# Hunt v. State

> Court of Criminal Appeals of Alabama · January 12, 1994 · 642 So. 2d 999

URL: https://www.frixlaw.com/law-library/cases/1152944

## Case

- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** January 12, 1994
- **Citations:** 642 So. 2d 999; 1993 WL 581039
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Cited by:** 103 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

642 So.2d 999 (1993)
Harold Guy HUNT
v.
STATE.
CR 92-1300.
Court of Criminal Appeals of Alabama.
December 13, 1993.
As Modified on Denial of Rehearing January 12, 1994.
*1002 George Beck and Terry Travis, Montgomery, John Mark McDaniel, Huntsville, and William N. Clark, Birmingham, for appellant.
James H. Evans, Atty. Gen., and Rosa H. Davis, David Bjurberg, and Stephen P. Feaga, Asst. Attys. Gen., for appellee.
PER CURIAM. [1]
Harold Guy Hunt, the Governor of the State of Alabama, was indicted and convicted for using his office for direct personal financial gain in violation of Ala.Code 1975, § 36-25-5 of the Alabama Ethics Law. His sentence of five years' imprisonment was suspended upon the condition that he perform 1,000 hours of community service. This is the direct appeal from that conviction.
STATEMENT OF THE CASE
The Alabama Ethics Commission, after investigation, found probable cause to believe that Hunt had violated the State Ethics Law. The Commission sent its findings to the Alabama Attorney General for further proceedings on September 20, 1991, pursuant to Ala.Code 1975, § 36-25-4(8). Hunt, in his official capacity as governor, secured legal counsel. He initiated legal proceeding in the Federal District Court for the Middle District of Alabama in which he requested the court to stop any proceedings against him on the ground that he was not subject to the state ethics law because he was the chief executive of the state. The federal district court denied relief on October 30, 1991. Hunt v. Anderson, 794 F.Supp. 1557 (M.D.Ala.1992). Hunt appealed that decision to the United States Circuit Court of Appeals for the Eleventh Circuit. The Eleventh Circuit Court of Appeals affirmed the ruling of the federal district court on September 30, 1992. Hunt v. Anderson, 976 F.2d 744 (11th Cir.1992).
While the appeal from the ruling of the federal district court was pending, a state grand jury was convened in June 1992 in Montgomery County by the Attorney General, to investigate Hunt's financial transactions. During the course of the investigation, the grand jury subpoenaed financial records of Hunt and members of his family. In response to motion, filed by Hunt, the Circuit Court of Montgomery County ruled that the *1003 grand jury had a right to examine Hunt's financial records. Hunt appealed that ruling. After hearing oral arguments, this court denied the petition without opinion, thereby allowing the ruling of the trial court to stand. Ex parte Hunt, 617 So.2d 703 (Ala.Cr.App. 1992).
On December 28, 1992, the grand jury indicted Hunt. Count I of the indictment charged Hunt with a violation of the State Ethics Law which prohibits an elected official from using his office for direct personal financial gain. The remaining 12 counts of the indictment were dismissed by the circuit court based on the statute of limitations.
The trial began with jury selection proceedings on April 12, 1993. The trial concluded on April 22, 1993, when the jury returned a verdict of guilty as charged in count one of the indictment. Hunt was sentenced on May 7, 1993. He filed a motion for a new trial which was denied on June 23, 1993. Notice of appeal was filed. The completed record of the circuit court proceedings was filed with this court on July 6, 1993. Oral arguments were heard on September 8, 1993. This case was officially submitted to this court on that date.
Appeal to this court is an absolute right. Section 12-3-11, Code of Alabama 1975, provides:
"Each of the courts of appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Each court shall have authority of grant injunctions and issue writs of habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction and to punish for contempt by the infliction of a fine not exceeding $100.00 and imprisonment not exceeding 10 days, or both, and to exercise such other powers as may be given to such court by law."
Section 12-3-9, Code of Alabama 1975 states in pertinent part:
"The court of criminal appeals shall have exclusive appellate jurisdiction of ... all felonies...."
Any appeal to the Alabama Supreme Court of this court's ruling affirming Hunt's conviction is in the nature of discretionary review. Ala.Code 1975, § 12-2-2. See Cunningham v. State, 611 So.2d 510 (Ala.Cr.App.1992).
I. SELECTIVE PROSECUTION
Hunt initially argues that the trial court committed reversible error by failing to dismiss the indictment on the grounds that he was selectively prosecuted in violation of his constitutional rights. Hunt's contention is based on the guarantee in the Fourteenth Amendment of the United States Constitution which states in part that no person shall be denied "the equal protection of the law." Hunt contends that the equal protection clause was violated by his selective prosecution and that "he and the people of the state were denied equal access to justice."
In 1886 the principle that equal protection of the law is denied when a law is arbitrarily enforced was applied in the United States Supreme Court case of Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886). This principle was reaffirmed by the United States Supreme Court in Snowden v. Hughes, 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 (1944) and Oyler v. Boles, 368 U.S. 448 , 82 S.Ct. 501 , 7 L.Ed.2d 446 (1962).
Yick Wo, a native of China, appealed the enforcement of a San Francisco ordinance which stated that all owners of laundries built of wood had to obtain consent from a board of supervisors before they were allowed to continue to operate. Yick Wo, who had operated his "wooden laundry" for 22 years, sought consent of the board. Approval was denied and Yick Wo appealed that ruling. He presented evidence that there were 320 laundries in San Francisco, that 240 of those were operated and owned by natives of China, and that a total of 310 were made of wood. Yick Wo and more than 150 of his countrymen were arrested for similar violations. The United States Supreme Court, in holding that Yick Wo was discriminated against, stated the following:
*1004 "The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution."
118 U.S. at 374 , 6 S.Ct. at 1073 , 30 L.Ed. at 228 .
Discriminatory enforcement or prosecution must be "purposeful." Snowden v. Hughes, supra. In Oyler v. Boles , the United States Supreme Court further stated that the selectivity must be "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." 368 U.S. at 456 , 82 S.Ct. at 506 , 7 L.Ed.2d at 453 . "[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." Oyler v. Boles, 368 U.S. at 456 , 82 S.Ct. at 506 , 7 L.Ed.2d at 453 . See also 155 A.L.R. 1162 (1945). Though the United States Supreme Court has addressed the issue of discriminatory prosecution on several occasions, the exact elements of proof have been left to evolve on a case-by-case basis.
The Alabama courts have also dealt with this issue. In the case of Associated Industries of Alabama, Inc. v. State, 55 Ala. App. 277 , 314 So.2d 879 , cert. denied, 294 Ala. 281 , 314 So.2d 901 (1975), the Alabama Court of Criminal Appeals adopted the holding in United States v. Steele, 461 F.2d 1148 (9th Cir.1972), and held that, initially, the party relying on the defense of discriminatory enforcement must first make a showing that a "strong inference of discriminatory prosecution exists." Once this showing has been made, it is up to the prosecuting agency to show that the "selection process actually rested upon some valid ground." Associated Industries, 314 So.2d at 890, quoting Steele, 461 F.2d at 1152 .
To establish that a "strong inference of discriminatory prosecution exists" the party alleging such discrimination must show (1) selectivity in enforcement, (2) intentional selectivity, and (3) selectivity based on an unjustifiable standard. Elmore v. State, 445 So.2d 943 (Ala.Cr.App.1983); Coble v. City of Birmingham, 389 So.2d 527, 533 (Ala.Cr. App.), cert. denied, 389 So.2d 535 (Ala.1980); Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Cr.App.), cert. denied, 377 So.2d 1134 (Ala.1979), cert. denied, 446 U.S. 956 , 100 S.Ct. 2929 , 64 L.Ed.2d 815 (1980). The party alleging discriminatory prosecution bears the burden of proof in establishing the claim. Robinson v. City of Birmingham, 353 So.2d 528 (Ala.Cr.App.), cert. denied, 353 So.2d 534 (Ala.1977), cert. denied, 436 U.S. 932 , 98 S.Ct. 2833 , 56 L.Ed.2d 777 (1978). See also Annot., What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide Valid Defense in State Criminal Proceedings, 95 A.L.R.3d 280 (1980); Annot., Preconviction Procedure for Raising Contention that Enforcement of Penal Statute or Law is Unconstitutionally Discriminatory, 4 A.L.R.3d 404 (1965); 21A Am.Jur.2d § 831 and cases cited therein.
The United States Supreme Court has stated that:
"`so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.' Bordenkircher v. Hayes, 434 U.S. 357, 364 [, 98 S.Ct. 663, 668 , 54 L.Ed.2d 604, 611 ] (1978)....
"[A]lthough prosecutorial discretion is broad, it is not `"unfettered." Selectivity in the enforcement of criminal laws is ... subject to constitutional constraints.' United States v. Batchelder, 442 U.S. 114, 125 [, 99 S.Ct. 2198, 2205 , 60 L.Ed.2d 755, 765 ] (1979) (footnote omitted)."
Wayte v. United States, 470 U.S. 598, 607-08 , 105 S.Ct. 1524, 1530-31 , 84 L.Ed.2d 547, 556 (1985).
"[T]he burden resting upon the party seeking to prove unconstitutionally discriminatory enforcement of the law is a heavy one, and the cases involving claims of discriminatory enforcement are not clear as to what specific evidence will suffice to prove discrimination." *1005 4 A.L.R.3d at 410. The cases dealing with discriminatory enforcement are not entirely uniform. The Supreme Court of Nebraska adopted a hard test to meet when they held:
"To establish arbitrary discrimination inimical to constitutional equality, there must be more than an intentional and repeated failure to enforce legislation against others as it is sought to be enforced against the person claiming discrimination. Arrigo v. City of Lincoln, 154 Neb. 537 , 48 N.W.2d 643 (1951). There must be more than a showing that a law or ordinance has not been enforced against others or that it is sought to be enforced against the person claiming discrimination. City of Omaha v. Lewis & Smith Drug Co., Inc., 156 Neb. 650 , 57 N.W.2d 269 (1953). A finding of unlawful selective enforcement must be based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Oyler v. Boles, 368 U.S. 448 , 82 S.Ct. 501 , 7 L.Ed.2d 446 (1962)."
State v. Long, 206 Neb. 446 , 293 N.W.2d 391, 394 (1980).
In reaching that finding, the Nebraska court relied on federal cases which stated:
"To support a defense of selective or discriminatory prosecution, the defendant must show not only that others similarly situated have not been prosecuted, but that the selection of the defendant for prosecution has been invidious or in bad faith, based upon considerations such as race, religion, or the desire to prevent his exercise of his constitutional rights. United States v. Berrios, 501 F.2d 1207 (2d Cir.1974).
"A discriminatory purpose will not be presumed; there must be a showing of clear and intentional discrimination. Snowden v. Hughes, 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 (1944)."
Long, 293 N.W.2d at 394 .
Evidence of discriminatory enforcement or prosecution "[m]ay consist of statistical evidence indicating prosecution based on some characteristic or characteristics irrelevant to law enforcement purposes, or of evidence indicating prosecution of only a very few of the many knowable violators of the law." Tinsley, Jimmie E., Discriminatory Enforcement of Criminal Law, 13 Am.Jur.Proof of Facts 2d 609, 631 (1977).
Courts have found that the following reasons do not involve unconstitutional prosecution: prosecuting a person who is publicly prominent, Commonwealth v. Beneficial Finance Co., 360 Mass. 188 , 275 N.E.2d 33 , cert. denied, 407 U.S. 910 , 92 S.Ct. 2433 , 32 L.Ed.2d 683 (1972); prosecuting a person who conducts a certain type of business, Taylor v. City of Pine Bluff, 226 Ark. 309 , 289 S.W.2d 679 , cert. denied, 352 U.S. 894 , 77 S.Ct. 125 , 1 L.Ed.2d 85 (1956); and prosecuting a person based on the extent of his illegal activity, State v. Walker, 236 N.W.2d 292 (Iowa 1975).
