Petition — Hammond v. Alabama

Supreme Court, ¢. &*

FILED

MAY 8 1978

—— eee

| mmcHAEL R00AK, Be, CLERR

IN THE

SUPREME COURT OF THE UNITED STATES

, 17-1598

KENNETH HAMMOND.

Petitioner,

VS.

STATE OF ALABAMA.

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Court of Criminal Appeals of Alabama

JAMES F. NEAL

JAMES V. DORAMUS

THOMAS H. DUNDON

NEAL & HARWELL

800 Third National Bank Building

Nashville. Tennessee 37219

: ——

St. Louis Law Printing Co., Inc., 812 Olive Street 6310 314-231-4477

INDEX

Page

SE CD ns vonndacddnctundeds seasebsechomss es l

I nF as a i ae aries Wee a oma 2

CO EP reer re Eee eee 2

Constitutional and Statutory Provisions Involved ....... 2

ET EE ind sb hed ose wé edt ewe weedes es 3

Reasons for Granting the Writ ..................... 7

SE sd bietacdbdns cenWAaeranehameren tens 12

FINO ob 6: d0i0.406.0655560660000 0660804005605 A-1l

PE bhiscees cut seddenwisteoseeabivecedass A-28

ES 2. 5 uaa ped candeewemiaedssgasaueaas A-34

PEED Kn ace dee cudsd ween dennensgeeonn sand A-36

PENT 6.6.00. wdc cs oo eweensoeeuereceeenessesds A-39

Citations

Cases:

Ackley v. United States, 200 F. 217 (8th Cir. 1912) ..... 8

Bins v. United States, 331 F.2d 390 (Sth Cir.), cert. denied,

PO Wk ee EE bo A ea natdcnas docs saséanncs 10

Cameron v. Hauck, 383 F.2d 966 (Sth Cir. 1967), cert.

denied, 369 U.S. 1039 (1968) ... 2... cece cc cccces: 7

Dudley v. State, 185 Ala. 27, 64 So. 309 (1914) ........ 8

Garner v. Louisiana, 368 U.S. 157 (1961) .... : Pere re 10

Hamling v. United States, 418 U.S. 87 (1973) ......... 7

Hornsby v. State, 94 Ala. 55, 10 So. 522 (1892) ........ 10

Hurtado v. California, 110 U.S. 516 (1884) ........... 7

In Re Confiscation cases, 20 Wall 92, 87 U.S. 92 (1873).. 7,8

Johnson v. State, 335 So.2d 663 (Ala. Ct. App.), cert. de-

ee os cbse ecees ee ces 4

Mayo v. Blackburn, 250 F.2d 645 (Sth Cir.), cert. denied,

ss } USF ee re ee 7

O’Neill v. United States, 19 F.2d 322 (8th Cir. 1927) ... 8

Price v. United States, 150 F.2d 283 (Sth Cir. 1945), cert.

Ue es PUP ED no oc ccneccsbvecccess 8

Rogers v. State, 23 Ala. App. 149, 122 So. 308 (1929) .. 11

Russell v. United States, 369 U.S. 749 (1962) ......... 7

Thompson v. City of Louisville, 362 U.S. 199 (1960) ... 10

Troutman v. United States, 100 F.2d 628 (10th Cir.

nies kiwukay ae ene Can edcuee ks Cewek een es 8

United States v. Anderson, 368 F. Supp. 1253 (D. C. Md.

dd cueuadah bane s ck eee news ook ae 8

United States v. Bean, 564 F.2d 700 (Sth Cir. 1977) .... 8

United States v. Chenaur, 552 F.2d 294 (9th Cir. 1977) 7

United States v. Dansker, 537 F.2d 40 (3rd Cir. 1976),

cert. dented, 429 U.S. 1038 (1977) ..............2-. 10

United States v. Dedof, 42 F. Supp. 57 (D.C. Pa. 1941)... 8

United States v. Gunter, 546 F.2d 861 (10th Cir. 1976) .. 10

United States v. H. L. Blake Co., Inc., 189 F. Supp. 930

EE SR St Ee Np eg &

United States v. Hairrell, 521 F.2d 1264 (6th Cir.), cert.

Gs Ce Ms I Dg nc ccc ccecccvusece x

United States v. Hollinger, 553 F.2d 535 (7th Cir. 1977) 7

United States v. Jones, 491 F.2d 1382 (9th Cir. 1974) .. 10

United States v. Mackenzie, 170 F. Supp. 797 (D.C. Maine

Pr Ke Perr. Tete, Tere. tt reer 8

United States v. Malinowski, 347 F. Supp. 347, 352 (D.C.

Pa. 1972), cert. denied, 411 U.S. 970 (1973) ....... 8

United States v. Martinez-Gonzales, 89 F. Supp. 60 (D.C.

0 eer re) ee ee 8

United States v. Tarnopol, 561 F.2d 466 (3rd Cir. 1977) 10

United States v. Wells, 180 F. Supp. 57 (D.C. Del. 1959) 8

Constitution and Statutes:

Amend. XIV, Section 1, U. S. Comst. ............-.-. 2

RO Soe seccctaceesterseoesoveces 2

Title 14, § 63, Code of Alabama (1943) .............. 2

Title 14, § 326 (al-a4), Code of Alabama (1967) ........ 1,2

Title 15, § 247, Code of Alabama (1940) .............. 2,8

IN THE

SUPREME COURT OF THE UNITED STATES

KENNETH HAMMOND.

Petitioner,

VS

STATE OF ALABAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Court of Criminal Appeals of Alabama

Petitioner, Kenneth Hammond, prays that a writ of certi-

orari issue to review the judgment of the Court of Criminal

Appeals of the State of Alabama, entered March 1, 1977,

affirming his conviction under Title 14, §326 of the Code of

Alabama (1967), that is, inciting to a felony, and that on

hearing the judgment of conviction be reversed.

OPINION BELOW

The opinion of the Alabama Court of Criminal Appeals

(App. A., infra, pp. A-1-A-27) has not been reported.

JURISDICTION

The judgment of the Alabama Court of Criminal Appeals

was entered on March 1, 1977 (App. A., infra, pp. A-1-A-27).

A timely petition for a writ of certiorari was filed with the Su-

preme Court of Alabama, and the writ was granted on June 22,

1977. After the submission of briefs and oral argument before

the Court, the writ was quashed as improvidently granted on

December 16, 1977. (App. B, infra, pp. A-28-A-33) A timely

application for rehearing was filed and was overruled on Febru-

ary 10, 1978. (App. C, infra, pp. A-34~A-35)

This Court has jurisdiction under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

1. Whether alternative allegations stated in a single count

of an indictment denied petitioner his right to be informed of

the nature of the charges against him, as is required by the

Due Process Clause of the Fourteenth Amendment to the Con-

stitution of the United States.

2. Whether the “inciting to felony” charge against petitioner

was so completely devoid of evidentiary support ~ to render

his conviction unconstitutional under the Due Process Clause

of the Fourteenth Amendment to the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth Amendment of

the Constitution of the United States, Title 14, §326 (al-a4),

Code of Alabama (1967); Title 14, §63, Code of Alabama

(1943); and Title 15, §247, Code of Alabama (1940) are set

forth in Appendix D, infra, pp. A-36-A-38.

STATEMENT OF THE CASE

An indictment was returned by the Grand Jury of Mont-

gomery County, Alabama, against Kenneth Hammond on Au-

gust 8, 1975, alleging, in Count I, that he

did unlawfully incite, towit [sic]: John Moore, Rex Moore

or Charles Price to a felony, towit [sic]: Bribery of an

executive, legislative or judicial officer, in that the said

Kenneth Hammond, alias Ken Hammond, alias “Bozo”

Hammonds, induced, procured or caused, or made an

effort or endeavor to induce, procure or cause the said,

towit [sic]: John Moore, Rex Moore, or Charles Price to

corruptly offer, promise or give to an executive, legisla-

tive or judicial officer, towit [sic]: Kenneth Hammond,

President, Public Service Commission, State of Alabama,

after his election to said office, a gift, gratuity or thing

of value, towit [sic]: money or proceeds from or in con-

nection with operation of certain vending machines in,

towit [sic]: South Central Beil Telephone Company build-

ings, Montgomery, Alabama, in the amount of, towit

{sic}: $10,000 with the intent to influence the act, vote,

opinion, decision or judgment on a cause, matter or pro-

ceeding then pending or which may be by law brought

before the said Kenneth Hammond in his official ca-

pacity as President, Public Service Commission, State of

Alabama, towit [sic]: a telephone rate or charge increase

requested by South Central Bell Telephone Company

styled, towit [sic]: South Central Bell Telephone Com-

pany, Petitioner: Petition for Approval of New Schedules

of Rates and Charges for Intrastate Telephone Service,

Alabama Public Service Commission Docket 16966, con-

trary to law and against the peace and dignity of the

State of Alabama.

According to the literal terms of this charge, and the court's in-

structions to the jury, a conviction could be had if the govern-

a os

ment proved beyond a reasonable doubt that Hammond incited

either John Moore, Rex Moore, or Charles Price to commit

bribery. As is briefly discussed below, these alternative charges

related to widely disparate and complex factual transactions.

Hammond was also accused of inciting the same persons to at-

tempt to bribe him and with accepting a bribe, in Counts II and

III of the indictment, respectively. Both courts alleged the same

facts as Count I and in the same manner as quoted above. (App.

E. infra, pp. A-39-A-41)

Counsel for Hammond filed a Motion to Quash the indict-

ment in the Circuit Court of Montgomery County, Alabama on

November 10, 1975, which requested that the indictment be dis-

missed, alleging, inter alia, that the individual counts within the

indictment failed to adequately charge an offense. Hammond's

counsel simultaneously filed a Demurrer to the indictment alleg-

ing that the indictment failed to adequately set forth and inform

the defendant as to the nature of the charges against him. Par-

ticularly, the demurrer alleged that the indictment was fatally

insufficient because it alleged, in the disjunctive, that any one of

three different individuals, were the objects of Hammond's “in-

citement” efforts. Both of these motions were denied by the

Court at oral argument on November 25, 1975.?

