots

on crcg-examination' Ms' Deloach testi- *Ll*a' Mr' Rollins did not notarize the

fied that the appellant brought an absentee ;;11"" in his office at this time' but agreed

ballot application to ;";'#; The appel- ;;;;t Pickens c'ountv to have the individ-

lant told Ms. Deloaciii"itrt" (the appel- 
'"i 'ot""t 

acknowledge their signatures'

lant) could,,.ign tt" pli-r" 
"na 

"fi*-:rt: He stated that he did not remember the

paper for me"' rutl i"i""r' stated that 
"-"* 

a"*t when he went to Pickens coun'

she had no objection * tiit pt*"dure be- tv' u" that it was at two different times'

cause she did not know what it was all 
"'*" 

Lrtt" the election' and once the day

about' She remembered a lady and a man ii trt" "r""tion' 
Mr' Rollins stat€d that he

coming to her house, but she did *t :iry iia-'""i p*aate the ballots' but notarized

anything for them 
'i- ma'tt any ballot' ;;d ;"d them the same day' The district

Charles Cunningham testified that he ;;;;"y pointed' out tp Mr' Rollins that all

was rnegistered to ,.Jt"- in Pickens county ii" L"ri"" in evidcnce were dated septem-

but that he was not qualified to vote in the uut zg' 19?8' which was a Saturday'

September, 1g?g ";1i;;- 
He could nor The State rested its case at this point'

read or write and did not know how old he The appellant moved to exclude the evi-

w8!1. He tcstified that the appellant dence listing several grounds' the princip-al

brrught him State,s Exhibit No.46, an aF oi-r"ti"t, Jas failure to prove the case'

plieation for absentee voting, and he made .trt", ,t " 
trial court denied the motion the

hir mark on it. Mr. Cunningham stated defense began its case in chief'

that he *"" und"'"'th"-in,p*ii"" that he The appellant took the witness stand in

war filling o't " ro't- t" '"*' 
in the wet- r'"' o..'"-u"n"rr' She testified that she had

dry refercndum. ' i itr"d i; Pickens County all her.life and that

Mr. Cunningham testified that the appel- ;;il been politically active in the county

lant brought him a ballou he told tt'" "p 
;;t;;;;it| Mts il"gg'" Bozeman-and

pellant to fill it out and he put his mark Jn Mrs. Minnie Dunner Hill' The appellant

the ballot. He then told the appeltant to *as' ,ctir"ty involved in aiding people to

rign the ballot for him. ;; il autentct ballot for the Democratic

The attorneys for both sides stipulated ;;;; and the-run'off election of 19?8'

that the testimony of witness Maudine f.]al The appellant's testimony established

them would be .to the effect that stre that she ircquently picked up applications



158 Ala.

for absentee ballots at the cirruit clerk,s
office. The cir.cuit clerk's office would at-
low her to pickup only ten to twenty appli-
cations at a time. The appellant would
then distribute the applications to her work-
ers who would, in turn, take them to people
who could not go to the polls or people who
would be out of town on election day.

The appellant testified that the following
colloquy with a potential voter would occur
once she found a pernon who was qualified
to vote abs€ntee:

"I would go to that person,s home and
talk with them and ask them-I didn't
visit nobody except registered voter.s be-
cause that's what it was about. And I
would get in there and say, ,Do you want
to vote this year?'

"'What kind of election is this?, I would
say,'well, it's the Democratic.' And they
would say, 'That's the way I want to
vote.'

"You reckon you will be able to be at the
polls?

"They would say, 'No. You know I can't
get around.'

"And I said,'IYell, would you like for me
to show you how you can vote without
getting down there?'

"'Yeah.'
"And I would sit down and tell them that
once you fill this form out and let me
mail it back to the Circuit Clerk's office
or take it back, I said, and they will mail
you out a ballot. And most of the time,
'\ilould you like for the ballot to come to
you?'

"And they would answer no, that they
wercn't able to, you know, get it back to
me or nobody else, and they would say,

"W'ould you like for me to-What woirld
you like for me to de-let it come to my
box, or how would you want it done?

"'L€t it come to your box.'
"I said, 'Okay. I will do that, and when
it comes, then I will get it back to you-
let you decide which way you want to
vote."'