Hunt relies on the case of Associated Industries, in which this court reversed the defendant's conviction on the premise that the political committee was singled out for prosecution in violation of the Fourteenth Amendment. The committee in Associated Industries was indicted for failing to file an expense report with the Secretary of State and for failing to include the names and addresses of the committee on advertisements published in newspapers. In that case it was proven that many political committees had violated the state's Corrupt Practices Act by failing to file expense accounts but that Associated Industries was the only group which was prosecuted. In Associated Industries this court stated that the defendants had presented evidence which created a strong inference of discriminatory prosecution and the state had failed to rebut that inference by showing that the prosecution was based on reasonable permissible grounds.
Here, Hunt adopts a two-step defense. His first contention is that he was charged with a violation of the Fair Campaign Practices Act, § 17-22A-23, Code of Alabama 1975, for personal use of "excess campaign funds." Second, he contends that the state did not prosecute other public office holders for their personal use of excess campaign funds. Specifically, Hunt contends that legislative candidates should have been prosecuted under the Fair Campaign Practices Act for misusing excess campaign funds. However, *1006 Hunt was not charged with violating the Fair Campaign Practices Act, and this case does not involve excess campaign funds. Those two facts are fundamental to an understanding of this case. While we recognize that Hunt had a definite trial strategy, Hunt was charged with using his public office to obtain a direct personal financial gain in violation of the State Ethics Law.
If the party alleging the discriminatory enforcement fails to make an initial showing of discriminatory enforcement, "[t]he presumption that a criminal prosecution is undertaken in good faith and in a nondiscriminatory manner, ... remains undisturbed" United States v. Niemiec, 611 F.2d 1207, 1209 (7th Cir.1980) (citation omitted). No evidence was presented or offered, or offer of proof made, to show that anyone else subject to the Ethics Law had done the acts with which Hunt was charged and convicted of doing. No one else had (1) caused to be set up a non-profit transition and inauguration corporation upon having been elected, (2) then had solicited and collected moneys for such entity and (3) then, through a series of banking transfers, had used the money for personal gain.
Hunt has proved not one element of "selective enforcement." We hold that his prosecution for violating the Alabama Ethics Law was not discriminatory or arbitrary and that it did not violate the Fourteenth Amendment of the United States Constitution. [2]
II. THE JURY CHARGE
Hunt contends that the trial court's instructions to the jury on the use of excess campaign funds amounted "to a directed verdict for the state" and constituted reversible error.
Again, we emphasize that Hunt was indicted for violating the Ethics Law, not for violating the Fair Campaign Practices Act for use of excess campaign funds. Count one of the indictment charged:
"The Grand Jury of said county charge that before the finding of this indictment Harold Guy Hunt, alias H. Guy Hunt, alias Guy Hunt whose name is otherwise unknown to the Grand Jury, while a public official or employee, to wit: the Governor of the State of Alabama, did use an official position or office, to wit: the Office of the Governor of the State of Alabama, to obtain direct personal financial gain, to wit: two hundred thousand dollars ($200,000) in lawful currency and/or coinage of the United States of America and/or checks, a better description of which is unknown to the Grand Jury, for himself or his family or any business with which he or a member of his family is associated, said use and gain not being specifically authorized by law in violation of Section 36-25-5 of the Code of Alabama, against the peace and dignity of the State of Alabama." R. 26 (emphasis added).
The indictment charges that Hunt violated the Ethics Law contained in § 36-25-5. This section states in part:
"(a) No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."
Throughout the trial, defense counsel made numerous references to excess campaign funds. Hunt sought to characterize as "excess campaign funds" contributions made to a non-profit corporation after the election was over. Such references began in opening statements and in the course of the trial many such references to "excess campaign funds" were made by the defense. It appears that Hunt did everything possible to make "excess campaign funds" an issue in this case. The decision to so characterize those contributions and to treat this case as one involving a violation of the Fair Campaign Practices Act was a strategic decision by Hunt and his attorneys as part of the defense. It does not appear that any other defense was relinquished or waived by virtue of their pursuit of this defense.
*1007 For example, the following occurred during the testimony of the Director of the Ethics Commission, Mr. Melvin Cooper:
"Mr. Evans [Attorney General]: Judge, we're going to object.
"The Court: Let me ask a question. I don't know if it's on this point or not. I'm having trouble, I'm having some trouble here with a law that says that you can't use your office to receive direct personal gain and a law that says you can use excess campaign funds for any lawful purpose. How does that—
"Mr. Beck [defense counsel]: We agree.
"The Court:—how does that allow—I don't understand how that allows somebody who is in office to take campaign funds and use them personally when the Ethics Act specifically makes that unlawful, and, therefore, it would be a lawful purpose. Now, is there something with my logic?
"Mr. Beck: No, sir. That's what we've argued from the beginning, Judge. That's it.
"Mr. Evans: No, sir.
"Mr. Beck: That's our case."
This approach to defending the case— treating it as a Fair Campaign Practices Act violation—carried over in Hunt's appellate brief. This is the meaning of Hunt's statement in brief that the trial court's charge to the jury on excess campaign funds amounted "to a directed verdict for the state."
One of the principal issues in this case is whether the trial court erred to reversal in the instruction to the jury known in legal parlance as the "jury charge." We set out the charge verbatim and in its entirety in order to place the particular instruction in context. We have underlined that portion of the charge which Hunt claims amounted to a "directed verdict."
"Ladies and gentlemen, the closing arguments have been concluded and it is now my responsibility to charge you on the law. This case was brought to you by way of what we call an indictment, and the indictment alleges that Harold Guy Hunt, while a public official, to wit, the Governor of the State of Alabama, did use an official position or office, to wit, the office of Governor of the State of Alabama, to obtain direct personal financial gain, to wit, two hundred thousand dollars in lawful currency or coinage, a better description of which is unknown to the grand jury, for himself, or his family, or any business with which he or a member of his family is associated, said use and gain not being specifically authorized by law, in violation of Section 36-25-5 of the Code of Alabama, against the peace and dignity of the State of Alabama. The first thing that I would say to you, ladies and gentlemen, is that an indictment is in no way to be considered as evidence by you. An indictment is very simply the form or the mode or the procedure through which a case gets into Court so that twelve jurors may be selected and determine the merits of the case. The indictment does, however, tell us what the charge is so that I will know what to charge you, and, therefore, then you will know what the law is that this case is being prosecuted under and you'll know the elements which must be proved beyond a reasonable doubt before a verdict of guilt would be warranted.
"Title 36, Chapter 25 and various Sections thereof is a body of law that relates to the conduct of public officials and employees of the State of Alabama, and is known in its short form as the Alabama Ethics Law. Title 36-25, Section 2 of that section of the Ethics Act reads as follows: Section (a): It is essential to the proper operation of democratic government that public officials be independent and impartial; that governmental decisions and policy be made in the proper channels of the governmental structure; that public office not be used for private gain other than the remuneration provided by law; and that there be public confidence in the integrity of government. The attainment of one or more of these ends is impaired whenever there exists a conflict between the private interests of an elected official or a government employee and his duties as such. The public interest, therefore, requires that the law protect against such conflicts of interest and establish appropriate ethical standards with respect to the conduct *1008 of elected officials and government employees in situations where conflicts exist.
"It is also essential to the proper operation of government that those best qualified be encouraged to serve the government. Accordingly, legal safeguards against conflicts of interest must be so designed as not unnecessarily or unreasonably to impede the recruitment and retention by the government of those men and women who are best qualified to serve it. An essential principle underlying the staffing of our government structure is that its elected officials and employees should not be denied the opportunity, available to all other citizens, to acquire and retain private economic and other interests, except where conflicts with the responsibility of such elected officials and employees to the public cannot be avoided.
"Section 5, Title 36, Chapter 25 of the Alabama Ethics Act is the Section under which this indictment is brought. Section 5 reads as follows: The Act provides in its pertinent part that, and I quote: No public official shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law. The Act further provides that any person who knowingly or willfully violates any of its provisions is subject to certain penalties. In order to find the Defendant guilty in this case, you must be convinced, beyond a reasonable doubt, from the evidence that the Defendant either knowingly or willfully used his official position or his office to obtain direct personal financial gain for himself, or his family. Therefore, the prosecution must prove beyond a reasonable doubt each and every element of the Act as follows, to wit: One, that the Defendant was a public official; two, that the Defendant used his official position or office; three, that by using his official position or office he obtained direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated; four, that such gain was not authorized by law; and, five, that the Defendant knowingly or willfully violated this provision. The word knowingly means that the act was done voluntarily and intentionally and not because of mistake or accident. A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists. Willfully. A person acts willfully when he acts voluntarily. A person acts willfully when the act was committed voluntarily and purposefully with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law. The term willfully is defined and means intentional as opposed to accidental or involuntary. Intent, being a state of mind, is rarely, if ever, susceptible of direct or positive proof and must usually be inferred from the facts testified to by witnesses in the circumstances as developed by and through the evidence. To convict, the State, in addition to the elements of the crime charged, must prove beyond a reasonable doubt that at the time of the commission of the alleged crime the Defendant was not acting under a mistaken belief either of fact, which would negate the culpable mental state required for the commission of the crime; or, mistaken belief of fact which supports the Defense of justification; or, mistaken belief founded upon an official statement of law contained in a statute that such conduct, as a matter of law, did not constitute a crime; or, a mistaken belief of law which is relevant to disprove the specific state of mental culpability required by the statute under which he is being prosecuted. The Defendant's mistaken belief of law must be other than as to the existence or meaning of the statute under which he is being prosecuted. Definition of public official. The term public official means any person elected to public office by the vote of the people of the state, county, or municipal level of government or their instrumentalities, and any person appointed to a position at the state, county, municipal level of government or that instrumentality. The term public official's family means the official's spouse and dependents. Of business, under *1009 the Ethics Act, means any corporation, partnership, proprietorship, firm, enterprise, franchise, association, organization, self-employed individual and any other legal entity. The term business with which he is associated, under the provisions of the Ethics Act, means any business of which the person or a member of his family is an officer, owner, partner, employee or holder of more than ten percent of the fair market value of such business. The law defines obtains as, in relation to property, to bring about a transfer or purported transfer of a legally recognized interest in the property for direct personal financial gain for himself or family.
"I charge you further that the amount of any direct personal financial gain is not an element of the offense charged, and strict proof of the amount alleged in the indictment is not required. As to the amount, the State need only prove beyond a reasonable doubt that the Defendant obtained some direct personal financial gain.
"There is the law called the Fair Campaign Practices Act. That law provides that a committee, a political committee, shall maintain a checking account and shall deposit any contributions received by such committee into such account. No expenditure of funds may be made by any such committee except by check drawn on such account or out of a petty cash fund from which it may make expenditures, not in excess of one hundred dollars to any person in connection with a single purchase or transaction. The Fair Campaign Practices Act became effective July the 1st, 1988. This Act says the following in regard to the use of excess campaign contributions. Amounts received by a principal campaign committee as contributions that are in excess of any amount necessary to defray expenses of the candidate represented by such committee, may be used by such candidate to defray any ordinary and necessary expenses incurred by him or her in connection with his or her duties as a holder of office, may be contributed by him or her to any organization described in the title, may be transferred to another political committee, or may be used for any other lawful purpose. The Court would charge the jury that it is not unlawful to use excess campaign funds to defray any ordinary and necessary expenses incurred by the Defendant in connection with any duties as a holder of office. I would further charge this jury that it is not unlawful to use excess campaign funds to reimburse old or new campaign debts, or the interest on the said debts where the debts were incurred for and connected to campaign expenses. The Court would further charge the jury that the Alabama Ethics Act provides that no public official shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated, unless such use and gain are specifically authorized by law. The use of excess campaign funds for direct personal financial gain is, therefore, not a lawful purpose as that phrase is used in the Fair Campaign Practices Act. [Emphasis added].