According to the proof submitted at trial, Hammond was the

president of the Alabama Public Service Commission from Janu-

ary, 1973 to December, 1975, and was therefore able to vote on

rate increases for certain public utilities, including South Central

_ | After the defense had presented its case, and on petitioner’s mo-

tion, the trial court wired the State to elect one of the three counts

<= See —_. ¢ State elected Count I, and that being the

ich petitioner was convicted, this petition will be ad-

dressed only to issues relevant to Count I.

* There is no Alabama procedure for clarification of an indict-

ment, such as by a bill of particulars. Johnson v. State, 335 So.2d

663 (Ala. Ct. App.), cert. denied, 335 So.2d 678 (1976).

~~!

asm

Bell. (Tr. 540) Rex Moore and his son, John, two of the alleged

“incitees” in Count I, approached Hammond in 1973 with re-

quests that he assist them in placing vending machines in a plant

owned by South Central Bell. (Tr. 167, 305) Although the

Moores, who were shareholders and employees of the Tops

Vending Machine Company, testified that Hammond requested

payments of money in return for his assistance, there was no evi-

dence that either of the Moores had or claimed to have any inter-

est in South Central Bell or in the pending rate increase request,

as alleged in the indictment.*

Hammond approached Charles Price, a vice-president of

South Central Bell and the third alleged “incitee,” and requested

that Price do what he could to see if the Moores’ machines could

be installed in the plant. (Tr. 386) The Moores were notified in

January, 1975, by Vernon Lockard, a South Central Bell dis-

trict plant manager, that they would be allowed to install their

machines in the plant, and they did so. (Tr. 309)

In February, 1975, South Central Bell filed a request for

an approximately $59 million rate increase with the Public

Service Commission. (Tr. 391) In June or July, 1975, Ham-

mond spoke to Price and requested that the Moores’ machines

be removed because “they [were] a bunch of crooks.” (Tr. 390)

Hammond testified that he had reconsidered his role in the

affair after discussing the Moores’ offers of payments with his

wife and son, and that this discussion prompted him to request

that the machines be removed. (Tr. 582) Price testified that he

feared Hammond might not be favorably disposed toward the

proposed rate hike if the machines were not removed. At no

time was there any reference to the phone company or the pend-

* Hammond accepted $200 from the Moores, although the pur-

pose of this payment was unclear. Indeed, the Court of Criminal

Appeals recognized that this exceedingly prejudicial evidence bore

no relationship to the*charges in the indictment. (App. A. infra,

pp. A-13—A-14)

—

ing tate increase request. (Tr. 402) Price stated that Hammond

had, in his opinion, always acted fairly with respect to the tele-

phone company, and that he had never made any threats or

promises about a rate increase. (Tr. 427)

Based on the foregoing evidence, the jury found Hammond

guilty of Count I and he was sentenced to three years imprison-

ment. On appeal, the Court of Criminal Appeals affirmed, stat-

ing that

[o}f the three alternatives charged in Count I, the State to-

tally fails to prove two and barely proves the third. . . .

A complex and many-faceted count is the basis for depriv-

ing [Hammond] of his liberty. We have been presented

with a hodge-podge of facts and are told that upon one

theory or another, they substantially prove every material

allegation of the indictment. In order to find one theory or

one alternative which would support the instant convic-

tion, it has been necessary to fit facts together like connect-

ing pieces of a complex jigsaw puzzle. . . . The evidence

that [Hammond] incited Price to bribe him . . . is far

from overwhelming. Yet, we find it to be sufficient to meet

the bare minimum standards to support the verdict of the

jury.

(App. A, infra, pp. A-19-A-20) The Court conceded that the

conviction could not be supported if Hammond demanded the

withdrawal of the Moores’ machines out of a desire for revenge

or self-satisfaction. However, the court speculated that, although

there was no evidence Hammond sought any money from Price,

his insistence that the machines be withdrawn was motivated

by the hope that Price would transmit his request to the Moores

(who might view it as an ultimatum and pay money to Ham-

mc¢..d). Further, since Price was concerned about the rate re-

guest, his motivation for attempting to comply with Hammond's

demand was to influence Hammond's consideration of that re-

quest. (App. A, infra, p. A-3)

al am

The Supreme Court of Alabama, after granting Hammond's

petition for a writ of certiorari, quashed the writ as improvi-

dently granted. Two justices Gissented, arguing that the Court

had in effect sanctioned a new standard of review in a criminal

case—the “bare minimum” standard—and in doing so had

violated Hammond's Fourteenth Amendment due process rights.

(App. B, infra, p. A-33)

REASONS FOR GRANTING THE WRIT

1. The Court of Criminal Apneals of Alabama Departed

From the Well-Recognized Constitutional Requirement That

an Indictment Must Inform the Avcused of the Nature of the

Charges Against Him.

The Due Process Clause of the Fourteenth Amendment re-

quires, at a minimum, that a criminal offense be charged with

such certainty as is necessary to apprise the defendant of the

nature of the charge against him and to protect the defendant

from being put in jeopardy for the same offense in the event

future action is taken against him. Hamling v. United States,

418 U.S. 87, 117-118 (1973); Russell v. United States, 369

U.S. 749, 763-64 (1962). See also, e.g., United States v. Hol-

linger, 553 F.2d 535, 548-49 (7th Cir. 1977); United States

v. Chenaur, 552 F.2d 294 (9th Cir. 1977). While there is no

federal constitutional requirement that state court felony pros-

ecutions be instituted by grand jury indictment, Hurtado v.

California, 110 U.S. 516 (1884), the state must still comply

with due process requirements whether it proceeds by indict-

ment or otherwise. Cameron v. Hauck, 383 F.2d 966, 969

(Sth Cir. 1967), cert. denied, 389 U.S. 1039 (1968); Mayo

v. Blackburn, 250 F.2d 645, 647 (Sth Cir.), cert. denied, 356

U.S. 938 (1958).

This case highlights a direct clash between the principle set

forth in In Re Confiscation Cases, 20 Wall 92, 87 U.S. 92

—

(1873), and the practice approved by the Alabama court. Spe-

cifically, the federal doctrine, which is founded on the Due

Process Clause, prohibits the allegation of several different acts

in the disjunctive within a single count of an indictment. be-

cause such an indictment does not inform a defendant of the

charges against him. In Re Confiscation Cases, supra, at

104. See also, United States v. Bean, 564 F.2d 700, 705

(Sth Cir. 1977); Price v. United States, 150 F.2d 283 (Sth

Cir. 1945), cert. denied, 326 U.S. 789 (1946); Troutman vy.

United States, 100 F.2d 628, 631 (10th Cir. 1938); O'Neill

v. United States, 19 F.2d 322, 324 (8th Cir. 1927); Ackley

v. United States, 200 F. 217, 221 (8th Cir. 1912): United

States v. Malinowski, 347 F. Supp. 347, 352 (D.C. Pa. 1972),

cert. denied, 411 U.S. 970 (1973); United States v. H. L.

Blake Co., Inc., 189 F. Supp. 930, 934 (D.C. Ark. 1960):

United States v. Wells, 180 F. Supp. 707, 709 (D.C. Del.

1959); United States v. Mackenzie, 170 F. Supp. 797, 799

(D.C. Maine 1959); United States v. Dedof, 42 F. Supp. 57

(D.C. Pa. 1941).

The Alabama court sustained a conviction on an indictment

which charged multiple factual schemes, each of which could

have constituted a separate crime.‘ This action violates the

standards of due process set forth in In Re Confiscation Cases,

supra. See also, United States v. Hairrell, 521 F.2d 1264, 1266

(6th Cir.), cert. denied, 423 U.S. 1035 (1975): United States

v. Martinez-Gonzales, 89 F_ Supp. 60 (D.C. Cal. 1950). Com-

pare, United States v. Anderson, 368 F. Supp. 1253, 1259

(D.C. Md. 1973) (count charging conspiracy to extort two

corporations sufficient when scheme involved a joint venture

of the corporations).

* Alabama has approved by statute the inclusion of alternative

means for commiting a single offense within one count. Title 15,

$ 247, Code of Alabama (1940). The statute does not provide for

the consolidation of different transactions, each of which constitutes

a separate offense. For example, it is proper to allege, in a single

count, murder “by cutting with a knife or shooting with a gun.”

Dudley v. State, 185 Ala. 27, 64 So. 309 (1914).

—

The indictment was not only invalid on its face as a matter of

federal constitutional law, Hammond was in fact deprived of a

fundamentally fair trial. The remaining count of this indictment

presented Hammond with a bewildering choice of alternative of-

fenses for which to prepare and present a defense. The three

possible alternatives rested upon distinct theories of prosecu-

tion and distinct facts. Hammond's ability to prepare a defense

was further impeded by the complexity of the ultimate theory

of prosecution, which is barely cognizable even in retrospect.

Moreover, as more fully discussed below, the disjunctive al-

legations effectively negate the possibility of a fair review of the

conviction on appeal. The disjunctive allegations in Count I

not only failed to inform the petitioner of the charge against him,

but allowed the jury to anonymously select one of three trans-

actions for which to find him guilty. The Court of Criminal Ap-

peals recognized that there was a complete lack of evidence on

two of the alternatives. However, it is entirely possible that the

jury convicted Hammond on the basis of one of those two

grounds, see footnote 3, supra, and if so, his conviction would be

invalid even under the analysis of the court below.

2. The Court of Criminzi Appeals of Alabama Breached the

Due Process Clause of the Fourteenth Amendment by Conclud-

ing That Any Evidence Supported the Charge Against Petitioner.

The Court of Criminal Appeals recognized the complete ab-

sence of any evidence to support two of the three disjunctive al-

legations contained in Count I, but found sufficient evidence to

support the third allegation. As is discussed below, the allega-

tion of several different transactions in the disjunctive requires

that the reviewing court find sufficient evidence to support each

of the alternatives. Further, notwithstanding the Court's conclu-

sion that a “bare minimum” of evidence was present to support

the third alternative, the conviction was “so totally devoid of

evidentiary support as to render [it] void under the Due Process

Sa a ee ae ee ,

-— 10 —

Clause of the Fourteenth Amendment.” Garner v. Louisiana,

368 U.S. 157, 163 (1961); Thompson v. City of Louisville,

362 U.S. 199 (1960).

According to Turner v. United States,

[t]he general rule is that when a jury returns a guilty verdict

on an indictment charging several acts in the conjunctive

- . the indictment stands if the evidence is sufficient with

respect to any one of the acts charged.