4OI SOUTHERN REFORTE& 2d SERIES

The appellant stated that she never had
the absent€e ballot mailed to her addrcss
unless she was instructed to do so by the
applicant. For applicants whos€ ballots
were mailed to their homes, the appellant
would go to their homes and discuss with
them how they desired to vote. The appel-
lant would take with her, on these visits, a
sample ballot endors"d by the Alabama
Democratic Confernence. The sample ballot
indicated the Alabama Democratic Confer-
ence's preferene€s. The appellant statcd
that she did not mark any ballots contrary
to the instructions of the abs€ntee voters.

The appellant was then questioned con-
cerning the testimony of Sophia Spann.
The appellant stated that she took an appli-
cation to Ms. Spann's house but Ms. Spann
was not home. The application was left at
Ms. Spann's home with an unidentified fe-
male. The appellant had no further contact
with Ms. Spann. She did see Ms. Spann's
ballot after it was returned to .,headquar-

ters" by one of the appellant's workers.

The appellant stat€d that, after the bal-
lots were marked, the next step was to get
them notarized. After this was done, an
unidentified man working with the Howell
Heflin campaign took them to the court-
house. The appellant said that at no time
did she deliver any ballots to the circuit
clerk's office.

The appellant testified that she visited
Mr. Rollins in Tuscaloosa on two occasions.
The first time she and Maggie Bozeman
asked Mr. Rollins to notarize some ballots in
connection with the primary election. The
second visit was in connection with the
Run-off Election. She was accompanied by
Lucy Lockett and Mrs. Minnie Dunner Hill
on this visit.

The appellant testified that Mr. Rollins
came to Pickens County in connection with
either the Run-off Election or the General
Election. She testified that she and Mr.
Rollins went firm house to house to have
ballots notarized.

The appellant stated that she signed some
of the names to the absentee ballots intro-

duced into evidence
some of the worken
done with the pern
voters. The people
to the pen." There

The defense recal
witness stand. Ms

specific application
concernd in this c
the cirrcuit clerk's oI
tee ballots matchi
above five applical
mitted evidence sh,

those ballots wene a

The defense rest

The prusecution i
to S U-23-1, Code
provides, in pertine

"Any person who
any election held
more than one br

as his vote at suc

attempts to vote
to do so, or is gltt
or fraudulent vol
be imprisoned in
less than two nor
the discretion ol
added.l

The appellant u
supra, is constituti
cause it is "vagur
tain." Specificall:
only portion of the
that dealing with "
ing," and she cor
must fall because
constitutes illegal r

This court, in C,l

App., 864 So.2d 4
So.zd 420 (1978), r

ples involved in
statute is unconsl
nesr. There the q

" The essential
vaguenesr, doctr
of the criminal c

2. The State inttrdu
lotr and thtny-nln



d
llE

re
tE

nt
rh
)l-
a

l8
ot
)r-
ed

ry
NL

rll-

ln.
)li-
nn
at
fe.
rct
nts

Br-
Il!.

,al-

ret
an
/ell
rrt-
me
ruit

ted
ns.

1an

sin
Ihe
the
by

t{ill

.XH:};il#,,' 
Ara' 15e

duced into evidence in this case'2 and that 
' 

au"i' Witliams v' Unitd St8tes' 34f U'S'

some of the workers tig:nJ some names' all 
"' " 

S'Ct' 5?6' 95 L'Ed' ??4' decided

done with tt," p""mi'"i5oJ""I;; i'ii'u'"r April 23' 1?11'^l:*' v' Unitd St'ates'

voters. The people *t'ri't'"rt their hand tifi' t'5 u's' 91' 103-1(N' 65 s'ct 1081'

to the pen." ruere wls n" itt'a involved' 1m6: 89 L'Ed' 1491' This court has te'

ThedefenserecalledJaniceTilleytothepeatedlystat€dthstcriminalstatutcs
witness stand. Ms. Tilley identified five lii"rt itil to give due notice that an act

specific applications ior-iu.".* ballots ir" u""n made criminal before it is done

concemed in this ""*. 
- 
si" testified that .* on"on"titutional deprivations of due

the cirrcuit clerk,s otti"" ,"""ir"a five absen- 0."** of. law-, ly7tta v' state of New

tee ballots matching ii"- n"-". on the ;"r.*y,1939,306.u.:. 451, 59 S'Ct' 618' 8l!

above five applications." d; defense ad- i.ij. 'a8st unitd statns v' L' cohen

mitted evidence tr'o*iig 'i"i "1rv-tY "r 
-ci"'v c'o'' rg2:,'' 255 u's' 81' 41 s'ct'

those ballots were actuaiiy in the ballot box' 298, 65 L'tr'd' 516'