"The law of Alabama further requires that each state official earning more than twenty-five thousand dollars per year from his state employment to file a Statement of Economic Interest listing total combined family income from salaries, fees, dividends, profits, commissions, and other compensation from any business doing business in Alabama, or any other source of income, except that an elected official is not required by law to list as income any monies received and used for the repayment of debt or repayment of interest on debt incurred as the result of past or present election campaigns.
"Now, to this charge this Defendant has pled not guilty, and under our system, immediately upon a plea of not guilty the burden of proof is placed upon the State of Alabama, by and through its representatives, to prove a Defendant's guilt beyond a reasonable doubt. A Defendant is presumed innocent. The State has the burden of proving the guilt of the Defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The burden is never on the Defendant to prove his innocence or disprove the facts necessary to establish a crime of *1010 which he is charged; so it's important at the outset for us to try to understand, and right now let's make sure that you understand what the burden of proof is, what you're to look at, what is your responsibility when considering the evidence in this case to make a determination whether or not the elements of this offense have been proved beyond a reasonable doubt.
"The beyond a reasonable doubt phrase is a measuring stick in the law, in our criminal law, which is given to you, the jury, that you are to take and place upon the evidence to determine whether or not the burden of proof has been met in this case, so it's important that you gain as much of an understanding as is absolutely possible what that phrase means—beyond a reasonable doubt. The first thing I would say to you about that phrase is that it means exactly what it says. It has its ordinary and everyday meaning. Beyond a reasonable doubt. Perhaps it has a lot more importance here in the courtroom, here in a criminal case, than in many other matters of life, but it means what it says. A reasonable doubt is a fair doubt based upon reason and common sense and arising from the state of the evidence. While it is rarely possible to prove anything to an absolute certainty, suspicion or conjecture will not rise to meet the standard of reasonable doubt. A reasonable doubt may arise not only from the evidence produced, but also from the lack of evidence or any part of the evidence. The burden is upon the State to prove the Defendant guilty beyond a reasonable doubt of every essential element of the crime charged. A Defendant has the right to rely upon the failure of the prosecution to establish such proof. A Defendant may also rely upon evidence brought out on cross-examination of witnesses for the prosecution and upon evidence presented on behalf of the Defendant. The law never imposes upon a Defendant in a criminal case the burden or duty of producing any evidence.
"The doubt which would justify an acquittal must be an actual doubt. It's not some mere speculation, conjecture, guess, or surmise and it's not a forced or capricious doubt. If, after considering all the evidence in this case, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt and it would be your duty to convict the Defendant. The reasonable doubt which entitles an accused to an acquittal is not some mere fanciful, vague, conjectural or speculative doubt; but it's a reasonable doubt arising from the evidence or lack of evidence or any part of the evidence and remaining after you've given careful consideration of all the testimony, all of the evidence in the case, and you should do that just as any reasonable, fair-minded, conscientious man or woman would do or entertain under all the circumstances. You will observe that it is not the State's burden to prove a Defendant's guilt beyond all doubt or to some mathematical certainty, but simply beyond a reasonable doubt. If, after comparing and considering all the evidence in this case, lack of evidence of any part of the evidence, your minds are left in such a condition that you cannot say that you have an abiding conviction of the truth of the charge, then you are not convinced beyond a reasonable doubt and it would be your duty to find the Defendant not guilty.
"In coming before you on his plea of not guilty, each Defendant is presumed to be innocent, to be innocent of the charge against him. This presumption of innocence remains with the Defendant throughout every stage of the trial and even during your deliberations of the verdict and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that he's guilty. The presumption of innocence of the Defendant is evidence in the case which must be considered along with all the other evidence and is not to be disregarded by you. The presumption of innocence alone is sufficient to find a Defendant not guilty unless you are satisfied beyond a reasonable doubt of the Defendant's guilt from all the evidence in the case.
"A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable *1011 doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. If you are convinced that the Defendant has been proved guilty beyond a reasonable doubt then say so. If you are not so convinced then say so. A reasonable doubt may arise not only from the evidence produced, but also from lack of evidence. The burden is on the State to prove the Defendant guilty beyond a reasonable doubt of every essential element of the crime charged. The Defendant has a right to rely upon evidence brought out on cross-examination of witnesses, but the burden of proof never shifts to the Defendant in the case. If you believe that the evidence in this case did nothing more than create a suspicion, a possibility, speculation or a guess that the Defendant is guilty of the criminal act with which he is charged, then that is an insufficient basis for a conviction. Circumstances merely causing a suspicion of guilt are insufficient to justify a conviction of a crime and then, therefore, you would have to find him not guilty.
"If you believe from the evidence there is any reasonable theory of innocence on this case, then you must find the Defendant not guilty. The evidence in this case against the Defendant must exclude to a moral certainty every reasonable hypothesis except that of guilt, and no matter how strong the circumstances are, if they can be reasonably reconciled with the theory that the Defendant is innocent or not guilty then you should find the Defendant not guilty. Once again, if you have been convinced beyond a reasonable doubt of the guilt of the Defendant by and through the evidence, then there let your verdict stand. If you have not been so convinced, then find him not guilty.
"Now, we've talked about reasonable doubt and what that means. We've talked about the fact that that is the measuring stick that you are to take and apply to the evidence to determine, based on the evidence, whether or not you've been convinced of guilt in this case, so let me try to make absolutely sure that you are certain what is evidence and what is not evidence. What you are to take that measuring stick and apply it to and what you are to not apply it to. First of all, let's take what's not evidence. I've already mentioned to you that the indictment itself is not evidence in the case. I've explained that it is simply the mode or the form or the procedure through which a case gets into Court and tells us what the official charge is, so the indictment is not evidence. What the lawyers have had to say—opening statements, closing arguments, objections made, statements made throughout the trial—those matters are not evidence in this case and you're not to consider them as such. Rulings of the Court are not evidence. Objection overruled, objection sustained, those rulings are based simply and solely on my understanding and knowledge of the legal principles involved. If any member of this jury thinks that they have, or if you've got some inference or think that this Court feels one way or another toward guilt or non-guilt in this case, you should disregard that right now. That is not my responsibility in these proceedings. That's your responsibility and yours alone as the jury, the finder of fact, the trier of the evidence in this case, so rulings of the Court are not evidence.
"Well, what is evidence? Testimony. Witnesses who have come into this courtroom and taken the stand, been sworn in and given testimony. They've answered questions that the lawyers have asked. That's evidence in this case for you to consider and consider the credibility thereof. Any exhibits that have been introduced into evidence, those matters are evidence for you to consider in this case. You are allowed, as reasonable men and women of good common sense, to draw inferences from the testimony, from the exhibits, and those reasonable inferences you may consider as evidence in the case. Another matter of evidence in this case I mentioned is the presumption of innocence. The presumption of innocence is a matter of evidence in this case and every criminal case, and it simply says, as I've already told you, that this Defendant came into this courtroom and he was and sits now presumed to *1012 be innocent. The presumption of innocence has been described as a cloak or a protective shield placed around an individual in our society who's charged with a criminal offense, protecting that individual from the government, from the State, from the king—that's where it came from—and that presumption, that protection, remains with one charged with a criminal offense up and until and only if, only if, a jury of his peers determines his guilt beyond a reasonable doubt and to a moral certainty. Then and then only would that shield, that cloak, be stripped away, and then and then only would he stand before this Court and this jury guilty as charged. So the presumption of innocence is a matter of evidence.
"You've heard alluded to throughout this trial what is called circumstantial evidence. Circumstantial evidence is proof of certain facts and circumstances in a given case from which a jury may infer other connected facts which usually and reasonably follow according to the experience of reasonable people. That word reasonable goes throughout this charge, if you haven't noticed. The test of the sufficiency of circumstantial evidence is whether the circumstances as proved produce an abiding conviction to the exclusion of a reasonable doubt of the guilt of the Defendant, whether the circumstances are incapable of explanation upon any other reasonable hypothesis consistent with the Defendant's innocence. There should not be a conviction based on circumstantial evidence unless it excludes every other reasonable hypothesis other than that of the guilt of the accused. No matter how strong the circumstances are, if they can be reconciled with the theory that the Defendant is innocent, then the guilt of the accused is not shown by the full measure of proof the law requires and the Defendant would have to be acquitted.
"You will recall that the Court charged you during voir dire when we questioned each one of you individually that the State has the burden of proof and that the Defendant has no burden and the Defendant need not even testify and that if the Defendant did not testify you couldn't hold that against the Defendant. You may not consider or even discuss the fact that the Defendant did not take the stand in this case.
"As to the credibility of the witnesses. The credibility of a witness is solely for you, the jury, the fact finder, the trier of the evidence, the trier of the testimony, to decide. You should subject that testimony to the same scrutiny that you would subject any important conversation or act. The mere fact that a witness was called by one side or the other or has an official title does not entitle such witness' testimony to more weight or credence than any other witness. The law says that in determining credibility of witnesses that you are to take all of the witnesses' testimony and to try to attempt to make it all speak the truth; but the law goes further and says that if you find in your deliberations there are irreconcilable conflicts within the testimony, within the evidence, that then it is within your province and your province alone as the jury in this case to accept that part which you believe to be true and disregard that part which you believe to be false. Even within the testimony of a single witness, if you believe that a witness has testified to you falsely on any material point then you may disregard all of that witness' testimony, or you may accept that part which you believe to be true and disregard that part which you believe to be false.
"Now, there are some tools that you may want to look to in helping you to determine the credibility of certain testimony. You may want to look to see, based on all the surrounding facts and circumstances of the case, whether or not a witness has exhibited any bias or prejudice or special interest in the case. If so or if not, that's one tool to take and place upon that witness' testimony in helping you to determine credibility. You may want to look to the demeanor of the witness. Now, demeanor is not a word to be frightened of, it very simply means how did they look, how did they act. Were they easy or uneasy, willing or unwilling? The witness chair is over here, the courtroom is built this way for a reason. *1013 The witness chair is over there by you so that you, the jury, the trier of fact, the one who must determine the credibility of the witness, might closely observe that witness when or she (sic) gives their testimony. Let me give you an example of demeanor. Probably one of the best examples, any of you folks that have children, when they come in talking to mamma or daddy, you look at how they're telling you as much as what's coming out of their mouth. That's demeanor. And in your everyday life, in your dealing with family and friends and business associates, you, without even thinking about it, use demeanor. Is this person telling me something that I can act on? That's just another tool that we all use and you can use it here.
"Another one is to test and see whether or not a witness actually had the opportunity to know, see or hear, whatever they've told you they knew, saw or heard. Based on all the surrounding facts and circumstances, did they actually have the opportunity to know, see or hear what they told you. And finally and last, but certainly not least, is your good common sense. Don't leave your common sense out here when you go back into the jury room to deliberate. You know, common sense is something that all of us, hopefully, are born with some of it. Sometimes I wonder, but hopefully we all are. And then as we are in this walk of life, we build on our common sense, our knowledge of men and their affairs. And as I look at this jury, I look at twelve different people, you come from twelve different walks of life and, therefore, when you go back into the jury room very shortly, you take your own common sense with you and apply it to this case and then put your common sense together with your twelve fellow jurors' common senses all to one end, helping you to decide what really happened. What is the truth of this matter?
"I've noticed that throughout the trial some of you folks have been taking notes, and that's okay, that's the reason I allowed it. You are permitted to take such notes with you into the deliberation room; however, I would caution you that no greater weight is to be given a juror with notes than one without. A specific juror's notes are to be used to refresh his or her own recollection of the evidence and are not to be used for the purpose of refreshing other jurors' recollections.