396 U.S. 398, 420 (1970) (emphasis supplied). Application

of this rule is limited, however, to conjunctive allegations of

several different means of committing the same offense, and

not to alternative expressions of different factual transactions,

each of which might state a separate offense. See, e.g., United

States v. Gunter, 546 F.2d 861 (10th Cir. 1976), cert. denied,

430 U.S. 947 (1977); United States v. Jones, 491 F.2d 1382

(9th Cir. 1974). In the instant case, Count I alleges three such

separate transactions in the altenative. See discussion supra at

p. 10.

Further, the rule embodied in Turner v. United States, supra,

does not apply when acts are alleged in the disjunctive. As in

this case, the existence of alternative accusations within a single

count of an indictment renders it impossible for the reviewing

court to evaluate the sufficiency of the evidence. United States

v. Tarnopol, 561 F.2d 466, 475 (3rd Cir. 1977); United States

v. Dansker, 537 F.2d 40, 51 (3rd Cir. 1976), cert. denied, 429

U.S. 1038 (1977); Bins v. United States, 331 F.2d 390, 393

(Sth Cir.), cert. denied, 379 US. 880 (1964). Compare,

Hornsby v. State, 94 Ala. $5, 10 So. 522 (1892) (general ver-

dict of guilty is sufficient when indictment charges different

means in the alternative).

Under the state's ultimate theory of prosecution (that is, the

only theory which the Court of Criminal Appeals found to be

En eT

aw §§ «=

supportable by the evidence), Hammond sought a “thing of

value” from Charles Price, rather than a $10,000 portion of

the vending machine proceeds, as alleged in the indictment. No

direct evidence supports this theory; the appellate court rested

its decision on a finding that “Price acted on several occasions

to influence [Hammond's] official actions.” While the court

conceded that there was no evidence that “Price was incited

to pay any money to” Hammond, it concluded that the jury

could have found that Hammond hoped his request would be

transmitted to the Moores via Price, and that the Moores would

respond by making a payment to Hammond.

This conclusion completely ignores the requirement that the

state prove Hammond made this request to Price with the in-

tent to threaten Price with adverse action on the rate increase

request. See, e.g., Rogers v. State, 23 Ala. App. 149, 122 So.

308 (1929). Hammond denied possessing such intent. Accord-

ing to all of the evidence in the case, no mention was ever made

by any party of the rate increase request. The appellate couri

concluded, however, that Price felt Hammond “would not look

favorably on the Bell request for a rate increase if the ma-

chines were not removed.” Accordingly, there is a fatal absence

of a finding or any evidence to support a finding that Hammond

intended to threaten Price with adverse action taken in his offi-

cial capacity, with respect to the rate increase or otherwise.

The verdict rendered by the jury is supported solely by conjec-

ture, if at all. This condition is inconsistent with due process

of law, and was created by the incomprehensible theory of

prosecution posited by the State.

In summary, the Court of Criminal Appeals has approved

a form of accusation which infected the entire proceedings be-

low. This impermissible taint was grossly compounded by the

complete absence of evidence to support the verdict returned

by the jury.

——E

— »

Hammond submits that in view of the conflict between the

federal constitutional principles which have developed relating

to the charge of and proof of a criminal offense, and the pur-

ported application of those principles in the case below, review

by this Court is warranted. Without such review, Hammond

would be deprived of his right to a fair trial.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JAMES F. NEAL

JAMES V. DORAMUS

THOMAS H. DUNDON

Counsel for Petitioner

May, 1978

APPENDIX

— A-l —

APPENDIX A

The State of Alabama—Judicial Department

The Alabama Court of Criminal Appeals

October Term, 1976-77

3 Div. 444

Kenneth Hammond, alias

y

State

Appeal from Montgomery Circuit Court

PER CURIAM

Appellant was indicted by the Montgomery County Grand

Jury on August 8, 1975, on three counts:

(1) Inciting to a felony, bribery;

(2) Inciting to a felony, attempted bribery;

(3) Accepting a bribe.

The State elected to go to the jury on Count I only, and appel-

lant was found guilty thereon and sentenced to three years in

the penitentiary.

The State’s Case

A short synopsis of the evidence against the appellant is here

set out in a light most favorable to the State. The appellant

was the president of the Alabama Public Service Commission

—_> we

(hereinafter P.S.C.) from January 1973 to December 1975.

Rex Moore and John Moore were majority stockholders in Tops

Vending Machine Company (hereinafter Tops). During 1973

the Moores approached the appellant in order to solicit his help

in securing the vending machine business in a South Central

Bell Telephone Company (hereinafter Bell) plant on Adams

Street in Montgomery. The Moores testified that the appellant

then stated that he would have to receive $10,000.00 for his

services. The Moores stated that they could not afford to pay

that much.

In November 1974, Rex Moore received a telephone call

from Mr. Vernon Lockard, an employee of Bell, about installing

vending machines in the Adams Street plant. Rex Moore again

met with the appellant at which time Moore said the appellant

asked for $5,000.00 for his help in securing the vending machine

business. Rex Moore replied that he could not afford to pay that

amount. Subsequent to his conversation with the appellant,

Rex Moore was informed by Mr. Lockard that Tops would net

get the vending machine business at the Adams Street plant,

however, in January of 1975, Mr. Lockard allowed Tops to in-

stall vending machines in that plant. The commission from the

machines went to the Pioneer Club, an employee organization,

not to Bell.

Charles Price was a Bell vice president in charge of public

relations. Price had frequent contacts with the appellant and

other members of the P.S.C. The appellant asked Price to help

Tops get its vending machines into the Adams Street plant.

Price complied with the appellant's request. In February 1975,

subsequent to the installation of the vending machines, Bell filed

with the P.S.C. a request for a rate increase of approximately

$59 million. The final order concerning the rate increase was

entered in September 1975 (after the arrest and indictment of

the appellant). After the installation of the vending machines,

Rex Moore said the appellant requested that the Moores pay him

—_*

$300.00 per month for his help in placing the machines. The

Moores refused, although they did give the appellant a total of

$200.00 which he requested as expense money for two State

business trips.

Some months after the machines were installed, the appellant

contacted Price to have Tops’ machines removed, stating that

the Moores were “a bunch of crooks.” The appellant said Price

would not get what he needed unless the machines were re-

moved. From that Price concluded that the appellant would not

look favorably on the Bell request for a rate increase if the ma-

chines were not removed. At first Price did nothing, but appel-

lant began to pressure him more and more to have the machines

removed from the Bell plant. Price finally went to the Moores

and told them to settle their problems with the appellant.

Rex Moore testified that because of incessant demands for

money by the appellant and because of pressure from Price

to settle with appellant, he informed the Attorney General of

the circumstances involved in this case. Agents of the State

had Rex Moore call appellant and arrange to meet in a local

truck stop restaurant on July 8, 1975. Those agents wired

Rex Moore with a transmitter and recorded his conversation

with appellant. Based upon Moore’s complaint and the re-

corded conversation, a warrant for appellant’s arrest was is-

sued on July 12, 1975, and on August 8, appellant was in-

dicted by the grand jury. The recording was admitted into

evidence and played for the jury during the trial.

The Appellant’s Case

The appellant testified in his own defense. It was his con-

tention that the Moores were the instigators of the whole af

fair. He said Rex Moore offered him money to help place

Tops’ machines in the Bell plant. Appellant denied ever ask-

= .

ing the Moores for money or accepting money in connection

with placing the machines in the Bell plant. He steadfastly

denied ever having implied to Price that he should put pres-

sure on the Moores in turn for a Bell rate increase. The ap-

pellant argues at length in his bricf that the Attorney General

prosecuted him solely for political reasons. A number of wit-

nesses testified as to appellant’s good character.

Since the State elected to go to the jury on Count I only,

appellant's contention that one of the other two counts was

improperly amended was thereby rendered moot. Only the

count upon which appellant was found guilty is subject to

appellate review.

A

Among numerous motions and pleadings, on November 10,

1975, appellant filed a motion to quash the indictment. One

ground set out in the motion to quash was that the grand jury

which returned the instant indictment, “was not in compliance

with the requirements of the laws of the state of Alabama in

obtaining the general cross-section of the community... .”

The State contends that the Montgomery County Jury Com-

mission, acting under a federal court order, was required to

fill the jury box by taking every fifth name from the voting list

of Montgomery County. Appellant contends that such a sys-

tem fails to fully comply with Alabama statutes on establish-

ing jury lists. The testimony did establish that every fifth name

was selected from a computer printout of the Montgomery

County voters list.

In support of its position, the State cites Higginbotham vy.

State, 54 Ala.App. 633, 312 So.2d 31 (1975). In Higgin-

a

— Yo

botham, the venire was established pursuant to a federal court

order relating to the Lowndes County Jury Commission. There,

the federal court required the commission to examine not

only the voters list of that county, but also the tax assessor’s

list and the list compiled by the federal examiners, and make

up a comprehensive list therefrom. The testimony in that case

showed that the Lowndes County Jury Commission complied

with the requirements of the federal court order and in addi-

tion thereto used every source of names available to them in

Lowndes County in compiling the master list. The testimony

showed that everyone twenty-one years and older were in-

cluded on the list. The commission also evaluated each pre-

cinct in the county and talked to persons having knowledge

of individuals living in the county for the purpose of remov-

ing ineligible persons as jurors according to the jury laws of

this state.

In the instant case, the Montgomery County Jury Commission

in following the federal court order ignored the state law. In

the memorandum opinion issued in Penn et al. v. Eubanks et al.,

Judge Frank Johnson, Jr., on June 6, 1973, stated, “As for the

means of selecting this cross-section, this court commends for

the jury commission's consideration the random jury selection

plan used in all federal district courts and in many state courts.

See Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-

1865.” (Emphasis supplied.) That court’s order stated that,

“The jury commission shall examine the voting list and make

an alphabetical list therefrom . . .” That order did not go as far

as the one issued in Higginbotham in allowing the use of other

sources in selecting potential jurors.

Judge Johnson's order and opinion relating thereto, set a

minimum standard which the Montgomery County Jury Com-

mission must meet in order to comply with federal constitutional

provisions. We do not read his order to mean that the jury

commission is to completely ignore the statutory requirements of

—

Alabama law in selecting and qualifying jurors. Alabama law,

if administered in good faith, provides a much better cross-sec-

tion of the community for jury selection than the federal system.

In Higginbotham, supra, the Lowndes County Jury Commis-

sion complied with both federal and state standards. In the in-

stant case, the Montgomery County Jury Commission meets only

the minimum federal requirements and thus violates the require-

ments of Title 30, § 21, Code of Alabama 1940 as amended.

However, the violation of a statutory requirement in filling the

jury roll may mot be taken advantage of by a motion to quash.

Title 15, § 278 and Title 30, § 46, Code of Alabama 1940. The

only exceptions to the prohibitions of these sections is in case

of (1) denial of a constitutional right or (2) fraud.

In addition to the motion to quash the indictment, on October

30, 1975, appellant had filed a plea in abatement to the indict-

ment. Ground 3 is as follows:

“That the grand jury which returned the indictment against

the defendant was not in compliance with the requirements

of the laws of the state of Alabama in obtaining the general

cross-section of the community, in that upon the information

and belief, the venire from which the grand jury was drawn,

was taken by a mere selection of each fifth name on the

jury list' of Montgomery County.”

We must now determine if the question of fraud was properly

presented in the trial court below and whether an erroneous rul-

ing was made thereon by the trial court.

Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970) holds

that a system of jury selection which excludes persons who are

not registered voters would not substantially comply with statu-

' “Jury list” as used in the plea in abatement is apparently a typo-

graphical or clerical error, since all the argument before ‘the trial

court and on appeal on this point refers to selection of every fifth

name from the “voters list.” All parties and the trial court treated

the plea as an objection to selection from the voters list.

'

|

'

'

—* =

tory requirements that the jury roll contain the names of every

citizen living in the county who are generally reputed to be

honest, intelligent and esteemed in the community for integrity,

good character and sound judgment. In the Gregg case, the

Alabama Supreme Court held that the method of selecting and

compiling the jury roll in Madison County, making sole use of

the voter registration list, is a fraud in law. To quote from

Gregg:

. . Fraud used in this sense has been construed as en-

compassing more than criminal wiles: ‘Fraud is a relative

term, it includes all acts and omissions which involve a

breach of legal duty injurious to others.’ Inter-Ocean Cas.

Co. v. Banks, supra [32 Ala.App. 225, 23 So.2d 874]. And

it has been held that “When it affirmatively appears that the

names of a large number of citizens who possess the quali-

fications required by law of jurors, are intentionally omitted

from the jury roll * * * that is a fraud in law that requires

the quashing of a venire * * *. It is not the kind of a jury

box contemplated by law. Our statutes do not contemplate

* * * any system or scheme of selecting other than the selec-

tion of names authorized by law * * *.’ 32 Ala.App. at p.

227, 23 So.2d at p. 875, citing Doss v. State, 220 Ala. 30,

123 So. 231.”

In Fikes v. State, 263 Ala. 89, 81 So.2d 303 (1955), the

appellant there filed a motion to quash the indictment on the

ground of systematic exclusion. The Alabama Supreme Court

set out at length the procedure used in Alabama for compiling

jury lists. It went on to hold that “there is no legal reason for

quashing an indictment or venire simply because the jury com-

mission did not put the name of every qualified person on the

roll or in the jury box, in the absence of fraud (or a denial of

constitutional rights) . . .”

Fikes was cited by the appellee in Gregg v. Maples, supra, as

justification for excluding persons not on the voters list. In the

—_ > a

Gregg case, the Alabama Supreme Court pointed out that Fikes

is a proper statement of the law, except that the appellee had

ignored the phrase, “in the absence of fraud . . .”

In Bell v. Terry, 213 Ala. 160, 104 So. 336 (1925), the

Alabama Supreme Court held that the indictment in that case

should not be quashed, except on a plea in abatement, sus-

tained by proof that the grand jurors who found the indictment

were not drawn by an officer designated by law to draw the same,

or that the jury commissioners fraudulently filled the jury box.

In Reese v. State, 228 Ala. 132, 152 So. 4] (1933), the Ala-

bama Supreme Court held that under our procedural statute

(Title 15, § 278, of the present Code), a motion to quash the in-

dictment was not the proper method cf presenting questions

going to the formation of the grand jury. Such could only be

raised by a plea in abatement.

In Thomas v. State, 277 Ala. 570, 173 So.2d 111 (1965), the

Alabama Supreme Court held that a motion to quash is the

proper way to challenge an indictment and trial venire on

grounds of intentional racial discrimination. The Court stated:

“Sections 278 and 285, Title 15, and § 46, Title 30, Code

1940, have been held to be procedural statutes, designed to

prevent quashing of indictments or venires for mere ir-

regularities and to obviate the resulting delays in the ad-

ministration of justice. Those statutes do not deny to one

charged with a crime the right to present for a determina-

tion the question of whether the rights guaranteed by the

Fourteenth Amendment to the Constitution of the United

States have been violated. Vernon v. State, 245 Ala. 633,

18 So.2d 288 . . .” (Emphasis supplied. )

Citing Bell v. Terry, supra, this Court in Mullins v. State, 24

Ala.App. 78, 130 So. 527 (1930) stated:

—_ =

“. . . We conclude from the holding in this case that,

notwithstanding sections 8630 and 8637, Code of 1923,

fraud in filling the jury box may be taken advantage of

either by motion to quash the venire or by plea in abate-

ment to the indictment containing proper averments, sup-

ported by proof that the jury box was fraudulently

filled...”

Sections 8630 and 8637 are found in the present Code as Title

15, § 278 and Title 30, § 46, respectively.

In Spivey v. State, 172 Ala. 391, 56 So. 232 (1911), the

Supreme Court of Alabama found that where the record af-

firmatively shows an error was committed by the trial court in

the organization of the grand jury, which is fatal to the judgment,

on an indictment found by such grand jury, an objection thereto

may be taken by a motion in arrest of judgment and also by

motion to quash. The Court in that case stated:

“. . . The jury law has for a long time provided that no

objection can be taken to any venire except for fraud in

the drawing or summoning; yet this objection could not be

taken to an indictment, if the grand jury was drawn in the

presence of and by the officers designated by law; that is,

this question could not be inquired into on a plea in abate-

ment, nor on motion to quash an indictment, if the grand

jury was drawn in the presence of, and by officers desig-

nated by law...”

“In case the error is apparent of record, and is fatal, and

goes to the organization of the grand jury which found and

returned the bill, the objection is availing on motion in

arrest of judgment, or by motion to quash; otherwise by

plea in abatement.—Ramsey v. State, 113 Ala. 49, 21

South. 209; Peters v. State, 98 Ala. 38, 13 South. 334.”

— A-10 —

In considering the applicability of Gregg v. Maples, supra,

we make the following observations:

(1) Gregg v. Maples arose from a petition for writ of man-

damus to reconstitute the jury roll, not from a motion to quash

an indictment.

(2) The Montgomery Jury Commission was acting under

federal court order stating that, “The jury commission shall

examine the voting list and make an alphabetical list therefrom

. . .” (Emphasis supplied. )

(3) Failure to comply with the state statutes, detailing the

composition of the jury roll, is not a denial of a constitutional

privilege.

(4) As it relates to composition of grand juries, the fraud

necessary to quash an indictment is construed by us to encompass

only willful and deliberate omissions of persons eligible to serve

which would result in some demonstrable prejudice to the appel-

lant.

To us there is a great difference between the body that merely

accuses, via indictment, and the body that determines guilt or

innocence. The requirements of due process and equal protec-

tion are more strictly observed in the trial phase (finding of guilt

or innocence) than in the accusatory proceedings. For instance,

in grand jury proceedings the accused has no right to be present,

to confront witnesses, to cross-examine or to be represented by

counsel, as he does at trial.

While grand juries and petit juries are drawm from the same

jury lists, it is more important that an accused have the right

to a much broader inquiry as to how the trial jury was selected

than how his accusers were impaneled. There is no challenge

to the petit jury composition on the grounds of fraud in the

instant case. In light of Title 15, §§ 278, 285, we will not

extend the rationale of Gregg v. Maples, supra, to apply to the

— A-ll —

instant challenge of the grand jury. We hold to the rationale

expressed in Higginbotham, supra. If the application of “fraud

in law” as expressed in Gregg v. Maples, is extended to chal-

lenges of grand juries by motions to quash, it must be done by

the Supreme Court, not by this Court.

Here, the appellant has failed to demonstrate how he was

prejudiced by an indictment returned by a grand jury drawn

from a list containing names of 6,070 voters of Montgomery

County. Prejudice in jury selection (grand or petit) must be

established by the appellant. Johnson v. State, Ala.Cr.App.,

335 So.2d 663, cert. denied Ala., 335 So.2d 678 (1976).

As to exclusion of nineteen and twenty year olds from the

jury roll, we have previously disposed of that argument in

favor of the State in Giddens v. State, Ala.Cr.App., 333 So.2d

615 (1976). Also see: Bowens v. State, 54 Ala.Cr.App. 491,

309 So.2d 844 (1975).

II

The appellant moved to exclude the State’s evidence at trial,

arguing that a fatal variance existed between the indictment

and the proof produced. The appellant now contends the trial

court erred to reversal in denying his motion to exclude. The

indictment was, to say the least, complex. Count I of the in-

dictment, upon which the verdict of guilty was based, was

drawn by using a combination of two statutes, since no Code

form existed for the specific offense charged.