The defense rested its case' "We have several times held that difficul'

ty in determining whether certain mar'

I ginal offenses are within the meaning of

The prosecution in this case was pursuanJ ;;;1""-t" under attack as vague does

to S 1?-23-1, c"a" 'i'ir"u"ia 
rgis' *t'ict' not automatically render a statute uncon'

provides, in pertinent'p"*' "t 
follows: tiiitti""a for indefiniteness' Unitd

"Any person o'ho *L' more than once at ;fu v' wunback' 1930' i,'0 u's' 396'

any election h"ld i;;;it-tL*' ot deposits 
'gs' 

io s'ct' 16?' 168' ?4 L'Ed' 508' Im-

morne than or," u"irot io, ii"'."." orri"" po..iur" standards of specificity are not

as his vote "t 
tu"t'ii""iion' o' knowinglv ;;;fu' unitd^stat.s v' Petrillo' 1947'

attempts to vote ;;;;;'it "ot 
entitlei ilt"s' 1' 6? s'ct' 1538' el L'Bl 18?7'

to do so, or is guilty of any kind of i.ttegat The test is whether the language convey$

or fraudulent voting;must' on convlctlon' *rii"i"ntry definite warning as to the

be imprisoned i" ii? p".it"ntiary for not pr"*rfU.i conduct when measured by

less than two nor;;t'"i;t" five years' at L,,'ton understanding and practices'

the discretion of ii" ;ory." [imphasis A,rnrtty n. General Construction Co,

added.l 1116, ,6', u's' 385' 46 s'ct' 126' ?0 L'Ed'

The appellant contcnds that s L1-?f.-r, in:i [Quoting Jordan v' DeGarge, S4l

supre, is constitutioffi it['*ittiur" uu- u's' r;; 2:w?fl1' ?1 s'ct' ?03' 7(n-?08'

eause it is "vague, iniefinite and uncer- 95 L'Ed' 8s6 (1951)'

tain." Specifically, she asserts tfaf tn3 
The court went on to observe:

only portiron of the statut€ relevant to her ts ,,Vac.ueness challenges to statutcs which

that iealing with "illegal or fraudulent vot- 
," 

-i", ' 
i*"tve First Amendment frce-

ffl; ilil;X,:''f:L'[l .'[.:Hn ;F.;$:,ue-examined in the right or

constitutes illegal or fraudulent voting' 
rv 

the facts of the case at hand' u' S' v'

rhis court, in chamben v' st'atc'Ala'cr' i;;:iN,.Y;*,t';'f,l;*;ii;1:
App.,36{ So.2d 416, cert' den" A1a".364 ,:r.,,.-ott i.l'S. SA, 95 S'Ct' 11O' 42

So.)i lzo (19?8), noted the general princi' 
l.sd.?A?06 (19?5)"'

:H"Y**J:'r1",fiTil':1"1"'ff# ;;' opinion' the words ',regar or

nesa.Thercthecout\stated:fraudulent''asusedinthefor.egoingstatute
,. The essential purpose of the 'void for ir" mer"ly descriptive of the intent neces-

vsguenesE, doctrine is to warn individuals sary for the commission of the offense' see

o( the criminal consequences of their co-n-- n "C"l'S' Elections S 341' a (1965):

2. The State introduced thirty-nine 3legnlee bal'

lots and thirty-nine applications in this cas€'

lins
,,ith
eral
Mr.
tSVe

0me
,trc-

l1 r;,l l.
<)6
a^r' :2



f60 Ala. 4OT SOUTHERN REPORTER. 2d SERIES

sor courts tq guide us in determining that
the legislature intended to prohibit voting
morc than once. Furthermore, even if, as
appellant contends, the phrase .,illegal or
fraudulent voting" is subject to difiering
interpretations, we m8y rnely on the rcmain_
der of the statute to provide a clear state-
ment of what onduct is proscribed. Asso-
ciatd Industries of Alabama, Inc. v. Brit-
ton, supra. ln Assrcrc,iatrd Industa.es, supra,
the Alabama Suprneme Court observed that:

"[e]ven if the description . .. is not free
fium ambiguity, that does not render the
terms of the Act ineapable of enforce-
ment when a reasonable intcrpretation is
available."

tzl We believe that a reasonable- inter-
pretation of the predecessor to S l?_2g_1,
supra has aheady been provided for us by
the courts in Wilson, supra, and @rdoi,
supra. Therefore, applying the principles
of those cas€s, as well as the tests outlined
in Chamberc v. State, supra, to the statuter
and the facts of the case before us, we do
not believe that g l?.-28-1, supra, is uncon_'
stitutionally vague. When measured by
common understanding and practice, and a
long-accepted determination of legislative
intent, it provides clear notice of what con_
duct is prohibited. See Aaderson v. lJnitcd
States,4lT U.S. 2ll, m n.18, 94 S.Ct. ntig,
?264 n.t},4r L.Ed.2d 20 (r9?4).