"Whatever your verdict is in this case it must be, must be, by law, unanimous. That means all twelve have to agree. Whether your verdict be one for guilt, all twelve would have to agree; or if your verdict be one for non-guilt all twelve would have to agree. Tell Ms. Baker I need two forms. Unanimous means everyone has to agree. There are no provisions for a split jury verdict under the laws of the State of Alabama.
"Your first job, when you retire in just a moment, will be to select one among you to serve as foreperson of this jury. That person's responsibilities are, really, two fold: One, to help insure the orderly conduct of your deliberations; and, two, once you have reached a verdict—either not guilty or guilty—to select the appropriate verdict form and sign it as foreperson of the jury. There are only two possible verdicts in this case. They are either: We, the jury find the Defendant not guilty; or, we, the jury, find the Defendant guilty as charged.
"Now the last thing I want to say to you is this. We, in our society, hear this term justice used a lot. We read about it, we hear about it on TV, we hear people talk about it. Sometimes that term is used appropriately, and sometimes inappropriately. But if there ever was a place that true quality ought to be involved in, ought to be applied to, ought to be a part of everything that happens, it's in a criminal courtroom, in every criminal case, in this criminal case; and I say that to you for two reasons, both are of equal importance. The first is that this Defendant comes into this courtroom and his freedom is literally at stake. And I hope and I pray that any time one of us as individuals must sit and make decisions that affect another person's freedom, that involved in, that a part of, that applied to that process, is that true quality of justice. Second reason, and just *1014 as important as the first: The State of Alabama comes into this courtroom by and through their representatives and they bring this case before you, the jury, for under our system of criminal justice you are the only forum that the people have to look to for the enforcement of our laws. And without laws and without the just enforcement of those laws, none of us are free. When you go back in that jury room in just a moment, you put aside any bias, any prejudice, any sympathy, wherever it may lie. You put it aside and you reach down inside and you make a fair, honest, conscientious decision—what have I been convinced of beyond a reasonable doubt or what have I not been convinced of. If it's something you've been convinced of beyond a reasonable doubt, that becomes a fact and you determine what the facts, and then you take the law as I've just given it to you and you apply it to those facts and there you let your verdict stand without bias, without prejudice, without sympathy, whether it be one of guilt or non-guilt. And if you'll do that then we will have had justice under the law in this case.
"There is a matter of law required by law to be taken up and ruled on outside the presence of this jury before you retire. I'm going to ask for a brief moment if you will not begin your deliberations. I'm going to ask you to please step back in the jury room and I need to have a conference with my lawyers and I'll see y'all back in chambers for just a moment and then we'll be back shortly and I'll send you out to deliberate. Do not begin at this point in time. The jury only is in recess." R. 1520.
The only portion of the court's oral charge to the jury which Hunt specifically complains of is the one sentence we have emphasized in the text.
We find no merit to Hunt's contention that the trial court's oral charge constituted a directed verdict for the state for the following reasons.
A.
First, the trial court's instruction on the Fair Campaign Practices Act was a correct statement of the law. In reaching that conclusion we find that the funds in question in this case were solicited on behalf of a non-profit corporation, after Hunt had been elected, and so were not "excess campaign funds." Section 17-22A-7 of the Fair Campaign Practices Act states:
"Amounts received by a principal campaign committee as contributions that are in excess of any amount necessary to defray expenditures of the candidate represented by such committee, may be used by such candidate to defray any ordinary and necessary expenses incurred by him or her in connection with his or her duties as a holder of office, may be contributed by him or her to any organization described in section 170(c) of Title 26 of U.S.Code, may be transferred to another political committee or may be used for any other lawful purpose." (Emphasis added).
The Ethics Law, Ala.Code 1975, § 36-25-5 et seq., states that no public official shall use his office to obtain direct personal financial gain. The Fair Campaign Practices Act became law in 1988. The Alabama Ethics Law had been enacted 15 years earlier, in 1973, and was the first ethics law in the history of the state. Both of these laws have a similar provision which deals with their interpretation in relation to other laws. The Ethics Law states: "This chapter shall be construed in pari materia with other laws dealing with the subject matter hereof, and repeals all laws and parts of laws in conflict herewith." Ala.Code 1975, § 36-25-30. The Fair Campaign Practices Act states: "It is the intention of the legislature by the passage of this chapter that its provisions be construed in pari materia with other laws regulating political contributions, corporations, or political contributions by corporations." Ala.Code 1975, § 17-22A-23. "In pari materia" means that the laws "must be construed with reference to each other." Black's Law Dictionary 1115 (6th ed. 1990).
It is a fundamental principle of judicial statutory construction that statutes should be read and construed in such a way as to give meaning to each of them, and to reconcile them if reasonable to do so. Schaefers v. Apel, 295 Ala. 277 , 328 So.2d 274 *1015 (1976). When reading the two statutes in pari materia, with reference to each other, as we must, we come to the inevitable conclusion that the trial court's charge was a correct statement of the law: using excess campaign funds for direct personal financial gain is a violation of the Ethics Law.
To support his position, Hunt relies on two opinions of the Attorney General. The Attorney General's opinion issued April 16, 1990, states, in pertinent part:
"This provision [The Fair Campaign Practices Act] specifically sets forth three ways in which excess funds may be lawfully used by a candidate and acknowledges that there may be other lawful ways in which the funds could be used.
"At present we are aware of one other way that funds may be used. The excess funds might be used as personal income by a candidate but he should consult the Alabama Revenue Department and the Internal Revenue Service. There may be other lawful purposes that we are unaware of; however, they must be reviewed on a case-by-case basis as they are presented."
The opinion of the Attorney General issued March 20, 1991, states in pertinent part:
"In a prior Opinion, this office stated that this provision ( Ala.Code, § 17-22A-7), [The Fair Campaign Practices Act] specifically set forth three ways that excess political contributions may lawfully be used and acknowledged that there may be other lawful purposes. Opinion to Hon. Perry A. Hand, Secretary of State, under date of April 16, 1990. We also stated that one of those lawful purposes may include using excess funds as personal income by a candidate, assuming that the candidate complies with all state and federal tax laws. If the Legislature did not intend for candidates to use campaign funds as personal income that could have been prohibited by specific language in the Act. Accordingly, while we do not condone a candidate's personal use of excess campaign funds, the Legislature has not made such use unlawful."
However, opinions of the Attorney General are not law.
"[W]ritten opinions of the Attorney General are not controlling. They are merely advisory and, under the statute [36-15-19, Code of Alabama 1975] such opinions operate only to protect the officer to whom it is directed from liability because of any official act performed by such officer as directed or advised in such opinion."
Broadfoot v. State, 28 Ala.App. 260, 261 , 182 So. 411 (1938). See also Holcombe v. Mobile County, 26 Ala.App. 151 , 155 So. 638 , cert. denied, 229 Ala. 77 , 155 So. 640 (Ala.1934).
Furthermore, neither the 1990 or the 1991 opinion of the Attorney General were issued to Hunt. Both of the opinions were issued after the commission of the acts in this case. Hunt cannot seek refuge in those opinions because Hunt's actions occurred before those opinions were issued. There is simply no credence to the notion that Hunt acted in reliance on those opinions. Moreover, even had those opinions been issued before the occurrence of the conduct in this case, they would not constitute a defense. These referenced opinions issued by the Attorney General are concerned solely with the application of the Fair Campaign Practices Act. They do not even mention the Ethics Law. Further, the opinions are expressly limited to a "candidate" for office. The Fair Campaign Practices Act applies to "candidates." The Ethics Law is much broader and applies to all "public officials." At the times pertinent to this case, Hunt was a public official as defined in § 36-25-1(11). A public official is:
"Any person elected to public office by the vote of the people at state, county or municipal level of government...." (Emphasis added).
The Ethics Law applied to Hunt. Reading the Fair Campaign Practices Act and the Ethics Law together, we can reach no other conclusion except that which the court charged the jury: "Using excess campaign funds for direct personal financial gain is not a `lawful purpose.'"
B.
Second, the objected to portion of the trial court's charge did not address an issue in the case presented by either the indictment or by the state's evidence. Again, we emphasize *1016 that Hunt was charged with using his public office to obtain direct personal financial gain in violation of the Ethics Law, not for violating the Fair Campaign Practices Act.
"A trial court has broad discretion in formulating its jury instructions, provided they are an accurate reflection of the law and facts of the case. Coon v. State, 494 So.2d 184 (Ala.Cr.App.1986), citing United States v. Padilla-Martinez, 762 F.2d 942 (11th Cir.1985).
"`Generally, the sufficiency of instructions must be determined by the facts in each case. It is the object and office of instructions to define for the jury, and to direct their attention to, the legal principles which apply to govern the facts, proved or presumed, in the case; and hence the instructions, whether given by the court of its own motion or by request, should be full, clear, and explicit, giving to the jury all the law so far as it relates to the issues proved or claimed to be proved, if such issues are sustained by any evidence or by any legitimate inference therefrom, and giving it in such a manner that the jury may not be misled or fail to understand the real issues. Moreover, the instructions should be a safeguard of fairness and impartiality and a guaranty of judicial indifference to individuals.' (Footnotes omitted.)" 551 So.2d at 1115 (emphasis added).
Bui v. State, 551 So.2d 1094 (Ala.Cr.App. 1988), affirmed, 551 So.2d 1125 (Ala.1989), vacated on other grounds, 499 U.S. 971 , 111 S.Ct. 1613 , 113 L.Ed.2d 712 (1991).
Although the charge dealt with no issue contained in the indictment, it did address an issue generated by Hunt. In a criminal jury trial, if it is apparent that the accused is seeking to establish a certain defense, or to present evidence in mitigation or justification, it most often is the better part of wisdom for the judge to give a charge on that subject even if the judge is not convinced that the defense as presented mitigates or justifies the criminal conduct. "Instructions containing abstract propositions of law which are inapplicable to the issues or facts are not ground for reversal, unless the defendant may reasonably be regarded as having been prejudiced thereby." Traywick v. State, 378 So.2d 1196, 1197 (Ala.Cr.App. 1979). See also Mack v. State, 348 So.2d 524 (Ala.Cr.App.1977). "It is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instruction as a whole and the trial record. Cupp v. Naughten, 414 U.S. [141], at 147, 94 S.Ct. [396], at 400-01 [ 38 L.Ed.2d 368, at 373 (1973)]." Estelle v. McGuire, 502 U.S. 62 , ___, 112 S.Ct. 475, 481 , 116 L.Ed.2d 385 (1991). See also Alexander v. State, 601 So.2d 1130 (Ala.Cr.App. 1992).
The instruction on the Fair Campaign Practices Act was given only after the issue was injected into the case by the defense so often as to cause a prudent judge to conclude that it warranted comment. The trial court gave this instruction to direct the jury to the issues involved in the case. The court had a duty to direct the jury to the real issues involved in the case, i.e. that for which Hunt was indicted.
"The charge to the jury should give them such instructions as may be required to enable them to understand the nature of the offense charged, and the questions which they are to decide ... Ordinarily the duty of the trial court is to instruct on the general principles of law applicable to the case...."
23A C.J.S. Criminal Law § 1190(b) (1961).
Although Hunt asserts in brief that this charge was tantamount "to a directed verdict for the state," the brief later states: "[E]ven if the charge were a correct statement of law under the Alabama Fair Campaign Practices Act, Guy Hunt was not charged with a violation of that statute and it was not cited in the indictment." Hunt's brief at p. 53.
Hunt should not be allowed to inject into his trial a defense that the funds raised after the election for the non-profit corporation were "excess campaign funds" and then predicate error on the trial court's advising the jury of the law as it related to that theory of the case. After reviewing the entire instruction to the jury and the record, we are convinced and hold that no error occurred here and that Hunt was not prejudiced *1017 as a result of the above instruction. Traywick, supra.
C.