Act No. 232, Acts of Alabama 1967, approved August 16,

1967 (Title 14, §326(a)(1)-(a)(4), Code of Alabama, 1973

Cumulative Pocket Part) establishes the crime of inciting to

a felony. The specific felony which Count I alleges that the

appellant incited is bribery (Title 14, § 63, Code of Alabama

1940). Count I charges:

eens Sree settee

— A-12 —

“The Grand Jury of Said County charge that, before the

finding of this indictment, Kenneth Hammond, alias Ken

Hammond, alias ‘Bozo’ Hammond, whose true name is

unknown otherwise than stated, did unlawfully incite, to-

wit: John Moore, Rex Moore or Charles Price to a felony,

towit: Bribery of an executive, legislative or judicial offi-

cer, in that the said Kenneth Hammond, alias Ken Ham-

mond, alias ‘Bozo’ Hammond, induced, procured or caused,

or made an effort or endeavor to induce, procure or cause

the said, towit: John Moore, Rex Moore, or Charles Price

to corruptly offer, promise or give to an executive, legis-

lative or judicial officer, towit: Kenneth Hammond, Presi-

dent, Public Service Commission, State of Alabama, after

his election to said office, a gift, gratuity or thing of value,

towit: money or proceeds from or in connection with op-

eration of certain vending machines in towit: South Cen-

tral Bell Telephone Company buildings; Montgomery, Ala-

bama, in the amount of, towit: $10,000 with the intent to

influence the act, vote, opinion, decision or judgment on

a cause, matter or proceeding then pending or which may

be by law brought before the said Kenneth Hammond in

his official capacity as President, Public Service Commis-

sion, State of Alabama, towit: a telephone rate or charge

increase required by South Central Bell Telephone Com-

pany styled, towit: South Central Bell Telephone Com-

pany, Petitioner: Petition For Approval Of New Schedules

Of Rates And Charges For Intrastate Telephone Service,

Alabama Public Service Commission Docket 16966, con-

trary to law and against the peace and dignity of the State

of Alabama.” |

The State drafted the indictment and is bound by its word-

ing. It charges incitment to bribery by three alternatives alleged

in the disjunctive. We summarize Count I of the indictment

as charging that the appellant incited, Rex Moore, or John

Moore, or Charles Price to:

— A-13 —

(1) Corruptly offer, promise or give;

(2) To appellant as an executive, legislative or judicial

Officer;

(3) A gift, gratuity, or thing of value;

(4) With intent to influence appellant's vote;

(5) On a pending Bell rate increase.

A major problem in testing Count I against the appellant's

allegation of variance, is the use of the disjunctive, “or.” When

criminal conduct is alleged in an indictment in the disjunctive,

we must view the proof against each disjunctive allegation sepa-

rately.

We summarize the elements of bribery, enumerated in Title

14, § 63, as follows:

(1) To corruptly offer, promise oi give;

(2) To any executive, legislative or judicial officer;

(3) Any gift, gratuity, or thing of value;

(4) With intent to influence his act, vote, opinion, de-

cision or judgment;

(5) On any cause, matter or proceeding then pending or

which may be brought before such officer in his offi-

cial capacity.

A

The first two alternatives of Count I are not sustained by

the proof. Although the jury could reasonably find that appel-

lant incited the Moores to offer him money, there is absolutely

no proof that the offer was for the purpose of influencing ap-

pellant’s vote on the Bell rate request. There was not one iota

of evidence that the Moores had any interest whatsoever in

:

aw Spt ane

the rate request. The Bell rate request was never mentioned

in any conversation between appellant and the Moores. If Count

I is sustained by the proof, it must be on the third alternative

concerning Charles Price.

It is clear that Price acted on several occasions with the in-

tent to influence appellant’s official actions as such actions

related to Bell’s business. However, there is no evidence that

Price was incited to pay any money to appellant. For Count

i to stand as it relates to Price, the evidence must prove that

appellant incited Price to give him, “a gift, gratuity or thing

of value” in order to influence appellant’s vote on the rate

request. The question then is whether the doing of an act may

constitute the giving of a thing of value, within the meaning

of the bribery statute.

“A gift or gratuity will not support an indictment for so-

liciting or accepting a bribe unless the thing requested or ac-

cepted was something of value to the person seeking or ob-

taining it.” However, the doing of an act which will ultimately

result in a payment being made to the appellant is considered

a thing of value in the law. Commonwealth v. Hayes, 311

Mass 21, 40 N.E.2d 27, 31 (1942); Commonwealth v. Hur-

ley, 311 Mass. 78, 40 N.E.2d 258 (1942).

12 Am.Jr.2d, Bribery, § 7, states:

“It seems that a bribe must involve something of value

that is used to influence action or nonaction. Value, -

though, is determined by the application of a subjective,

rather than an objective, test, and the requirement of

value is satisfied if the thing has sufficient value in the

mind of the person concerned so that his actions are

influenced.”

—_~'

It was held in Ohio in Scott v. State, 107 Ohio St. 475, 141

N.E. 19 (1923), that it is impossible to establish value which

is universal, and further that, “the test of the value must nec-

essarily be the desire of some person or persons not necessarily

of most persons or all persons, for the thing in question.”

We held in McDonald v. State, 57 Ala.App. 529, 329 So.

2d 583, cert. quashed 295 Ala. —, 329 So.2d 596 (1975),

that giving or promising to give sexual favors in exchange for

Official action was a sufficient thing of value to support a

charge of bribery.

11 C.J.S., Bribery, § 2, p. 845, states:

“In order to constitute the offense there must be the

promise, gift, or acceptance of money or other thing of

value, not necessarily of pecuniary or intrinsic value, but

value in the sense of a personal advantage of some sort

to be derived by the recipient.” (Footnotes omitted.)

In Caruthers v. State, 74 Ala. 406 (1883), our Supreme

Court held that the promise of a defendant to a juror to chop

cotton for a week if the juror would clear him constituted a

gratuity or a thing of value. The Court stated:

“The substance of the offer or promise proved to have

been made by the defendant to the juror, Bell, was that

he would ‘chop cotton a weck, if the juror would clear

or acquit him. This, in our opinion, was ‘a gift, gra-

tuity, or thing of value,’ within the meaning of the statute.

The word thing does not necessarily mean a substance.

In its more generic signification it includes an act, or

action. So, the word gratuity embraces any recompense,

or benefit of pecuniary value. . . . The evil of the of-

fense is its tendency to pervert the administration of jus-

tice, by tempting jurors to act contrary to the known

rules of honesty and integrity. The promise of the de-

am Ap 86 an

fendant to give his /abor or services, as a reward for the

corrupt violation of the juror’s sworn duty, is a ‘gift,

gratuity, or thing of value,’ within the signification of the

statute.”

A similar explanation is found in Commonwealth y. Albert,

310 Mass. 811, 40 N.E.2d 21, 26 (1942):

“The promise to do an act that would result in a pecu-

niary gain to the defendant would undoubtedly come

within the scope of the statute. . . . It is enough if a

reward or personal advantage will accrue to the officer

for the performance of the act and that he considers the

value of that which he will receive so highly as to permit

it to influence his official conduct. . . . Of course, if all

the officer intended from the performance of the act was

the self-satisfaction from the fact that he is empowered to

command obedience or the sentiment that comes from

conferring a kindness upon another, then he would not

receive anything to which the law would attach value.

If appellant, in ordering Price to have the machines removed,

was acting out of revenge, or for the self-satisfaction he would

receive by punishing the Moores for not meeting his earlier

demands, then “he would not receive anything to which the

law would attach value.” However, the jury heard the wit-

nesses and observed their demeanor. They listened to the testi-

mony of the Moores, Price and of the appellant. “It could

properly be found upon the evidence, together with the infer-

ences which need not be necessary or unescapable so long as

they are reasonable and warranted that it had been proved

beyond a reasonable doubt,” that the appellant intended that

his threat, transmitted through Price, would cause the Moores

to give in and pay him money. Commonwealth v. Albert,

supra. Price's action could thus be considered “a thing of

value” to appellant.

—_S

Cc

Appellant contends that he is not an executive, legislative,

or judicial officer within the meaning of the bribery statute

and, therefore, could not legally be convicted under Count |

of the indictment. The Constitution of Alabama 1901 sets out

the members of the executive, legislative and judicial depart-

ments, respectively in Article 5, § 112, Article 4, § 44 and

Article 6, § 139, et seq. Neither the P.S.C., nor the position

of president of the P.S.C. is listed in the above articles of the

Constitution. However, the State contends that appellant comes

within the purview of the bribery statute because, as president

of the P.S.C., he performed executive, legislative and judicial

functions.

We find no Alabama cases directly in point, however, we are

persuaded by authority of cases from a number of other jurisdic-

tions.

Most persuasive is Wei! v. Black, 76 W.Va. 685, 86 SE.

666 (1915). There, the Supreme Court of West Virginia, in

interpreting a bribery statute similar to Alabama's held that a

member of the Public Service Commission was a legislative or

judicial officer within the meaning of that statute. The State

quoted in its supplemental brief what we believe to be the heart

of the reasoning expressed in Weil v. Black:

“Members of the public service commission are included in

the descriptive terms of the above statute ‘any executive or

judicial officer." Those are general terms, intended to in-

clude all public officers whose duties are either judicial or

executive. The term ‘executive’ is not there limited to the

officers enumerated in section 1, art. 7, of the Constitution,

as constituting the executive department of the state gov-

ernment, but it is designed to embrace all officers, whether

elected or appointed, whose duties pertain to that branch of

OE

— A-18 —

the government. Being public officers, whose jurisdiction

extends over the whole state, it necessarily follows from the

apportionment by the Constitution of all the powers of

government among three departments, denominated therein

as the legislative, the executive, and the judicial depart-

ments, that the duties of all public officials must fall within

some one of those three departments. A fourth depart-

ment, having powers distinct from the three named, could

not constitutionally exist. That the public service commis-

sioners are not included in the terms ‘members of the Legis-

lature,’ must be admitted; that they are included in one or

the other of the terms ‘executive or judicial officers’ we think

is clear, and it is sufficient, for the purposes of this writ of

error, to class them under the head of executive officers.