II
Appellant insists that the indictme * in I u ,-

this esse was so vague, uncertain and indef- I -.-r -r-d
inite that it failed to charge an offense or I 'o.?- /_nt
to inform her of the nature and cause of the / u- ( t- ' - ti 

, -accusationsagainsther._:----.-,.'.:.-n-,>
t31 The general rule in Alabama is that '', 

- 4 i
it is sufficient to charge the etements of the -.,- 'i
statutory offense in the words of the stat- .tt 4ute. Gayden v. Stz,te,XiL Ala.46g, g0 So.Zd € ...

501 (re55).

The only qualification to this rule is that
the indictment must apprise the accused
with r.easonable certainty of the natut€ of
the accusation against him, so that he may r
prrpsie his defense and plead the judgment
of conviction as a bar to 8ny subsequent

.l,.
,l

I

" De.sciption of intcnL With respect to
words descriptive of intent such as ,will-
fully,' 'knowingly,' and ,illegally' or ,un-
lawfully,'etc., it would generally be suffi-
cient to follow the words of the statute.
The words of the statute, however, should
be included in the indictment.',

_ln Wilson v. State,52 Ala. 299 (18?E), the
Supreme Court of Alabama observed:

"The offence denounced by the statute,
and intended to be described in the indict-
ment, is voting more than once. An in-
dictment for a statutory offence is gener-
ally sufficient, when it is framed in or
pumues the words of the statute."
Clearly, the language of the statute re-

flects a @mmon understanding that ,,illegal
or fraudulent voting" is voting more than
one ballot for the same office, or attempt-
ing to vote when one is not entitled to to
so. The statute thus gives due notice of the
criminal consequences of such action.

tU Over one-hundred years ago, our Su-
preme Court determined that the legislative
intent of the statute was to proscribe dupli-
cate voting. Gordon v. State, E2 Ala. B0g
(1875); Wilson r,. Slate, supra. We should
exercise our power-to_deelare a. legislative
enactment void for indefiniteness only in
the most extreme cirrumstances. Assrx:iat-
d Industries of Alabama, Inc. v. Britton,
f_Ia., 3?l So.zd 904 (f9?9); Jan*n v. Statr,,
Zl3 Ala. 166, lB? So.2d 4? (1962).

In Jansdn v. State, supra, the Alabama
Supreme Court set out the following guide-
lines for the elerneise of this po*u.i -

"To be sure, courts may declare legisla-
tive enactments to be inoperative and
void for indefiniteness or uncertainty in
meaning. But such power should bq ex-
ercised only when 8 ststute is so ineom-
plete, so irreconcilably conflicting, or so
vagre or indefinite that it cannot be-exe_
cuted, and the court is unable, by the
application of known and accepted rules
of construction, to determine, with any
reasonable degree of certainty, what thl
legislature intcnded.,,

For the st8tute in question, we have the
certainty provided by the Gordon and Wit-

lprosecution for tl
Sasceg v. Sirnmons
(1877).

ln Gayden v. S

Supr.eme Court s
ments for a prc
tracking the wor
court said that, a

the statute may I

scription of the ot
panied by the far
forming the accus
setting forth witl
place, and cincur--fr 

C,ordon v. S
Court of Alabama
general accusatior
not sufficient to
allegation of "ille
fied in what the il
er it was a want
voting mor.e than

tl] Our examir
the indictment wt
the foregoing par
indictment followe
ute. It is a plain,
ten statcment of ,

tuting the offens€
also sufficiently ir
the particulars of
could prcpare her

A sufficient ind
illegal voting:

"[m]ust ordinari
lied on to const
lege that the e
fense was comn
to law, and musl
the intent with
mitted." 29 c.J
A r=view of the

up the indictmen
?ollowing:

Count one made
rhe did iltegaily
voting morc than
than one ballot as
ic Primary Run0
2E, lg?8- 

'