In regard to the court's jury charge on campaign funds, Hunt further asserts that the legal principle of equitable estoppel warrants reversal in this case. He argues that the trial judge was estopped from giving the instruction concerning the Fair Campaign Practices Act after he had stated in a pretrial hearing that he understood that excess campaign funds could be used for personal use. In response, the state points to a portion of the record which occurred during Melvin Cooper's testimony in which the trial judge observed that upon reading the two statutes together, he could only conclude that excess campaign funds could not be used for direct personal financial gain, because that would be a direct violation of the Ethics law. In fact, the judge in the earlier hearing predicated his remarks by saying that he was not clear on the law as regarded excess campaign funds. We find this equitable estoppel argument to be without merit.
D.
Hunt also argues that the charge at issue could be likened to an ex post facto law. He asserts that he relied on the advisory opinions of the Attorney General which interpret the Fair Campaign Practices Act and state that excess campaign funds could be used as personal income. Hunt argues that these opinions made his conduct lawful. As we have noted, Hunt's criminal conduct occurred considerably before the issuance of the opinions by the Attorney General. Hunt cannot rely on opinions rendered after his conduct in order to invoke any constitutional prohibition against ex post facto laws.
E.
Hunt argues that the trial court erred in denying several of his written requested jury instructions. After the court gave its oral charge to the jury, the defense made the following objection: "We would renew our objection to that part of the oral charge that did charge on the unlawfulness of using excess campaign expenses to be a violation of the law." The only portion of the charge that Hunt objected to was the court's instruction that excess campaign funds could not be used for direct personal gain as such was a violation of the Ethics Law. No issues were preserved concerning other portions of the court's instructions to the jury, including written requested charges. As stated in Rule 21.2, A.R.Cr.P.:
"No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."
See also Jones v. State, 591 So.2d 569 (Ala. Cr.App.1991); Kyser v. State, 513 So.2d 68 (Ala.Cr.App.1987).
Nevertheless, in an abundance of caution, we will review these issues as if they had been preserved. The requested charge reads as follows:
"If you believe from the evidence that the Defendant used campaign funds to reimburse himself for past or present campaign indebtedness, you must acquit the Defendant."
In the court's oral charge, the trial court instructed the jury that excess campaign funds could lawfully be used to pay old campaign debts. Thus, the written requested charge was substantially given in the court's oral charge to the jury. (R. 1528). No error occurred in the court's refusal of the above requested charge. As Rule 21.1, A.R.Cr.P., states in part:
"The refusal of a requested written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge or in other charges given at the request of the parties."
"[A] refusal to give a requested written instruction can be error only if the same principles are not substantially covered in the *1018 court's oral charge to the jury." Williams v. Allstate Ins. Co., 591 So.2d 38, 43 (Ala.1991) (emphasis added). See also Powell v. State, 608 So.2d 411 (Ala.Cr.App.1992); Reuther v. City of Leeds, 599 So.2d 1246 (Ala.Cr.App. 1992); Dill v. State, 600 So.2d 343 (Ala.Cr. App.1991), affirmed, 600 So.2d 372 (Ala.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1293 , 112 L.Ed.2d 684 (1993). "If a requested charge is subsumed in the court's oral charge, the refusal of the charge is not error." Ex parte Marek, 556 So.2d 375, 383 (Ala.1989).
Hunt also argues that the court erred in refusing the following requested charge:
"The Court charges the Jury, that the Campaign Reporting Act that was in effect until July 1, 1988, was entitled the `Alabama Corrupt Practices Act.' The Corrupt Practices Act did not regulate the use of campaign contributions after an election."
This instruction had no application to the facts or issues of this case. The election was over and Hunt was "elected" before the solicitations for funds for the non-profit corporation were mailed out. Consequently, none of the funds raised in response to Hunt's fund drive can reasonably be called "excess campaign funds." At the time of the actual use of office for direct personal financial gain, which was the subject of this indictment, the Corrupt Practices Act contained in § 17-22-1 et seq. had been repealed and was no longer the law. That act had been replaced by the Fair Campaign Practices Act, § 17-22A-7. The trial court did not err in denying this requested instruction.
We conclude that the trial court did not commit any reversible error in refusing the requested charges.
III. THE STATUTE OF LIMITATIONS
Hunt contends that his prosecution was barred by the three-year statute of limitations applicable to a prosecution under the Alabama Ethics Law and that the trial court committed reversible error by refusing to charge the jury on the statute of limitations.
A.
A prosecution may be commenced by the finding or returning of an indictment. Ala.Code 1975, § 15-3-7; Rule 2.1, A.R.Cr.P. The indictment in the instant case was returned by the Montgomery County grand jury on December 28, 1992. The statute of limitations applicable in this case is three years. Britain v. State, 518 So.2d 198 (Ala. Cr.App.1987), cert. denied, 486 U.S. 1008 , 108 S.Ct. 1736 , 100 L.Ed.2d 199 (1988). "Violation of the Alabama Ethics Act is a felony, § 36-25-27(a), to which applies the three-year statute of limitations applicable to felonies in general. § 15-3-1." Id. at 201. Thus, the state, as part of its burden of proof, was required to prove that the offense giving rise to the indictment in the instant case was committed on or after December 28, 1989. If such is not shown, the state fails to make out a case, and the prosecution would be barred by the statute of limitations. See Stoner v. State, 418 So.2d 171 (Ala.Cr.App.), cert. denied, 418 So.2d 184 (1982), cert. denied, 459 U.S. 1128 , 103 S.Ct. 764 , 74 L.Ed.2d 978 (1983). A statute of limitations defect is considered "jurisdictional" in the sense that the trial court is not authorized to pronounce the accused guilty of a time-barred offense. Cox v. State, 585 So.2d 182, 193 (Ala.Cr.App. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1676 , 118 L.Ed.2d 394 (1992).
The indictment charges a violation of § 36-25-5, the use of an official position or office for direct personal financial gain. That statute provides:
"No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."
The gravamen of the offense is the prohibition of the use of an official position to obtain a direct personal financial gain. "Obtains" is defined in § 13A-8-1(6), as follows: "In relation to property, to bring about a transfer or purported transfer of a legally recognized interest in the property, whether to the obtainer or another." Although § 36-25-1, the definition section of the Act, contains no definition *1019 for "gain" or "personal financial gain." "[I]t is clear from the policy behind this statute, that the term `gain' is not intended to be a precise or comparative term, because it is the appearance of impropriety that this statute seeks to avoid." Chandler v. State, 615 So.2d 100, 106-107 (Ala.Cr.App.1992), cert. denied, 615 So.2d 111 (Ala.1993). However, "by its own language § 36-25-5(a) prohibits only those uses of official positions or offices that result in financial gain that is `direct' and `personal.'" Lambert v. Wilcox County Commission, 623 So.2d 727 (Ala. 1993). See also Opinion of the Justices No. 317, 474 So.2d 700, 703 (Ala.1985) (wherein the court, in construing the phrase "personal or private interest," quoted the "pertinent and persuasive authorit[y]" of an opinion of the Attorney General of Delaware which states that "[i]t has been held by the courts, that for an interest to be `personal or private' it must be a direct and immediate interest").
Hunt contends that the last possible date for the obtaining of a direct personal financial gain by him occurred on November 12, 1988, when the Cullman Savings and Loan Association Friends of Guy Hunt "political" account (# 15385-8) was closed and merged into his personal account (# 15386-6). Upon this assertion, Hunt alleges that the offense, if any, occurred beyond the three-year statute of limitations period and was barred from prosecution.
On the other hand, the state responds that the Cullman Savings and Loan Association "political" account (# 15385-8) was not closed on November 12, 1988, but remained open and in existence on December 29, 1989, a date within the three-year statute of limitations period by one day. The state argues that this date is significant because it was on this date that the last transfer of funds ($11,700) was made from the "political" account to Hunt's personal checking account in the AmSouth Bank and that those funds were used to make a payment on a note and mortgage on Hunt's farm.
A brief review of the pertinent banking transactions is helpful in understanding this issue. The evidence shows that on November 26, 1986, an account was opened in the Union Bank and Trust Company of Montgomery to receive the funds being raised to pay the expenses of the Hunt "inauguration and transition." On January 8, 1987, another account in that same bank, designated "Friends of Guy Hunt," was opened, and approximately $394,573 of the inaugural and transition funds being received from solicitations was diverted into that checking account. On February 12, 1987, $100,000 was transferred by check from the Friends of Guy Hunt account at the Union Bank and Trust Company in Montgomery to a checking account at the First Federal Savings and Loan of Cullman, titled "Friends of Guy Hunt, Guy Hunt Reserve." From February 16, 1987, until August 2, 1988, numerous checks were drawn on this account to pay personal expenses and debts of Hunt and his family. On February 14, 1987, a savings account was opened in the Cullman Savings and Loan Association, titled "Friends of Guy Hunt" (# 15385-8). On that same date $100,000 was transferred into that account by check from the Friends of Guy Hunt account in the Union Bank and Trust Company of Montgomery. From October 16, 1987, until December 29, 1989, the bulk of these funds was withdrawn from this account, usually in the form of a cashier's check, and deposited into Hunt's personal account at AmSouth Bank in Cullman. After the funds were deposited in the personal account, they were periodically drawn from that account to pay the personal debts and expenses of Hunt and his family.
On February 14, 1987, the date that the Friends of Guy Hunt account (# 15385-8) was opened in the Cullman Savings and Loan Association [hereinafter the Association], a personal savings account, titled "Guy Hunt or Mrs. Guy Hunt" (# 15386-6) was opened in the same Association. Guy Hunt, Rosie Blocher, and Edna Earle Hicks were initially the authorized signatories on the Friends of Guy Hunt account. Each was authorized to draw upon the account, and Guy Hunt was the sole authorized signatory on the Guy Hunt or Mrs. Guy Hunt personal account. On November 12, 1988, a single or consolidated signature card was created by the Association, showing "Guy Hunt or Mrs. Guy Hunt" as the name on the two accounts and carrying forward Guy Hunt as the only authorized *1020 signatory on the two accounts. The two account numbers were retained on the signature card. The old signature card for the Friends of Guy Hunt account has written on it "Names Changed 11-12-88." The records of the Association, titled "Savings History Report," show that the Association considered the two accounts to be separate and continuing accounts and that the withdrawal of the sum of $11,700 on December 29, 1989, the transfer of our immediate concern, came from the account which had been titled the Friends of Guy Hunt account, # 15385-8. The Association continued to keep separate ledger sheets on both accounts. After November 12, 1988, when the signature cards were consolidated and Hunt became the sole signatory on account # XXXXX-X, he continued to draw funds from that account, utilizing cashier's checks to transfer funds from that account to his personal checking account at the AmSouth Bank of Cullman. The final withdrawal from the account, which occurred on December 29, 1989, in the amount of $11,700, was in the form of a cashier's check made payable to Guy Hunt or Mrs. Guy Hunt and deposited into Hunt's personal checking account at the AmSouth Bank. Those funds were immediately used to cover a $16,297.23 check drawn on the personal account to make a payment to the Merchant's Bank of Hanceville on a note and mortgage on Hunt's farm.
We find without merit and contrary to the evidence Hunt's contention that, if at all, he received direct personal financial gain on November 12, 1988, because the Friends of Guy Hunt account was closed and simultaneously a personal account was opened. The witnesses' testimony and the records themselves clearly show that the account was not closed or merged on November 12, 1988, as Hunt contends, but that it remained in existence well after December 29, 1989, the date of the withdrawal of $11,700. The record refutes any contention that, by the bank's notations of November 12, there was any transfer of a legally recognized interest in the account to Hunt. No transfer occurred because the interest held by Hunt after November 12 was the same interest he held before November 12. By the clear language and intent of the statute, we find that the elimination of Hicks and Blocher as signatories on the Friends of Guy Hunt account on November 12 did not transfer to Hunt a direct and personal financial gain.