If their duties are so varied that some of them may properly

be classed as executive or ministerial, and others as judicial,

they could, for the purposes of the bribery statute, be classed

under either of the two departments. In so far as they are

empowered to investigate rates and charges of public serv-

ice Corporations, and to determine their reasonableness or

unreasonableness, they would seem to be performing a

quasi judicial function, while, in ascertaining what is a just

rate for services to be rendered by such corporations, and

prescribing such rate, as a rule to be obeyed in the future,

their action would seem to partake somewhat of a legisla-

tive character; and in compelling obedience to its orders,

by proper proceedings in court, as section 5 of the act cre-

ating it requires it to do, its duties are ministerial coming

clearly within the functions of the executive department of

government.”

We take judicial notice that there are scores of officers not

listed in the Constitution under any one of the three branches

of government. We do not construe this circumstance to have

created a fourth branch of government. As stated in Peoples

v. Salsbury, 134 Mich. 537, 544, 96 N.W. 936 (1903):

a a ee ee eee

|

—

“The scheme of our government divides all governmental

functions into three classes of powers, viz., the legislative,

the executive, and the judicial; and the officers who perform

these respective functions must be included in the three

classes of officers who exercise these powers. It is difficult

to conceive of an officer exercising any of the powers of

government not being within one of these classes; and

when, an officer cannot be classed with the legislative or

judicial, he must come within the executive class, for, in a

sense, all officers execute the laws. . .”

Of similar import are: Davis v. State, 70 Tex.Cr.R. 524, i58

S.W. 288 (1913); State v. Womack, 4 Wash. 19, 29 P. 939

(1892); Sheely v. People, 54 Colo. 136, 129 P. 201 (1913);

State v. Emory, 55 Ida. 649, 46 P.2d 67 (1935).

While appellant, as president of the P.S.C., was certainly not

a member of the legislature, he still performed legislative func-

tions since ratemaking is such a function which could be exer-

cised by the legislature or delegated by it to the P.S.C. See:

Walker v. Alabama Public Service Commission, 292 Ala. 548,

297 So.2d 370 (1974); Murray v. Service Transport, Inc., 254

Ala. 683, 49 So.2d 221 (1950); State v. Southern Bell Tele-

phone and Telegraph Company, 274 Ala. 288, 148 So.2d 229

(1962).

Although Article 5, § 112, does not list members of the

P.S.C. as being members of the executive department, it could

not be seriously argued that such officers do not perform duties

normally associated with the executive branch of government.

Therefore we find that appellant, as president of the P.S.C., was

an executive, legislative or judicial officer within the meaning of

our bribery statute, Title 14, § 63, supra.

Of the three alternatives charged in Count I, the State totally

fails to prove two and barely proves the third. While the evi-

— A-20 —

dence at the trial may prove a series of highly questionable

transactions between appellant, Price and the Moores, for the

purpose of this appeal, such conduct can only be viewed in the

context of the statute and the specific wording of the indictment.

A complex and many-faceted count is the basis for depriving

appellant of his liberty. We have been presented with a hodge-

podge of facts and are told that upon one theory or another,

they substantially prove every material allegation of the indict-

ment. In order to find one theory or one alternative which

would support the instant corviction, it has been necessary to

fit facts together like connecting pieces of a complex jigsaw puz-

zle. When the task is completed, we find only one theory from

which a jury could draw an inference of guilt. The evidence

that appellant incited Price to bribe him, pursuant to the wording

of Title 14, § 63, is far from overwhelming. Yet, we find it to

be sufficient to meet the bare minimum standards to support the

verdict of the jury.

Ill

As one ground of his motion to quash the indictment, appel-

lant complains that he was denied a fair trial due to prejudicial

pretrial publicity. Appellant proved, through witnesses, that

there was substantial pretrial publicity. He did not, however,

prove that it prejudiced his right to a fair trial. The voir dire

examination of the jury panel shows no prejudicial effect upon

the jury resulted from the publicity. We find no error on the

part of the trial court in its ruling against the appellant in this

regard. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44

L.Ed.2d 589 (1975); Mathis v. State, 52 Ala.App. 668, 296

So.2d 755 (1973) cert. quashed 292 Ala. 732, 296 So.2d 764;

Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975); Yeo-

mans v. State, 55 Ala.App. 160, 314 So.2d 79 (1975).

ener er

— A-21 —

IV

Appellant contends that the trial court erred in refusing to

grant his motion to produce certain evidence presented to the

grand jury. He likewise contends that there was no legal evi-

dence before the grand jury. The record refiects that Rex Moore

and John Moore testified before the Grand Jury which indicted

appellant. It has long been law in Alabama that where it

appears that witnesses were examined before the grand jury, in-

quiry into the sufficiency of the evidence there presented is not

permitted. Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966);

Washington v. State, 63 Ala. 189 (1879). See also: State ex rel.

Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779 (1974);

Bowens v. State, 54 Ala. App. 491, 309 So.2d 844 (1974).

We find no error in the trial court's refusal to open the grand

jury records to appellant. Thigpen v. State, 49 Ala.App. 233,

270 So.2d 666 (1972).

Neither was appellant denied a constitutional right when the

State nol prossed the charges in the county court immediately

prior to his preliminary hearing and then proceeded in circuit

court by way of indictment. It has long been held that an

accused has no absolute right to a preliminary hearing in Ala-

bama after an indictment has been returned by the grand jury.

Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.

2d 387 (1970); Campbell v. State, 278 Ala. 114, 176 So.2d

242 (1965); Johnson v. State, Ala.Cr.App., 335 So.2d 663

(1976), cert. denied Ala., 335 So.2d 678.

v

The appellant contends that the trial court erred in admit-

ting into evidence the tapes and transcripts of conversations

between the appellant and Rex Moore. The tapes were ob-

tained without a warrant, which the appellant contends vio-

lates the United States and Alabama Constitutions.

— A-22 —

A

A review of the so-called “bugged agent” cases leads us to

the inescapable conclusion that the lack of a warrant in this

case did not violate the Fourth Amendment to the United

States Constitution. On Lee v. United States, 343 U.S. 747,

72 S.Ct. 967, 96 L.Ed. 1270 (1952); Lopez v. United States,

373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Os-

born v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.

2d 394 (1966); United States v. White, 401 US. 745, 91 S.

Ct. 1122, 28 L.Ed.2d 453 (1971). The above cases are also

persuasive authority regarding the interpretation of the Ala-

bama Constitution, but they are not binding.

Article 1, § 5, Constitution of Alabama 1901, reads as

follows:

“That the people shall be secure in their persons, houses,

papers, and possessions from unreasonable seizure or

searches, and that no warrants shall issue to search any

place or to seize any person or thing without probable

Cause, supported by oath or affirmation.”

Recently the Supreme Court of Michigan was faced with a

case very similar to the case before us. There, a law enforce-

ment officer, without a warrant, simultaneously monitored a

conversation between a defendant and an informant. The de-

fendant contended that the law enforcement officer's testimony

concerning the conversation should have been excluded under

the Michigan Constitution. The Michigan Supreme Court agreed

and held that a search warrant should have been issued prior

to the institution of the participant monitoring procedure.

People v. Beavers, 393 Mich. 554, 227 N.W.2d 51] (1975).

Article 1, § 11, Constitution of Michigan 1963, which is

almost identical to the aforementioned provision in the Ala-

bama Constitution, reads as follows:

on 9 teenie —

— A-23 —

“The persons, houses, papers, and possessions of every

person shall be secure from unreasonable searches and

seizures. No warrants to search any place or to seize any

person or things shall issue without describing them, nor

without probable cause, supported by oath or affirma-

Mac

While we express no opinion as to the efficacy of the above

argument, we believe it is worthy of consideration. Especially

noteworthy is the following statement from Beavers:

“Participant monitoring is practiced extensively through-

out the country and represents a vitally important inves-

tigative tool of law enforcement. Equally significant is

the security and confidence enjoyed by our citizenry in

knowing that the risk of intrusion by this type of elec-

tronic surveillance is subject to the constitutional protec-

tion against unreasonable searches and seizures. By inter-

posing the search warrant requirement prior to engaging

in participant monitoring, the risk that one’s conversation

is being intercepted is rightfully limited to circumstances

involving a party whose conduct has provided probable

cause to an independent magistrate to suspect such party’s

involvement in illegal activity. The warrant requirement

is not a burdensome formality designed to protect those

who would engage in illegal activity, but, rather a proce-

dure which guarantees a measure of privacy and personal

security to all citizens. The interests of both society and

the individual should not rest upon the exercise of the

unerring judgment and self-restraint of law enforcement

officials. Our laws must ensure that the ordinary, law-

abiding citizen may continue to engage in private dis-

course, free to speak with the uninhibited spontaneity that

is characteristic of our democratic society.”

The State contends that a warrant is not required to sur-

reptitiously record a conversation if one of the parties is a will-

ee

— A-24 —

ing participant in the recordation procedure. The State cites

Alonzo v. State ex rel. Booth, 283 Ala. 607, 21° So.2d 858

(1969) as being dispositive of the issue. We do not agree.

Alonzo appears to be clearly distinguishable on its facts. In

Alonzo it was held that a warrant was not necessary in order

for a private citizen to record telephone conversations in which

he participated. In the present case, as in Beavers, supra, the

police instigated, encouraged, and participated in the record-

ing Operation. Alonzo discloses no such police involvement.

The constitutionality of warrantless recording operations,

which are instigated by law enforcement officers, must. ulti-

mately be based on public policy considerations. These policy

considerations, which include numerous intangible factors, are

adequately set out in On Lee, Lopez, Osborn, White, supra,

and the vigorous dissents thereto. Also see: Amsterdam, “Per-

spectives on the Fourth Amendment,” 58 Minn.L.Rev. 349

(1974); Kamisar, LaFave and Isreal, Modern Criminal Pro-

cedure, pp. 416-60. By the proceeding [sic] digression, we

should not be construed to imply that the law enforcement

agencies of Alabama have acted in any way inconsistent with the

Alabama Constitution. We merely point out that the constitu-

tionality of the use by the State of “bugged” agents, absent a war-

rant, has not been conclusively decided under the Alabama

Constitution by our Supreme Court.

Based upon the federal decisions cited above, and based

upon the very slight analogy Alonzo affords (see dissent, rely-

ing upon Lopez, supra) we find that no constitutional duty

was breached by the failure of officers to obtain a warrant to

tape record appellant's conversation with Rex Moore in the

instant situation.