WILDER v. STATE
CltG !s, AIr-C.'APD.' /Ol So.2d llf

Ala. 161

\prcsecution for the same offense . united count two informed the appellant that

stttcs v. simmons,go u.s. 3ffi,2A L.Ed. g1g she did cast illegal or fraudulent absentee

(18??). ballots by voting more than one abeentee

ln Gayden v. Statc,supra, the Alabama ballot or by depositing morc than one ab-

SupremeCourtsetforthcertainrequire-senteeballotashervoteintheDemocratic
mentsforaproperlydrawnindictmentPrimaryRun-offelectionofsbptember26'
lo"ting the words of tl" statute' The 1978'

*r.t .iia that, although the language of Count three notified the appellant that

the statute may be used as a general de' she did cast illegal or fraudulent abe€nt€e

scription of the offense, it must be accom- ballots by depositing' with the Pickens

p"ni"a by the facts and circumstances in- County Circuit Court' absentee ballots

ior*ing ihe accused of the specific offense' which were fraudulent and that she knew

setting forth with particularity the "time, to be fraudulent.
place, and circumstances" of the crime' A more concise and particular statement- h- Conaon v. Stzte, supra, the Supreme informing appellant of the charges she

Court of Alabama recognized that, while a would be required to meet is difficult to

gelgrgl ?99u!*!gn of "illegal ,otld'_I* envision.
'1r3g-f;:ti"*Uto sup-pod-a-connictioi, Af It is clear rhat the indictmenr was suffi-
;16grti"" "f "illegal voting" which speci; 

cient and the trial court was correct in
nea in what the illegality consistfrWhETt
er it was a want of le$-al qualification-0r overruling the appellant's demurtner'

voting more than once, would be sufficient'

t{1 Our examination and comparison of III

the indictment with the statute shown in The appellant complains that the State's

the foregoing paragraphs reveals that the evidence was insufficient to support her

indictment follows the ianguage of the stat- conviction. She argues that the testimony

ute. It is a plain, concise 
-andlefinitc writ- presented by the Stat€ did not "reveal a

ten statement of the ess€ntial facts consti- single instance of unauthorized voting'"

tuting the offense charged. The indictment The appellant claims that there were only

also sufficiently informed the appellant of "some technical imperfections employed" in

the particularg of the offense * th"t th" her assistance of absentee voters'

could prepare her defense' A brief summary of the testimony of

A sufficient indictment for fraudulent or sopliia spann, Lucille Harris, Lula Deloach

illegal voting- and Robert Goines reveals evidence con-

..[m]ust ordinarily set forth the facts re- trary to appellant's assertion' All these

lied on to constitute the offense and al- witnesses testified that they did not vote by

lege that the election at which the of- absentee ballot, yet abgentee ballots were

fense was committed was held purcusnt voted in their names'

to law, and must descdbe the election and. Mrs. Spann's signaturc, represented by an

the intent with which the acts trere com- ..X," appesred on the application for an

mitgd." 29 C.J.S., S []41, supra. absentee ballot witnessed by the appellant'

A review of the three counts that made but Mrs' Spann stated that she could read'

up the indictment in question shows the write, and sign her own name' In addition'

tollowing: she pointed out that her name was miss-

count one made the appellantawarc that ffiIT"Atl";:H,f"li'*::l":Ttl:she did illegally or fraudule.ntly vote by
voting morc than once by depositing morl an absentee vote application'

than ine ballot as her vote in the Democrat- Lucille Harris testified that the appellant

ic Primary n,.n-Oft Election of September br"ought her a paper to fill out so that she

26, lg?8. would not have to go to the polls' She



162 AIa. 40r SOUTHERN BEPORTE& 2d SERTES

recalled that the appellant only visited her
on one occasion. Mrs. Harris stated that
she never received or signed an absentee
ballot, although an absentee ballot was vot-
ed in her name.

Lula De[,oach testified that the appellant
brought her an absentee ballot application
and stated to her that she (appellant) would
"fix the paper" for her. Although an ah.
sentee ballot was voted in Lula Deloach,s
n8me, Mrs. Deloach recalled that she did
not vote an absentee ballot in the run-off
election. Further, Mrs. Del,oach stated
that the signature appearing on the ballot
was not hers.

The testimony of Robert Goines was sub_
stantially similar to that of Mrs. Harris and
Mrs. Deloach.

The testimony of Charles Cunningham
seemed to indicate that the appellant used
deception in assisting him to vote in the
run-off election. Mr. Cunningham thought
he was voting on a completely different
subject.