A direct and personal financial gain from the inaugural and transition funds did occur on December 29, 1989, when Hunt withdrew $11,700 from account #XXXXX-X, deposited those funds in his personal checking account, and used the funds to make a payment on the note and mortgage on his farm. We further note that this same transaction violated the Ethics Act because Mrs. Hunt was a cosignee on the note and mortgage and as such, being a member of Hunt's family, she received a direct personal financial gain on that date (as did a business with which Hunt was associated, the farm.) We find that the prosecution met its burden of proof because it presented evidence showing that the offense charged in the indictment occurred on December 29, 1989, before the three-year statute of limitations period had expired.
B.
Hunt contends that the trial court committed reversible error by refusing to give the following requested written instruction number 12 to the jury.
"I charge you that the indictment in this cause was returned on December 28, 1992. I further charge you that the statute of limitations in this case is three (3) years and, therefore, any offense charged in that indictment is barred by the statute of limitations if the alleged offense occurred prior to December 28, 1989.
"I charge you, therefore, that if you find from the evidence that the offense alleged in the indictment occurred prior to December 28, 1989, you must acquit the Defendant."
While there is some question as to whether this point was properly preserved for review, the ultimate issue here is whether the questions of the statute of limitations was a question of law for the trial court to decide or a question of fact for the jury to determine. If the above requested charge had been given, it would have submitted the question to the jury. Hunt asserts that whether the state *1021 had met its burden of proving that the offense occurred within three years preceding the indictment was a factual issue which should have been submitted to and decided by the jury.
Hunt, by a pre-trial motion, sought dismissal of all the charges on the ground that the statute of limitations had expired. After a hearing, the trial court granted the motion as to Counts II through XIII, but denied the motion as to Count I. Counts II through XIII were theft-related counts, and Count I alleged a violation of the State Ethics Law. The trial court's ruling is as follows:
"And that brings me to the motion to dismiss the indictments relating to the statute of limitations. We're dealing with two statutes here, one requiring knowingly obtaining or exerting unauthorized control over property, and the other requiring that certain—prohibiting certain people from obtaining direct personal financial gain for himself. This Court is of the opinion that the statutes are different, they have different elements involved and because of the different elements involved that there are going to be different rulings, and you'll see that in just a minute.
"As to Count I in the indictments for each of the Defendants, Count I concerning the Ethics related charge in which the question concerning whether or not it's state revenue or not state revenue, whether or not there would be a six year statute versus a three does not apply here. However, the Court is of the opinion because of the elements of the Ethics charge that your motion to dismiss due to statute of limitations is due to be denied.
"As to Counts II through XIII relating to theft, theft by deception, receiving stolen property, all alleged in different forms from different possible sources such as Inaugural Fund, Inc., Alabama Inaugural Fund or the State of Alabama, the question must be decided as to which statute applies, whether or not the six year statute of limitations applies as relating to state revenue or county revenue or the three year general theft statutes apply, which is a three year statute. The Court is of the opinion that in interpreting the statute, that the state revenue six year statute does not apply to this fact situation and therefore we are looking to see whether or not the alleged offenses occurred within three years. It is this Court's opinion that the motion to dismiss on Counts II through XIII to each Defendant should be granted and I hereby grant your motion and all of those theft and theft related counts are hereby dismissed from the indictment; and what we have left at this point in time is the allegation of an Ethics violation. It's the Court's opinion that due to the elements of the offense of theft that any control or gain, based on the Defense's proof of a 1988 change of the account was done, takes it outside the statute of limitations and I hereby grant your motion to dismiss on that."
Hunt did not raise the issue of whether the statute of limitations question was one of fact or of law prior to the charge conference when requested jury instruction 12 was considered by the trial court. In refusing to give the requested charge, the trial court stated, "I think this matter is a question of law...." R-1260.
The general rule is that where a disputed question of fact is involved, it is for the jury to say whether a prosecution was begun within the period of limitations, but all questions of law as to limitations are for the court. Gambling v. State, 22 Ala.App. 442 , 116 So. 507 (1928); Horn v. State, 19 Ala. App. 572 , 99 So. 58 (1924); Cook v. State, 17 Ala.App. 611 , 88 So. 58 (1920); Commonwealth v. Groff, 378 Pa.Super. 353 , 548 A.2d 1237 (1988); Commonwealth v. Hoffman, 263 Pa.Super. 442 , 398 A.2d 658 (1979); 23A C.J.S. Criminal Law § 1132 (1961).
In ruling as it did, the trial court obviously found as a matter of law that Count I required proof that Hunt or his family or a business with which he was associated obtained a direct personal financial gain before the crime was complete as distinguished from obtaining or exerting unauthorized control over property which would be required proof in Counts II through XIII, the theft counts. The trial court recognized that it was dealing with two separate statutes with different elements. In deciding the statute *1022 of limitations issue, the trial court obviously found as a matter of law that Hunt or his family or a business with which he was associated last received direct personal financial gain on December 29, 1989, as contended by the state.
We conclude, after reviewing the evidence, that the facts pertinent to the question of whether the indictment was returned within the period of the statute of limitations were not in dispute; the facts relating to the handling of the various accounts and the withdrawal and use of the funds by Hunt were unrefuted and, in fact, were admitted. The question of whether the statutory period had expired was a question of law for the court and one which the trial court determined prior to trial. We agree with the trial court's decision. Its refusal to grant requested jury instruction 12 was correct.
IV. THE INDICTMENT
A.
Hunt maintains that the trial court committed reversible error in failing to sustain his motion to dismiss the indictment. This issue is preserved for our review. In a supplement to his pretrial motion to dismiss, Hunt alleged that the indictment was "insufficient to charge a criminal offense in that it fails to allege that Hunt knowingly or willfully violated § 36-25-5, Ala.Code (1975), as required by § 36-25-27, Ala.Code (1975)." C.R. 485-486. In addition, Hunt filed a motion for more definite statement pursuant to Rule 13.2(e), A.R.Cr.P. in which this issue was presented. C.R. 477, 481. In response to this motion, the Attorney General filed a lengthy written response with extensive exhibits. C.R. 543-586.
Appellate courts review the legal sufficiency of indictments de novo. United States v. Schmidt, 947 F.2d 362, 369 (9th Cir.1991).
"The Federal Rules of Criminal Procedure require that an indictment be a `plain, concise, and definite written statement of the essential facts constituting the offense charged.' An indictment need only contain those facts and elements of the alleged offense necessary to inform the accused of the charge so that she may prepare a defense and invoke the Double Jeopardy Clause when appropriate. Courts will normally find an indictment insufficient only if it fails to state a material element of the offense.
"In determining whether an indictment sufficiently informs the defendant of the offense, courts give the indictment a common sense construction and generally will uphold an indictment even if it contains a technical error or omission. Validity of the indictment turns on whether it conforms to minimum constitutional standards, not whether the indictment could be framed more satisfactorily. Although an indictment that tracks the statutory language defining an offense is usually sufficient, reliance on statutory language alone will not cure a fatal defect in an indictment.
".... The availability of a bill of particulars will not cure an indictment that omits an essential element of the offense."
Daniel F. McInnis et al., Project, Twenty-Second Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1991-1992, 81 Geo.L.J. 853, 1076-1081 (1993) (footnotes omitted).
The indictment charged in pertinent part that Hunt
"while a public official or employee, to wit: the Governor of the State of Alabama, did use an official position or office, to wit: the Office of the Governor of the State of Alabama, to obtain direct personal financial gain, to wit: two hundred thousand dollars ($200,000) in lawful currency and/or coinage of the United States of America and/or checks, a better description of which is unknown to the Grand Jury, for himself or his family or any business with which he or a member of his family is associated, said use and gain not being specifically authorized by law in violation of Section 36-25-5 of the Code of Alabama, against the peace and dignity of the State of Alabama." C.R. 26.
The statute under which Hunt was indicted, Ala.Code 1975, § 36-25-5(a), provides:
*1023 "No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."
Here, the indictment parroted the language of § 36-25-5(a). However, the penalty for this conduct is prescribed by § 36-25-27(a)(1) which requires that the conduct be "knowingly or willfully" committed. Section 36-25-27(a)(1) provides:
"Any person subject to this chapter who knowingly or willfully violates any provisions of this chapter other than the requirements of financial and lobbying disclosure shall be found guilty of a felony and shall be fined not more than $10,000.00 or less than $2,001.00, or shall be imprisoned for not more than 10 years but not less than two years or any combination thereof." (Emphasis added).
It is undisputed, both at trial and on appeal, that "knowingly or willfully" is an element of the offense defined in § 36-25-5(a).
"The appellant argues that the indictment charging him with six counts of violating the State Ethics Law are void, because the indictment used the words `unlawfully' and `feloniously' to allege mens rea rather than `knowingly.' The appellant cites the punishment section of this act, § 36-25-27, Code of Alabama 1975, which uses the terms `knowingly' and `wilfully' to define the requisite mens rea necessary to commit the offense, and he argues that those terms were therefore required in framing the indictment. His argument is based on Davis v. State, 68 Ala. 58 (1880), which involved an indictment charging a violation of a statute defining as unlawful the transportation of cotton after dark. A subsequent section of that statute made it a crime to `knowingly' violate any other section of that statute. The Court held that this element of knowledge must be included and charged in the indictment.
"`Sometimes statutes make it a criminal offense for a public officer to be directly or indirectly concerned in any agreement or contract for any improvement to be made at the public expense, or any other contract made by the officer in his official capacity. Even in the absence of an express statement that criminal intent is a necessary element of the statutory offense, the statutes, in the absence of a clear indication to the contrary, are construed as requiring that the officer's concern in the contract be corrupt.'
"63A Am.Jur.2d Public Officers and Employees § 411.
"Thus, it is clear that in the State Ethics Law such a mens rea is impliedly included and, in the present case, was proved. According to § 13A-2-4(b), Code of Alabama 1975:
"`Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability.'
"Clearly, this offense is not one involving strict liability."
Chandler v. State, 615 So.2d 100, 107-08 (Ala.Cr.App.1992), cert. denied, 615 So.2d 111 (Ala.1993).
An issue similar to the situation here was presented in Davis v. State, 68 Ala. 58 (1880), the Alabama Supreme Court found the indictment defective for failing to charge that the offense was committed knowingly. In that case, "[t]he indictment charged that the defendant `did, after sundown, and before sunrise of the succeeding day, transport or remove in Dallas county, cotton in the seed.'" Davis, 68 Ala. at 59 . Section two of the legislative act in question provided "that it shall not be lawful for any person to transport or move, after sunset and before sunrise of the succeeding day, ... [within specified localities] any cotton in the seed." Davis, 68 Ala. at 61 . Section five of that act made "it a *1024 felony where any one `knowingly violates' any of the provisions of the act, and affix[ed] punishment by confinement in the penitentiary." Davis, 68 Ala. at 61 .
"We are of opinion, however, that the indictment is defective in another respect. It fails to charge that the defendant `knowingly' committed the act for which he is criminally indicted. The statute is highly penal in its character, and creates a new crime unknown to the common law. Section 5 makes knowledge of the facts essential to the crime, deeming him alone guilty who knowingly violates any of the provisions' of the act. The general rule of pleading is, that every indictment, information or other criminal proceeding, ought to contain all that is material to constitute the crime, or every necessary ingredient of the offense, stated with precision, or at least certainty and in the customary forms of law.—3 Greenl.Ev. § 10; Beasley v. State, 18 Ala. 535 . A crime is committed only by a combination of act and intent. `No amount of intent alone is sufficient, neither is any amount of act alone; the two must combine.'—1 Bish.Cr.Law, § 430 (6th ed.). In the particular crime here charged, there are forcible reasons for the application of this rule requiring the indictment to state the guilty scienter. The transportation of the prohibited commodity may have been done ignorantly. The defendant may honestly have believed that he was without the prohibited jurisdiction.