B

The electronic tape recording of the July 8, 1975, conver-

sation between Rex Moore and appellant was introduced into

evidence over vigorous objection, as was the stenographic tran-

script of the recording. That transcript was typed by a secre-

tary in the Attorney General's Office under the direct supervi-

sion of one of the investigators who overheard the conversation

as it was being recorded. It was authenticated by both. See:

People v. Albert, 6 Cal.Reptr. 473, 182 C.A.2d 729 (1960).

Appellant contends the recording contained inaudible portions

and that the typed transcript furnished by the State supplied

words which were not audible on the tape. We have carefully

listened to the recording and compared it to the State's tran-

script, and there are inaudible portions in the tape where words

or phrases are supplied in the typed transcript. They are, how-

ever, minor in nature and served to only cast slight doubt upon

the weight which should be given the recording by the jury.

See: Tumminello v. State, 10 Md.App. 612, 272 A.2d 77

(1971).

Because the recorded conversation took place in a popular

truck stop restaurant, the recording is replete with background

noise of dishes clattering, customers and waitresses conversing, a

baby crying, and the muffled roar of truck engines. Rex Moore's

voice and his foul language come in loud and clear, as he had

the microphone on his person. The appellant's voice is faintly

heard for the most part, and altogether unheard in other parts.

The tape recording is of poor quality and, without the Attorney

General's transcript to follow as it is played, the recording would

shed very little light on the transaction, other than showing that

Moore and appellant met and discussed something.

The question before us is whether admission of the recording

and transcript violated any rules of evidence. We think not.

First, the recording was played outside the presence of the

jury for the circuit judge. Both sides had an opportunity, in

camera, to point out objections to the recording or explain away

ambiguities. Boulden v. State, 278 Ala. 437, 179 So.2d 20

|

eet ct eat

— A-26 —

(1965); Wright v. State, 38 Ala.App. 64, 79 So.2d 66 (1954).

Secondly, the trial judge, after review, ruled the recording and

transcript were admissible for whatever weight the jury wished

to give them; a ruling which is subject to our limited review

only as to abuse of discretion. Thirdly, the recording was not

the only evidence offered, and other witnesses corroborated the

substance of the conversation recorded. Wright, supra. Fourthly,

the appellant testified that the recording was basically true and

correct. We, therefore, find the recording and transcript thereof

to be admissible for whatever weight they may have been ac-

corded by the jury. Lykes v. State, 54 Ala.App. 7, 304 So.2d

249 (1974).

VI

There was no exception or objection to the trial court's oral

charge to the jury. The trial judge refused eleven written re-

quested charges proposed by the appellant, and gave twenty-five.

We have carefully examined each of the refused charges and

find they were either affirmative in nature, and thus properly re-

fused under the evidence, or were incorrect statements of appli-

cable law, abstract in nature under the evidence, or fully and

substantially covered in the given charges or in the court's oral

charge. No error resulted in their refusal. Title 7, § 273,

Code of Alabama 1940; Lebo v. State, 55 Ala.App. 624, 318

So.2d 319 (1975).

We have reviewed the record, consisting of six volumes con-

taining 323 pages of pretrial testimony on motions and pleadings

and 723 pages of testimony on the merits and trial court records.

We have also examined the numerous exhibits accompanying

the record. The appellant raised 58 issues in his original brief

and reply brief which have been considered by this Court. After

receipt of briefs, we directed that supplemental briefs be filed ex-

panding on three crucial issues. Those issues have been ad-

eas eta enne wlan a

—_*

dressed in this opinion along with certain other issues raised by

appellant which merited serious consideration. Our review

convinces us that, although many close questions of law arose,

the trial court committed no error prejudicial to the appellant.

AFFIRMED.

All the Judges concur except Harris, J., concurs in the result

only. Bowen, J., not sitting.

— A-28 —

APPENDIX B

The State of Alabama — Judicial Department

The Supreme Court of Alabama

October Term, 1977-78

Ex parte: Kenneth Hammond

Petition for Writ of Certiorari to the

Court of Criminal Appeals

(In Re: Kenneth Hammond

S. C. 2515 v.

State of Alabama)

Beatty, Justice.

The petition for writ of certiorari to the Court of Criminal

Appeals is quashed as improvidently granted.

Writ Quashed.

Torbert, C. J., Bloodworth, Maddox, Jones, Almon and

Shores, JJ., concur.

Faulkner and Embry, JJ., dissent.

Faulkner, Justice (dissenting).

By quashing the writ the majority of this court lets stand

the judgment of the Court of Criminal Appeals. I would re-

verse and remand because, in my opinion, Hammond has been

denied due process of law, under the 14th Amendment to the

Constitution of the United States.

— A-29 —

Kenneth Hammond, while serving as a Commissioner on

the Alabama Public Service Commission was indicted for in-

citing to a felony-bribery. Under Count | of the indictment

the case went to the jury, charging Hammond in the disjunc-

tive with inciting Rex Moore or John Moore of Tops Vend-

ing Company, or Charles Price of South Central Bell Tele-

phone Company, to:

1. Corruptly offer, promise or give

2. To Hammond as an executive, legislative or judicial

officer;

3. A gift, gratuity, or thing of value, to-wit money or

proceeds from or in connection with the operation of

certain vending machines in, to-wit South Central Bell

Telephone Company buildings, Montgomery, Alabama,

in the amount of to-wit $10,000;

4. With intent to influence Hammond's vote, opinion, de-

cision or judgment on a cause, matter or proceeding

pending before him in his official capacity as Presi-

dent, Public Service Commission, to-wit a telephone

rate or charge increase requested by South Central

Bell Telephone Company.

Hammond was convicted by a jury, and the trial court sen-

tenced him to three years in the penitentiary. On appeal to the

Court of Criminal Appeals, affirmed. We granted certiorari on

the alleged ground of whether Hammond received constitu-

tional due process of law by being convicted without substan-

tial evidence on all elements of the crime to support the con-

viction. The majority did not write an opinion giving their

reasons for affirmance, yet it is obvious that the Court of Crimi-

nal Appeals had grave doubts about this case. The court said:

“A complex and many-faceted count is the basis for de-

priving appellant of his liberty. We have been presented

—~

with a hodge-podge of facts and are told that upon one

theory or another, they substantially prove every material al-

legation of the indictment. In order to find one theory or

one alternative which would support the instant conviction,

it has been necessary to fit facts together like connecting

pieces of a complex jigsaw puzzle. When the task is com-

pleted, we find only one theory from which a jury could

draw inference of guilt. The evidence that appellant incited

Price to bribe him, pursuant to the wording of Title 14,

§ 63, is far from overwhelming. Yet, we find it to be suf-

ficient to meet the bare minimum standards to support the

verdict of the jury.” (Emphasis added. )

Further, the court said:

“The first two alternatives of Count 1 are not sustained

by the proof. Although the jury could reasonably find that

appellant incited the Moores to offer him money, there is

absolutely no proof that the offer was for the purpose of

influencing appellant's vote on the Bell rate request. There

was not one iota of evidence that the Moores had any inter-

est whatsoever in the rate request. The Bell rate request

was never mentioned in any conversation between appellant

and the Moores. If Count 1 is sustained by the proof, it

must be on the third alternative concerning Charles Price.”

The majority, by quashing the writ, agrees with the Court

of Criminal Appeals. By doing so, they have introduced a new

standard of evidence to support a conviction—bare minimum

standards—in the field of criminal law. This is a dangerous de-

parture from the substantial evidence rule, and the “bare mini-

mum standards” violate Hammond's constitutional rights. In Ex

Parte Grimmett, 228 Ala. 1, 152 So. 263 (1963) this court

held that there must be substantial evidence to prove all the ele-

ments of the charge. The scintilla rule of evidence applicable in

civil cases does not apply to criminal cases because the presump-

— Ot

tion of innocence, shielding every prisoner at bar, is not overcome

by a mere scintilla of evidence.

Here, there was no evidence at all that Hammond was offered,

promised, or given any gift, gratuity, or thing of value to in-

fluence his vote on a pending rate case. This court held in Clem-

ons v. City of Birmingham, 277 Ala. 447, 171 So. 2d 456

(1965) that it is a violation of due process of the 14th Amend-

ment to the Constitution of the United States to convict and

punish a person without any evidence at all of his guilt. Where is

there any evidence at all of guilt here that Hammond incited

Charles Price to bribe him to vote favorably on a pending rate

case?

Price testified that in 1974, Hammond told him that he had

friends in the vending machine business and wanted to know

whether machines could be put in some of Bell's buildings.

He and Hammond discussed, on several occasions, whether the

machines (Moore’s machines) had been placed in Bell's build-

ings. Finally, the machines owned by Moore were placed in

the buildings in January, 1975. Two or three months later, he

testified, Hammond told him to take out the machines. On

direct examination Price testified:

“Q. Did you bring the subject up about these vending

machines or did Mr. Hammond?

“A. Mr. Hammond.

“Q. Tell the court and the jury, then, what was said

at that time, on that occasion, with reference to these

vending machines by the defendant?

“A. Well, he started asking me to take them out. |

said, ‘Well my Lord, you were after me a number of

weeks to put them in and they've been in two or three

months and why do you want me to take them out?’ And,

as I recall, he said. “They are a bunch of crooks and get

the machines out.’

a

— A-32 —

“Q. Did you take them out or take any steps to get

them taken out?

“A. Not immediately, this went on, you know, several

times, and finally it got right obvious he was pushing pretty

hard and I needed to do something.

“Q. Calling your attention up then to the latter part

of June, or the first part of July, had you done anything

up to that point, say, the first of July, that—with reference

to getting them out?

“A. I'm not sure just when the date was that I went

Out to see the Moores, but it was around that time, and

I'm not sure when it was. It was right around the first

of July.

“Q. Did Mr. Hammond say anything to you about—

with reference to—to refresh your recollection, that you

had talked long enough, that you better have some action

on them?