The testimony of the other witnesses was
both confusing and conflicting, and, de_
pending on who was examining them, their
testimony was favorable to both the prose-
cution and the defense. Under these cir-
cumstances, only a jury could unscramble
the hodge-podge of the testimony. At any
rate, the conflicting evidence presented a
jury question. The truthfulness of the tes-
timony was for the trier of fact. May v.
State, Ala.Cr.App., AgE So.Zd 

"lZ 
(1976).

We agree with appellant that no offense
is committed merely by picking up applica-
tions for absentee baltots, or returning the
completed applications, or using someone
else's address for the return of the ballots.
However, when this evidence is considered,
along with the testimony of the aboqe four
witnesses and the irregularity in notarizing
the ballots, a rcasonable inferrnce inconsisi-
ent with the appellant's innocence exists.
Cuper v. State,235 AIa. 528, lg0 So. f02
(1e38).

t51 Circumstantial evidence must be ac-
corded the same weight as direct evidence
when it points to the accused as the guilty

perty. Lqke v. Seae, .tta.Cr.App., BBg
So.2d 488. Certsinly a jury could reason_
ably infer that appellant votcd the fraudu-
lent absentee ballots. Lockg supra.

t6l Thercfore, we conclude, after ac_
cording the verdict all reasonable pr,esump
tions of corcctness, that the evidence was
sufficient to support the verdict. We are
convinced that the verdict was not wnong,or
unjust and was not patently against the
weight of the evidence. Bridges v. State,
fr34 Ala. 412, n5 So.2d 821 (1969).

IV
t7] The appellant insists that she was

denied a fair trial when the prosecutor, in
his closing argument, improperly appealed
to the passion and prejudice of the jury.
The appellant argues that the Statt made
several rcferences to the attitude of black
people toward the trial. She insists that
the comments were significant because the
jury in her case was all white and no other
white persons wene in the courtrcom except
court officials. The appellant argues that
the prosecutor attempted to create the im-
pression that black people werc troublemak-
ers when he mentioned the fact that he had
to prosecute another case involving blacks
on the completion of the appellant's trial.

The specific comment to which the appel-
lant refers is found in the following portion
of the record:

"MR. JOHNSTON: Ail right. Ladies
and Gentlemen, I am going to quit. I
have got a murder csse to try as soon as
we get through with this. [t involves
some black people. It involves a black
man who was killed.
"MR. SEAY: Your Honor, may I ap
prcach the bench again?
"(Bench conference).

'THE COURT: Sustain your objection
and deny your motion.',

In Eyans v. Statc, AlaCr.App., gSS So.2d
1083 (19?6), this court recognized that there
is no legal standard for gauging the preju-
dicial qualities of district attomey's re-
marks. Ther.e the court said, .,Each case
must be determined on its own merits.',

In the Present (

prcsecutor came at
to the defense atta
The comment aPg
Yant to the case I
bing Hou* v. Ma.

620,93 So. 572 (19

attorney remarke(
was to prosecute
but nothing was sr

8nt, we do not br

prejudicial to app
trict attorney's cor

he would bring t
man to justice as
sue the killer of a

After a close r€r
argument by both
that the district
the argument pn
fense counsel. I
made in the first
ney's closing argr
amination of the
fense attorney, ir
many rcferences'

"I asked you at
you could accor
standard of jus
to a white per
black percon.

"[ asked each <

er or not the I
the attorneys r

make any diff
your deliberat

"K"ep in minc
to let commur
liberations thr
therp at all be
and consideral
in our judicial

"But I do not
Pickens Coun
challenge. I
hope to God y
thaL perhal
leave.



1YILDER v. STATB
Clt€ t* Atr"Cr.APS' {01 So.2d rnl

Ala. 163

s'

f
:,.

In the present case, the remark by the

prk"t"i came at the close of his rebuttal
'to th" d"f"n." attorney's closing argument'

The comment app€arc to be totally irrele-

,""t, to the case at hand' See Starr Job'iiis 
Aoun v. Mav Hosierv MilIs' Nl Ala

iml ga so. 5?2 (lgz:). Because the district

"tii.*y 
remarked that the next case he

*""" tr-p.ot""ute involved a black victim'

iJ "*ftitg 
was said about a black defend-

8nt, we do not believe the statement was

preiudicial to appellant' We view the dis'

iri"i 
"ttorn"y's 

comment as a rtminder that

he would bring the murderer of a black

m8n to justice as swiftly as he would pur-

sue the killer of a white man'

Aftcr a close reading of the entire closing

argument by both parties, we are convlnced

that ttre district attorney was replying to

the argument previously made by the de-

fense counsel. No mention of race was

made in the first part of the district attor-

ney's closing argument. However, our ex-

amination of the record shows that the de-

fense attorney, in closing argument' made

many references to race' From the record:

"I asked you at the outset whether or not

you could accord to Mrs' Wilder the same

.t"ndo.d of justice that you would accord

to a white penon' even though she is a
black person.