"For this defect, the judgment of the Circuit Court must be reversed and the case remanded."
Davis, 68 Ala. at 65 .
In Associated Industries of Alabama, Inc. v. State, 55 Ala.App. 277, 283 , 314 So.2d 879 , cert. denied, 294 Ala. 281 , 314 So.2d 901 (1975), the defendant was indicted for violating the Alabama Corrupt Practices Act. Under that act, any person who "wilfully" failed or refused to any act required under the act was guilty of a misdemeanor [3] . This Court held, among other things, that the indictment was void because it did not allege any criminal intent:
"He whose conduct is defined as criminal is one who `willfully' fails to do any of the acts denounced by the Corrupt Practices Law, and willfulness is an essential and constituent element of the charge in an indictment brought under said law. The indictment failing to so charge renders it fatally defective upon apt demurrer taking the point, as was done in this case."
Associated Industries, 55 Ala.App. at 283 , 314 So.2d 879 . However, in denying certiorari, the Alabama Supreme Court did not respond to any particular issue addressed by the Court of Criminal Appeals but merely issued a general "disclaimer":
"Writ denied. By denying the writ, we point out that writs of certiorari are frequently denied without any consideration of the merits. A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy nor should our denial of the writ be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Criminal Appeals."
Associated Industries of Alabama, Inc. v. State, 294 Ala. 281, 281 , 314 So.2d 901 (1975).
Application of Davis and Associated Industries to the facts of this case would require a reversal. However, the decision of the Alabama Supreme Court in Ex parte Harper, 594 So.2d 1181 (Ala.1991), cert. denied, ___ U.S. ___, 113 S.Ct. 330 , 121 L.Ed.2d 248 (1992), requires that we reject the holdings of Davis and Associated Industries .
In Harper , the Alabama Supreme Court held that an indictment alleging that the defendant "unlawfully" distributed a controlled substance was not void for failing to *1025 allege that the distribution was "knowingly" done. The Court recognized that knowledge was an element of the offense which should have been alleged in the indictment, but it held that the defendant had failed to raise a timely objection to that omission from the charge. The Court decided that "[e]ven if [the defendant] had a valid objection to the statement of the charge, and we find that he did not have a valid objection in this case, he failed to raise an objection timely." Harper, 594 So.2d at 1194 (emphasis added).
The court apparently had two reasons for determining that the defendant "did not have a valid objection" to the Harper indictment, despite the omission of the knowledge allegation. First, the court found it "important," 594 So.2d at 1182 , that "the procedure for preferring an indictment was governed by the provisions of Temporary Rule 15.2 [now Rule 13.2, A.R.Cr.P.]." Under that rule, "[t]he indictment or information shall be a plain, concise statement of the facts in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce proper judgment."
"The general rule in Alabama, even before the adoption of Temporary Rule 15 (now Rule 13), was that it was sufficient to charge the elements of the statutory offense in the words of the statute, provided the statute prescribed with definiteness the constituent elements of the offense. Ex parte Allred, 393 So.2d 1030 (Ala.1980); see, also, cases collected at 12 Ala.Dig., Indictment and Information, Key No. 110(3). The crucial question, of course, is whether the indictment sufficiently apprises the accused with reasonable certainty of the nature of the accusation made against him so that he may prepare his defense, that he may be protected against a subsequent prosecution for the same offense. See Hochman v. State, 265 Ala. 1 , 91 So.2d 500 (1956), in which the Court distinguished Gayden v. State, 262 Ala. 468 , 80 So.2d 501 (1955), a leading case on the sufficiency of an indictment, in which a divided Court held that two counts of an indictment against Gayden were defective and subject to a demurrer."
Harper, 594 So.2d at 1183 . The Court further noted that it "has liberalized criminal pleading and has provided a method for defendants to obtain a more definite statement of the charges [pursuant to Rule 13.2, A.R.Cr.P.]." Harper, 594 So.2d at 1183 .
Second, the court found that Temporary Rule 15.5(c)(2) [now Rule 13.5(c)(2)] provides for a "harmless error" review of a defective charging instrument.
"The Court of Criminal Appeals correctly held, in Stewart [ v. State, 580 So.2d 27 (Ala.Cr.App.1990)], that if a statute requires that the offense be `knowingly' committed, then the indictment should allege that it was so committed, and if an objection to the indictment is raised by the trial court or the defendant `during the pendency of the proceeding,' the indictment is defective and would be subject to dismissal, unless otherwise provided for in Temporary Rule 15.5(c)(2) (now Rule 13.5(c)(2)), which states, in part, that `[n]o charge shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, arrested, or in any manner affected, for any defect or imperfection in the charge which does not tend to prejudice the substantial rights of the defendant upon the merits.'
".... Even if he had a valid objection to the statement of the charge, and we find that he did not have a valid objection in this case, he failed to raise an objection timely.
"Based on the foregoing, we are clear to the conclusion that the defendant's constitutional right `to demand the nature and cause of the accusation' (Art. 1, § 6, Const. of Ala.1901) has been fulfilled in this case. The indictment is not void for failing to allege that the offense was committed `knowingly.'
"This opinion should not be construed, however, as stating that the State may not be required to prove that the defendant knew of the presence of a controlled substance,.... [K]nowledge must be proved in order to establish that an offense was committed.....
*1026 "Based on the above, we hold that the indictment was not void for its failure to allege that the distribution of the controlled substance was `knowingly' done. We further hold that the petitioner's objection was untimely, because it was not made `during the pendency of the proceeding.'" (Emphasis added).
Harper, 594 So.2d at 1194-95 .
From the above discussion we draw the following conclusions: 1) Knowledge or willfulness is an element of the offense defined in Ala.Code 1975, § 36-25-5. 2) Under Davis, supra, knowledge or willfulness should have been alleged in the indictment. 3) After the adoption of Rule 13, A.R.Cr.P. and the opinion of the Alabama Supreme Court in Harper , the failure to allege criminal intent in an indictment does not necessarily render an indictment void and in some cases does not even render it objectionable even in those cases where criminal knowledge is necessary for the proof of the crime charged.
Frankly, Harper raises many more questions than it answers. However, this Court is bound by the decisions of the Alabama Supreme Court. Ala.Code 1975, § 12-3-16.
We conclude that Ex parte Harper, rather than Davis or Associated Industries , controls the result in this case. Hunt was given a more definite statement of the charges against him, and the State presented evidence from which the factfinder could infer that Hunt committed the offense knowingly and wilfully. Therefore, any imperfection in the indictment did not "tend to prejudice [Hunt's] substantial rights upon the merits." Rule 13.5(c)(2), A.R.Cr.P.
B.
Hunt argues that the statute and the indictment under which he was charged are so vague and indefinite as to deprive him of his rights as guaranteed by Article One, Section six of the Constitution of Alabama, 1901, and under the Sixth Amendment to the Constitution of the United States. This argument was preserved in Hunt's pretrial motion to dismiss and in his motion for a more definite statement.
"The indictment or information shall be a plain, concise statement of the charge in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment."
Rule 13.2, A.R.Cr.P.
As demonstrated in Part IV A of this opinion, the indictment was constitutionally sufficient and closely tracked the language of Ala.Code 1975, § 36-25-5(a). "The government need only allege the `essential facts necessary to apprise a defendant of the crime charged' and not its theory of the case." United States v. Schmidt, 947 F.2d 362, 369 (9th Cir.1991).
While the sufficiency of a criminal indictment is determined from its "face" and within "the four corners" of the indictment, any "vagueness" or "uncertainty" in Hunt's understanding of the indictment was removed by the Attorney General's lengthy response to Hunt's motion for a more definite statement.
As part of this argument, Hunt argues that "[t]he failure of the legislature to define the words `use' and `to obtain direct personal financial gain' leave one in a quandary if the law is that the indictment and the language of the statute are sufficient." Hunt's brief at 71.
In Allen v. State, 380 So.2d 313, 326 (Ala. Cr.App.1979), cert. denied, 380 So.2d 341 (Ala.), cert. denied, 449 U.S. 842 , 101 S.Ct. 121 , 66 L.Ed.2d 49 (1980), this Court stated: "The Alabama Supreme Court in Comer v. City of Mobile, Ala., 337 So.2d 742 (Ala.1976), considered the constitutionality of Act No. 130 of the Alabama Legislature, Regular Session 1975, and found the Act `not vague or overbroad.'" However, Comer was not concerned with the arguments here presented.
"`The doctrine of vagueness, ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451 , 59 S.Ct. 618 , 83 L.Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, *1027 see United States v. National Dairy Products Corporation, 372 U.S. 29 , 83 S.Ct. 594 , 9 L.Ed.2d 561 (1963).
"`Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617 , 74 S.Ct. 808, 811 , 98 L.Ed. 989, 996 (1954). A vague statute does not give adequate "notice of the required conduct to one who would avoid its penalties," Boyce Motor Lines v. United States, 342 U.S. 337, 340 , 72 S.Ct. 329, 330 , 96 L.Ed. 367, 371 (1951), is not "sufficiently focused to forewarn of both its reach and coverage," United States v. National Dairy Products Corporation , 372 U.S. [29] at 33, 83 S.Ct. [594] at 598, 9 L.Ed.2d [561] at 566 [(1963)], and "may trap the innocent by not providing fair warning," Grayned v. City of Rockford, 408 U.S. 104, 108 , 92 S.Ct. 2294, 2298 , 33 L.Ed.2d 222, 227-28 (1972).
"`As the United States Supreme Court observed in Winters v. New York, 333 U.S. 507 , 68 S.Ct. 665 , 92 L.Ed. 840 (1948):
"`"There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt."'"
"` 333 U.S. at 515-16 , 68 S.Ct. at 670 , 92 L.Ed. [at] 849-50 [citations omitted].'
" McCrary v. State, 429 So.2d 1121, 1123-24 (Ala.Cr.App.1982), cert. denied, 464 U.S. 913 , 104 S.Ct. 273 , 78 L.Ed.2d 254 (1983)."
McCall v. State, 565 So.2d 1163, 1165 (Ala.Cr. App.1990).
"It is well settled that, in order to pass constitutional muster, a penal statute must `define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.' Kolender v. Lawson, 461 U.S. 352, 357 , 103 S.Ct. 1855, 1858 , 75 L.Ed.2d 903 (1983) (citations omitted).
"`Due process requires that all "be informed as to what the State commands or forbids," Lanzetta v. New Jersey, 306 U.S. 451, 453 , 59 S.Ct. 618, 619 , 83 L.Ed. 888 (1939), and that "men of common intelligence" not be forced to guess at the meaning of the criminal law. Connally v. General Construction Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926).'
" Smith v. Goguen, 415 U.S. 566, 574 , 94 S.Ct. 1242, 1248 , 39 L.Ed.2d 605 (1974)."
Senf v. State, 622 So.2d 435 (Ala.Cr.App. 1993).
Here, § 36-25-5(a), the statute under which Hunt was indicted and convicted, provides fair warning of what is forbidden. See Rose v. Locke, 423 U.S. 48 , 96 S.Ct. 243 , 46 L.Ed.2d 185 (1975). Clearly, this section informs ordinary people of the prohibited conduct. See Wright v. State, 599 So.2d 637, 638 (Ala.Cr.App.), cert. denied, 609 So.2d 452 (Ala.1992).
Furthermore, Hunt has no legitimate ground to complain that this statute is unclear as to his conduct. "Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand." Jordan v. State, 411 So.2d 816, 818 (Ala.Cr.App. 1981).