“A. Yes, sir. As I recall, the last conversation I had be-

fore I went out to see them, that he told me then, he said,

“We been talking about this for a long time. We are not

going to get along, and I mean for you to get these ma-

,”

chines out’.

It is this evidence that the State must rely on to support

the inciting of the bribery charge as it related to Price. To this

the Court of Criminal Appeals responded (the court had al-

ready said that “there is no evidence that Price was incited to

pay any money to appellant (Hammond]’): “If appellant, in

ordering Price to have the machines removed, was acting out

of revenge, or for the self-satisfaction he would receive by

punishing the Moores for not meeting his earlier demands, then

‘he would not receive anything to which the law would attach

value.’ However the jury heard the witnesses and observed their

— A-33 —

demeans,. They listened to the testimony of the Moores, Price

and of the appellant. ‘It could properly be found upon the

evidence, together with the inferences which need not be nec-

essary or unescapable so long as they are reasonable and war-

ranted that it had been proved beyond a reasonable doubt,’

that appellant intended that his threat, transmitted through

Price, would cause the Moores to give in and pay him money.

. . . Price’s action could thus be considered ‘a thing of value’

to appellant.” (Emphasis added.) This is, indeed, a bizarre

holding, yet the majority of this court has approved it without

Saying why.

It must be remembered that Hammond was charged with in-

citing Price to corruptly offer, promise, or give him $10,000,

with intent to influence his vote on a rate case pending before

the Public Service Commission. The proof just does not agree

with the charge.

It is my opinion that Hammond has been denied due process

of law. I am shocked that a “bare minimum standard of evi-

dence to sustain a conviction” rule adopted by the Court of

Criminal Appeals, has been approved by a majority of this

court. Is one class of defendants subject to the “substantial

evidence rule” and holders of a political office subject to the

“bare minimum standard” rule? What has happened to that

saying, “Equal justice under the law” without regard to that

person’s persuasion?

I would reverse and remand for a new trial.

Embry, J., concurs.

= M86 | a Ap 3S —

——-— Appeilant(s) granted 7 additional days to file reply briefs

APPENDIX C to and including

- —— Record on Appeal filed

Mailing Address: Telephone: 832-6480

P. O. Box 157 | —— Appendix Filed

Mont , Alab 36101

ntgomery, Alabama 36 —— Submitted on Briefs

Petition for Writ of Certiorari denied. No opinion.

Office of

Clerk of the Supreme Court

State of Alabama

Montgomery

——— Application for rehearing overruled. No opinion written

on rehearing.

——— Permission to file amicus curiae briefs granted.

Re: SC 2515

J. O. SENTELL

Clerk, Supreme Court of Alabama

Ex Parte: Kenneth Hammond

Petition for Writ of Certiorari to the

Court of Criminal Appeals

(Re: Kenneth Hammond vy. State of Alabama)

Appellant Appellee

You are hereby notified that the following indicated action

was taken in the above cause by the Supreme Court today:

—— Appeal docketed. Future correspondence should refer

to the above SC number.

—— Court Reporter granted additional time to file report-

er’s transcript to and including

—— Clerk/Register granted additional time to file clerk's

record/record on appeal to and including

—— Appell.... granted 7 additional days to file briefs to

and including

— A-36 — — A-37 —

f to a felony under circumstances and with results which

APPENDIX D would render him an aider or abettor in the commission

of such felony, he may be indicted, tried and punished as _

a principal in the commission of such felony or, at the

election and choice of the state, he may be proceeded

against as a violator of this statute; but in no event shall

a person be convicted and punished for the commission

‘of the same criminal act or acts both as a violator of this

statute and as a principal in the commission of the felony

to which he shall have incited.

Section | of the Fourteenth Amendment to the United States

Constitution provides:

SECTION 1

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

SECTION 326 (a3). INCITING TO A MISDEMEANOR.

Any person who incites to misdemeanor must be fined

not more than $500.00 and may also be imprisoned in

the county jail or sentenced to hard labor for the county

for not more than six months.

Section 326 (al-a4) of Title 14, Code of Alabama (1967)

provides: SECTION 326 (a4). ARTICLE CUMULATIVE; CRIMI-

NAL SOLICITATION.

SECTION 326 (a1). DEFINITIONS. This article is intended to be cumulative and supplemen-

For purposes of this division, the following words and

phrases shall have the respective meanings ascribed by

this section:

(a) INCITING TO A FELONY. The effort or endeavor

by one person to induce, procure or cause another to

commit a specific felony.

(b) INCITING TO A MISDEMEANOR. The effort or

endeavor of one person to procure or-cause another to

commit a specific misdemeanor.

SECTION 326 (a2). INCITING TO A FELONY.

Any person who incites to a felony shall be imprisoned

in the penitentiary for not less than one nor more than

10 years; provided, however, that, if such person incites

tary to existing law or laws. It is not intended to super-

sede either the common law or any penal statute now in

force. The common law offense of criminal solicitation

shall continue to be recognized in this state.

Section 63 of Title 14, Code of Alabama (1943) provides:

SECTION 63. BRIBERY OF EXECUTIVE, LEGISLA-

TIVE OR JUDICIAL OFFICERS.

Any person who corruptly offers, promises or gives to

any executive, legislative or judicial officer or municipal

officer or to any deputy clerk, agent or servant of such

executive, legislative, judicial or municipal officer after

his election, appointment, employment, either before or

— A-38 —

after he has been qualified, any gift, gratuity or thing of

value, with intent to influence his act, vote, opinion, de-

cision Or judgment on any cause, matter or proceeding,

which may be then pending or which may be by law

brought before him in his official capacity, shall on con-

viction be imprisoned in the penitentiary for not less than

two years nor more than 10 years.

Section 247 of Title 15, Code of Alabama (1940), provides:

SECTION 247. STATEMENT OF MEANS OR INTENTS

IN ALTERNATIVE.

When the offense may be committed by different means

or with different intents, such means or intents may be

alleged in the same count in the alternative.

— A-39 —

APPENDIX E

The State of Alabama

Montgomery County

Circuit Court of Montgomery County, August Term, A.D. 1975

Count I

The Grand Jury of Said County charge that, before the finding

of this indictment, Kenneth Hammond, alias Ken Hammond,

alias “Bozo” Hammond, whose true name is unknown otherwise

than stated, did unlawfully incite, towit: John Moore, Rex

Moore or Charles Price to a felony, towit: Bribery of an execu-

tive, legislative or judicial officer, in that the said Kenneth Ham-

mond, alias Ken Hammond, alias “Bozo” Hammond, induced,

procured or caused, or made an effort or endeavor to induce,

procure or cause the said, towit: John Moore, Rex Moore, or

Charles Price to corruptly offer, promise or give to an executive,

legislative or judicial officer, towit: Kenneth Hammond, Presi-

dent, Public Service Commission, State of Alabama, after his

election to said office. a gift, gratuity or thing of value, towit:

money or proceeds from or in connection with operation of cer-

tain vending machines in, towit: South Central Bell Telephone

Company buildings, Montgomery, Alabama, in the amount of,

towit: $10,000 with the intent to influence the act, vote, opinion,

decision or judgment on a cause, matter or proceeding then pend-

ing or which may be by law brought before the said Kenneth

Hammond in his official capacity as President, Public Service

Commission, State of Alabama, towit: a telephone rate or charge

increase requested by South Central Bell Telephone Company

styled, towit: South Central Bell Telephone Company, Petitioner:

Petition for Approval of New Schedules of Rates and Charges

—- A-40 —-

for Intrastate Telephone Service, Alabama Public Service Com-

mission Docket 16966, contrary to law and against the peace

and dignity of the State of Alabama.

Count I

The Grand Jury of said County further charge that, before the

finding of this indictment, Kenneth Hammond, alias Ken Ham-

mond, alias “Bozo” Hammond, whose true name is unknows

otherwise than stated, did unlawfully incite, towit: John Moore,

Rex Moore or Charles Price to a felony, towit: Attempt to bribe

Or corruptly solicit a public officer, in that the said Kenneth

Hammond, alias Ken Hammond, alias “Bozo” Hammond in-

duced, procured or caused, or made an effort or endeavor to

induce, procure or cause the said, towit: John Moore, Rex

Moore or Charles Price to corruptly solicit or attempt to solicit

or influence a public officer, towit: Kenneth Hammond, Presi-

dent, Public Service Commission, State of Alabama, by promis-

ing or agreeing to pay to the said Kenneth Hammond, a sum of

$10,000, from or in connection with operation of vending ma-

chines in South Central Bell Telephone Company buildings,

Montgomery, Alabama, to influence his official action as Presi-

dent, Public Service Commission, State of Alabama, to wit: with

regard to official matters or causes pertaining to South Central

Bell Telephone Company, a utility company regulated by the

said Public Service Commission, contrary to law and against the

peace and dignity of the State of Alabama.

Count III

The Grand Jury of said County further charge that, before the

finding of this indictment, Kenneth Hammond, alias Ken Ham-

mond, alias “Bozo” Hammond, whose true name is unknown

otherwise than stated, a legislative, executive or judicial officer,

:

'

|

— A-41 —

towit: President, Public Service Commission, State of Alabama,

did corruptly accept or agree to accept a gift, gratuity or other

thing of value, or a promise to make a gift of, towit: Money or

proceeds from or in connection with the operation of certain

vending machines, in towit: South Central Bell Telephone Com-

pany buildings, Montgomery, Alabama, in the amount of towit:

$10,000, under an agreement, or with an understanding that his

act, vote, opinion, decision or judgment would be given in a

particular manner, or upon a particular side of a cause, question,

or proceeding which was pending or may be by law brought be-

fore him in his official capacity as President, Public Service Com-

mission, State of Alabama, towit: a telephone rate or charge in-

crease requested by South Central Bell Telephone Company

styled, towit: South Central Bell Telephone Company, Petitioner:

Petition for Approval of New Schedules of Rates and Charges

for Intrastate Telephone Service, Alabama Public Service Com-

mission Docket 16966, contrary to law and against the peace

and dignity of the State of Alabama.

/s/ JAMES H. EVANS

District Attorney, Fifteenth

Judicial Circuit of Alabama

/s/ WILLIAM G. BAXLEY

Attorney General, State of Alabama