"I asked each of you at the outset wheth-

er or not the fact of the race or color of

the attorneys or of the defendant would

make any diff"r-n." at all or enter into

your deliberations in any sort of way'

"Keep in mind that you have vowed not

to let community pressure enter into de-

liberations that you go to make back

there at all because community pressures

and considerations of race have no place

in our judicial system.
,.:.

"But I do not know that " 
*lit" jury in

Pickens County in l9?9 cen rise to the

challenge. I Co not know that. I just

hoPe to God you can. But I do not know
thal Perhaps I will know it before I
leave.

"The State says, it implies that Mrs'

Wilder is a troublemaker'

"Really, look. Mrs' Wilder sits in a court-

room right now on trial and the prosecu'

ii"t i. iutit", the jury is white; and in

i""i "r*vUoay 
is white except Mrs' \{il-

der and her lawyers' And she has been

in Pickens County 6'6 years' She wants

.orn"too, to kind of change that situation'

ihe ought to want to change it' If you

,r"r" Ui""t, you would want to change it'

'Black people do not run the Democratic

Party oi no other party in the State of

Alabama. Ladies and Gentlemen' you

know that. White people run the Demo-

cratic PartY.

;*o*, last year is not the only time that'

ti"l p*" *o."n has been working in

elections. That part of her-She had

U""n ", it 
a long, long time' t would be

willing to wager you everything I have'

*r,i"tt"i" not much, that in November of

last year that poor woman worked hard

and iong and with absentee ballots to

i"rp a"J, Fob James that many of you all

voted for. That is just as true as I un-

derstand it here' But while Governor

i"*", lr". gone in to be the Governor of

this State, that poor woman sits here on

irial. I dare say, I will wager everything

i itr" got and I said that is not much'

that when he ran, if he ran' that Poor

;;;"" was out there with absentee bal-

lots across this county' If he got elected'

she helPed.

"But they did not pt'osecute her that

time. If he runs again, seven daYs a

*eet 
"ny*tt"re 

she can find to vote she is

going to be trYing' That is her'
;The problem occurs' and that is why I

will tell you to use your common sense'

The pr.oblem occurs if some black candi-

J"t" .r"fo"". locally and wants to nrn for

something. She is going to support him'

She would be crazy if she did not' You

would do it if you were in her position'

That makes her in the minds of some a



164 Ala. 4OI SOUTHERN REPORTE& 2d SERIES

troublemaker. It has come now to the
point where they say she is even a crimi_
n8l.

"Did you hear the testimony of who
brcught thes€ ballots to the Courthouse?
It was not Mrs. Wilder; it was not even
anybody black. It was a white man who
helped successfully to elect one of your
United States Senators, Howell Heflin.

". . . You ought to find her not guilty
becsuse on the evidence, she is not.
There is no criminal intent here. There is
no fraud here. Therrc is only a poor wom-
an trying to help. That is all you've got.
But there is this question of race and all
that.
"You and I know that there are people in
this county, in every county out therne, I
would say in the boon docks, and they
ain't all black. They have used her,
reused her, and will use her again if they
get the opportunity."
The following comments were made by

the district attorney in rebuttal u.gurnuni,

| "It does not make any difference to me

I how many white people in pickens Coun-

I ty think that Julia Wilder is an agitator.
I It does not make any difference to me
I how many people would like to talk to usI about that.

"If anyone in this county who happens to
be white were to commit a crime involv-
ing any black member of our society in
this county, it would not make any differ-
ence to me how much pressure was ap-
plied not to prosecute that person simply
because he or she was white.

"Now, a lot has been ssid about the stan-
dard of trcatment for blacks, that the,.
same standard of trcatment should be
applied. Convemely, we might say that
the same duty to abide by the law should
apply. And the same stsndard of compli-
ance should apply, a privilege including
rcsponsibilities. And it is not enough to
say when a law is violated that he or she
is simply black or white and that is the
end of it.