"[B]ecause `[t]he essential purpose of the "void for vagueness" doctrine is to warn individuals of the criminal consequences of their conduct,' Jordan v. De George, 341 U.S. 223, 230 , 71 S.Ct. 703, 707 , 95 L.Ed. 886 (1951), `[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness,' Parker v. Levy, 417 U.S. 733, 756 , 94 S.Ct. 2547, 2562 , 41 L.Ed.2d 439 (1974), `even though the statute may well be vague as applied to others,' Aiello v. City of Wilmington, 623 F.2d 845, 850 (3d Cir.1980). Therefore, a defendant who challenges a statute on the grounds of vagueness `must demonstrate that the statute under attack is vague as applied to his own conduct, regardless of the potentially vague applications to others.' Aiello, 623 F.2d at 850 (emphasis *1028 added). Accord Rode v. Dellarciprete, 845 F.2d 1195, 1199-1200 (3d Cir.1988)."
Senf, 622 So.2d at 437 (footnote omitted). Hunt has failed to meet that burden.
Regarding the definitions of words found in the Ethics Act: The word "obtains" is defined in Ala.Code 1975, § 13A-8-1(6) [4] . That definition was given the jury in the oral charge of the trial court.
"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says." IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344, 346 (Ala.1992). "There is another generally accepted canon of statutory construction, which is that where there is nothing to indicate to the contrary, words in a statute will be given the meaning which is generally accepted in popular, everyday usage." Holloway v. State, 262 Ala. 437, 440 , 79 So.2d 40 (1955).
We reject Hunt's arguments that, "[a]s written, the statute could be taken to untold limits," and the "Ethics Act vests almost absolute discretion in the Attorney General to decide what constitutes using one's office for direct personal financial gain." Hunt's brief at 73 and 74. "That a statute might be susceptible of misapplication does not necessarily result in its unconstitutionality." Comer, 337 So.2d at 750 . The hypothetical situations posed by Hunt are unreasonable and far-fetched and are rejected for that reason. See Lambert v. Wilcox County Commission, 623 So.2d 727 (Ala.1993) ("the phrase `direct personal financial gain' in § 36-25-5(a) can only mean, as regards the facts of this case, `an interest affecting the legislator individually or as a member of a small group.'"). See also Opinion of the Justices No. 317, 474 So.2d 700, 704 (Ala.1985) (construing the phrase "personal or private interest").
"Where, as here, this Court is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained."
Ex parte Holladay, 466 So.2d 956, 960 (Ala. 1985).
Any interpretation of "direct personal financial gain" must strike
"the balance intended by the legislature between the policy of eliminating conflicts of interest and the policy of recruiting and retaining those persons best qualified to serve in government. In § 36-25-2(b), the legislature states that while the purpose of the Ethics Law is to eliminate conflicts between the private interests of public officials or employees and their public duties as such, the `legal safeguards against conflicts of interest must be so designed as not unnecessarily or unreasonably to impede the recruitment and retention by the government of those men and women who are best qualified to serve it.'"
Lambert, 623 So.2d at 730 ("Any broader view of `direct personal financial gain' would seriously impair not only the ability of county commissions to attract and retain qualified officials, but also their ability to deal with fiscal problems generally."). "We are deeply mindful of the principle that criminal statutes are to be strictly construed, but adherence to strict construction does not require an unreasonable interpretation, an interpretation that the legislature could not have intended." Horsley v. State, 374 So.2d 363, 372 (Ala.Cr. App.1978), affirmed, 374 So.2d 375 (Ala.1979), vacated on other grounds, Horsley v. Alabama, 448 U.S. 903 , 100 S.Ct. 3043 , 65 L.Ed.2d 1133 (1980). See Ala.Code 1975, § 13A-1-6 (criminal statutes "shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law....").
*1029 We agree with Hunt that "[t]he focus of the Ethics Act was not on the receipt of or the use of campaign contributions." Hunt's brief at 73. However, Hunt's conduct fell well within the prohibitions of the Ethics Act.
"Appellant maintains that the legislature, in passing the Ethics Act, did not intend that acts such as appellant committed be governed by the Act. Appellant emphasizes portions of the Act that state its purpose is to prevent conflicts of interests between a public official's duties of office and his private interests. See § 36-25-2, Code of Alabama, 1975. Appellant argues that there was no conflict of interests and that the Act was not intended to apply to the facts presented in this case.
"We do not agree.
"Appellant correctly states that the Ethics Act itself, in § 36-25-2, enunciates the legislative intent behind the statute. It is also true that the words `conflicts of interest' are found in this section. However, from a reading of the introductory sentence and the section as a whole, it is clear that the legislature intended the Act to prohibit the actions and conduct of appellant as shown by the facts in this case.
"The broad introductory sentence of the legislative intent section reads: `It is essential to the proper operation of democratic government that public officials be independent and impartial; that government decisions and policy be made in the proper channels of the government structure; that public office not be used for private gain other than remuneration provided by law; and that there be public confidence in the integrity of government.' (Emphasis added [in Rampey ]).
"The tenor of the section read as a whole is that the legislature passed the act to prevent public officials from using their offices to reap private gains. The `conflicts of interests' referred to in the section are conflicts between an official's private interests and his official duties. Muncaster v. Alabama State Ethics Commission, Ala., 372 So.2d 853, 855 (1979); Stephens, William T., Alabama Ethics Cases, 10 Cumberland Law Review 317, 319."
Rampey v. State, 415 So.2d 1184, 1186 (Ala. Cr.App.1982).
C.
Hunt argues that the trial court committed error in denying his motion to dismiss the indictment on the grounds of "vindictive, demagogic and political prosecution." Hunt's brief at 74.
Specifically, Hunt argues that he presented evidence of this "vindictive, demagogic and political prosecution" and conduct by the Attorney General. Hunt alleges:
"[There was] evidence of disputes between the Attorney General and the Governor concerning appointment of special assistant attorneys general; dispute over who is in control of state litigation; disputes over the appropriation of $5 million of court settlements to the Attorney General's budget; and the dispute over the subject of legislative call for special sessions through Attorney General opinions.
"[T]he Attorney General went on a media campaign to publicly chastise, condemn and ridicule the Governor; introduced personal tax returns and other documents through the news media; and encouraged a grand jury member to speak out openly against Hunt....
"The Attorney General subpoenaed a member of Hunt's defense team, John Grenier to the Grand Jury. The Attorney General also required that some sixteen boxes of John Grenier's confidential records be produced....
"Without justifiable excuse, the Attorney General filed 1,300 pages of documents in open court. These documents included Governor Hunt's federal tax returns, ethics forms, and bank records." Hunt's brief at 74-5.
Hunt further alleges that he was "singled out" for prosecution because of "his consistent opposition to the Attorney General's efforts to build a political empire at the expense of the people of Alabama." Hunt's brief at 76-7. Finally, Hunt alleges that the Attorney General violated the Rules of Professional Conduct when "he openly generated prejudicial [pre-trial] publicity against Guy Hunt in the media." Hunt's brief at 77.
*1030 Throughout the prosecution and appeal of this case, both the prosecution and the defense have continued to allege that each is attempting to manipulate the news media to further its own position, to create a carnival atmosphere, and of "leaking" and supplying the media with information designed to either prejudice the other party or to obtain an advantage. Hunt's "affidavit in support of motion to dismiss indictment" (Vol. 3 at 517) if anything constituted a personal attack on the attorney general and an exaggerated account of Hunt's own alleged virtues. In fact, that affidavit begins with the statement: "As Governor of Alabama, I have consistently opposed the Attorney General's efforts to build a political empire at the expense of the Alabama taxpayer." Vol. 3 at 517. To one degree or another, both the prosecution and the defense are guilty of the violations with which each has charged the other although neither is guilty to the extent that has been alleged.
The question in this case is not whether the actions of the attorney general have prejudiced Hunt, but whether those actions have unfairly or unlawfully prejudiced Hunt. We find that they have not.
"Courts defer to a prosecutor's broad discretion to initiate and conduct criminal prosecutions, in part out of regard for the separation of powers doctrine and in part because courts recognize that the decision to prosecute is particularly ill-suited to judicial review. Courts presume, in the absence of contrary evidence, that criminal prosecutions are undertaken in good faith and in a nondiscriminatory manner. As long as a prosecutor has probable cause to believe that the accused has committed an offense, the decision to prosecute rests in her discretion. A prosecutor also has broad authority to decide whether to investigate,... determine what charges to bring, when to bring charges, whether to bring charges, and where to bring charges....
"There are limits, however, to a prosecutor's discretion, and the judiciary has a responsibility to protect individuals from prosecutorial conduct that violates constitutional rights. Such conduct generally involves either selective prosecution, which denies equal prosecution of the laws, or vindictive prosecution, which violates due process.
"Selective Prosecution. A prosecutor's decision to bring charges rarely violates the Equal Protection Clause. In Wayte v. United States, [ 470 U.S. 598 , 105 S.Ct. 1524 , 84 L.Ed.2d 547 (1985) (no constitutional violation when government prosecuted only 13 of an estimated 674,000 non-registrants for the military draft)] the Supreme Court held that to demonstrate selective prosecution a defendant must show both that she was treated disparately and that her prosecution was improperly motivated. Discriminatory treatment arises if others similarly situated have not been prosecuted, whereas improper purpose entails selection that was `deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' Because courts presume that the government undertakes a prosecution in good faith, a defendant challenging an indictment on selective prosecution grounds generally bears a heavy burden of proving facts sufficient to satisfy these two requirements.
". . . .
"Vindictive Prosecution. A prosecutor's use of the charging process may violate due process if it penalizes the exercise of constitutional or statutory rights. In Blackledge v. Perry, [ 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974), the Supreme Court held that the Due Process Clause prohibits a prosecutor from bringing a more serious charge against a defendant who has pursued a statutory right of appeal from a conviction on a lesser charge for the same offense."
Daniel F. McInnis et al., Project, Twenty-Second Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1991-1992, 81 Geo.L.J. 853, 1029-1035 (1993) (footnotes omitted). See United States v. McCord, 695 F.2d 823, 826 (5th Cir.) (per curiam), cert. denied, 460 U.S. 1073 , 103 S.Ct. 1533 , 75 L.Ed.2d 953 (1983) (wherein the court found no constitutional violation notwithstanding the fact that *1031 accused was the first person in over 26 years to be prosecuted in that district for unlawful flight to avoid confinement, in violation of 18 U.S.C. § 1073 ).
Here, Hunt has failed to prove that he is being prosecuted for exercising a constitutional or statutory right. Here, the fact is that Hunt was referred to the Attorney General for prosecution by the Alabama Ethics Commission after that Commission had found probable cause to believe that Hunt had violated the terms of the Ethics Act.
We note that under Rule 3.6(a), Rules of Professional Conduct, no information disseminated by the state had a "substantial likelihood of materially prejudicing an adjudicative proceeding." We find no evidence that such prejudicial information has been disseminated by the Attorney General.
Hunt filed a motion for a more definite statement in which the following allegations and grounds were stated:
"1. Count I of the Indictment alleges that Defendant Hunt misused his office for direct personal financial gain in violation of § 36-25-5, Alabama Code, 1975. This count fails to allege that Governor Hunt `knowingly and wilfully' violated this provision, an essential element of the charged offense under § 36-25-27, Alabama Code, 1975. For these reasons, this count does not sufficiently notify Defendant Hunt of what he must defend against because it fails to allege the necessary elements of the criminal statutes involved and does not allege how the Governor used the `Office of Governor' to obtain direct personal financial gain. Accordingly, Defendant Hunt moves for a more definite statement as to (a) how he used the `Officer of Governor' and (b) what `direct personal financial gain' (c) inured to the benefit of (d) himself or (e) his family or (f) any business with which he was associated.
". . . .
"3. Counts III, VI and IX allege that Defendant Hunt knowingly obtained by deception property belonging either to the Hunt Transition and Inaugural Fund, Inc. (Count III), to the State

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1152944. Public record. Not legal advice.