"Mr. Seay said that if your verdict is
impartial, it must be not pilty. Now,
Ladies and Gentlemen of the jury, it is
more important to me that she get a fair
trial in the county than that you find her
*:'*

"And it is obvious that there is probably a
lot of pressure on a lot of other people
becsuse there has not been many white
folks in the courtroom at alt this time.
They would rather steer clear of the taint
of having offended these folks. you
know, they will all come and ask if some-
body is being investigated, but they do
not want the responsibility for whatever
happens after that. And that is the way
a lot of folks feel about you. They will
say, you know, that .you really ought to
convict her, but do not tell anybody that I
said it to you."'
We note that no objections were taken to

any of the preceding quotes by either the
defense or the prosecution.

Our examination of the closing argu-
ments reveals what appears to be a pattern
of racial references injected by the defense.
The district attorney's remarks, including
the remark objected to, were reply in kind
to the defense attorney's arguments. The
appellant cannot complain of the remarks
by the district attorney when they were
provoked by her defense counsel. Byrd v.
Stab, mg Ala. &5, 9b So. 655 (1923). See
also, .*a/s v. State, 82 A1a.586, 2lg So.zd
645 (1968).

This court observed in Evans v. State,
supra, that wide latitude should be given to
the pnosecuting sttorney when he rcplies to
an atgument previously made by the de-

, fense counsel. The remarks complained of
by the prosecutor were not error and were
within the permissible limits of reply to the
defense counsel.

v
tEl At the completion of the court's oral

charge, the appellant objected to the trial
court's instructions to the jurry, claiming

that the trial court imp
cont€ntions of the State r

contentions of the appell

The trial court's ehat
sidered as a whole; no p
tested in isolation. Brco,
App., 3&3 So.2d r (1970.

In the present case, thr
the State's contentions ot

its burden of proof. Th(
prcfaced with the follow

Now, the State has the
ing you, the jury, firr
yond a r.easonable doul
following matters or r
fenses contained in thi

The trial court then cont
of the charge by stati

"As I have pointed out
rests upon the State of
all of these allegationr
tion beyond a reasonat

ln Glover v. State,2l
100 So. 125 (1926), thl

"In charging the jury,
the judge to give the lc
theories presented by t

0r



WILDER % STATE
Cltc t', Alact AD. ,|ol So.zd ltt

that the trial court improperly stated the if he recapitulates the evidence on one

contentions of the State without stating the side, to recapitulate it also on the other
contentions of the apPellant. side, and not to indicate, by the matter or

App., 353 So.2d f (1977).

In the present case, the trial court named

the State's contentions only in reference to
its burden of proof. The contentions were
prefaced with the following statement:

Now, the Statc has the burden of satisfy'
ing you, the jury, from the evidence be-

yond a reasonable doubt as to each of the
following matters or one of the two of-
fenses contained in this statute."

The trial court then concluded that portion
of the charge by stating the following:

"As I have pointed out to you, the burden
rests upon the State of Alabama to prove
all of these allegations to your satisfac-
tion beyond a reasonable doubt."

ln Glover v. State,21 Ala.App. 42ts, 426,
f00 So. lZi (1926), the court observed:

"In charging the jury, it is the duty of
the judge to give the law applicable to all
theories presented by the testimony, and,

Ala. 165

The fornegoing portion of the court's oral
instruction did not recapitulate the evidence

for the State at the expense of the appel-

lant. Nor did it comment on the effect of
the evidence, or refer to what had or had

not been proved. Wynan v. State,47 Ala.
App. 643, %9 So.zd &9 (f972). The triel
eourt merely statcd the burden of proof on

each element of the offense that must be

met by the State. Therefore, it is our judg-
ment that the trial court properly instruct-
ed the jury. See HrI's Administratpr v.

Nichols, 50 Ala. 336 (1874).

We have searched the record for error
prejudicial to appellant and have found
none; therefore, the judgment of conviction
by the Pickens Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.

ts

,t,
is
rir

The trial court's charge must be con- manner of the charge, what his own

sidered as a whole; no p""t of it should be views arc as to the effect of the testimo-

test€d in isolation. Bnnks v. State, Ala.Cr. ny'"

a
le
t/e

e.

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ry

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o
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e

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APPENDIX

Pickens CountY

DE aocl^trcDAlrt

OTFrcIAL ABSENTEE BATLOI
t PRtMlnY RUII-oFF ELEcrroIr

SEPTEiIBER 20. 1978

ttatnocnoll& lo vt tl c7 odldct rcb c
ilEhlb.{E.bL.rFEbcb.
.edff a tc d-.I

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