Petition — Allen v. Alabama

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‘Gupreme Court, U. fh”

FILED

IN THE MAY 7 1980

SUPREME COURT OF THE UNIT STATES

3 A DA CLERR

October Term 197 c=

eee ee ae -

MELBA TILL ALLEN, Petitioner

a v.

STATE OF ALABAMA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

ALABAMA COURT OF CRIMINAL APPEALS

RICHARD D. HORNE

301 St. Joseph Street

: P. O. Box 1706

@® Mobile, Alabama 36601

1-205-432-4546

Counsel for Petitioner

May 5, 1980

CITATIONS

Cases: Page

po SS Fe Pe |, ere eee io

SUL Us@co. 21a. (ania

ee ree oS a en reer 20

545 F.2d 460 (1977)

ee ee: ne i sb ere an 20

277 So.2d 882, 291 Ala. 67 (1963)

Giaccio v. State of Pennsylvania,... 15

382 U.S. 399 (1966)

Re Be ee Pe Pere ee eee 19, 21

4//_U.5. 438, 48 &.Ct. 5664,

72 L.Ed. 944 (1928)

ee BR et tier eee 13

334 U.S. 363 (1957)

Pia i Re ono tn hy eb be a een 21

531 F.2d 1281 (1976)

Wa CROGl tS OOO 6. bs oe eke eee ae 13

359 U.S. 535 (1959)

Statutes:

EE Weees: Lal Lal tas obec kha eens 2

Code of Alabama

SPOS vives 60. webb aes Oe calen on seem

ar Se 3 ae ) Pee een rainy sere a3

th ke ng annem Peg eraomrtr at 9, 12,8

POGULBCION. 29. 6c kaos Kes 6 eee cade 9,10,2

Act 1056

United States Constitution

PLS eH PEGs «sc 6k ts 60 wee owes se Me bh!

SAseeh ; RE so Ak eK se caee bn 4, 5

Fourteenth Amendment..........e. &, a2

GA Ala... Deil Rev We. SBCs iccsvccvess 20

wits

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1979

NO.

MELBA TILL ALLEN, Petitioner

Vv.

STATE OF ALABAMA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

ALABAMA COURT OF CRIMINAL APPEALS

The Petitioner Melba Till Allen re-

spectfully prays that a writ of certiorari

issue to review the judgment and opinion

of the Alabama Court of Criminal Appeals

entered in this proceeding on November 20,

1979.

OPINION BELOW

The opinion of the Alabama Court of

Criminal Appeals, not yet reported, appears

in the Appendix hereto as Exhibit 1. No

opinion was rendered by the Alabama Supreme

Court in denying certiorari.

JURISDICTION

The judgment of the Alabama Court of

Criminal Appeals was entered on November

20, 1979. A timely application for re-

hearing before that Court was denied on

December 20, 1979 and a timely petition

for a writ of certiorari was filed with

the Alabama Supreme Court. That petition

was denied on February 8, 1980 and this

petition for certiorari was within ninety

(90) days of that date. This Court's

jurisdiction is invoked under 28 USC 1257

(3).

QUESTIONS PRESENTED

1. Whether petitioner's right to due

process under the 5th and 14th Amendments

was violated by the cumulative acts of the

Alabama Ethics Commission and acts of the

Montgomery County District Attorney. Pe-

titioner asserts that the investigation

of petitioner during the fall of 1977 and

her subsequent indictment and trial were

without the requisite procedural safe-

guards so that her conviction is uncon-

stitutional. Petitioner further asserts

that §36-25-1, Code of Alabama (1975)

(hereinafter Ethics Law) is unconstitu-

tional as written and applied.

2. Whether the conduct of the Dis-

trict Attorney of Montgomery County amount-

ed to prosecutorial misconduct so as to

violate petitioner's right to due process

under the 5th and 14th Amendments of the

United States Constitution, and did it

operate to deny petitioner effective cour

sel in violation of the 6th Amendment to

the Constitution of the United States.

STATUTORY PROVISIONS INVOLVED

Code of Ethics for Public Officials,

Employees, Etc., §36-25-1, Code of

Alabama (1975 Act 130 of the

Alabama Legislature [1975]):

The full text of the Act is set

out in the Appendix hereto as

Exhibit 2.

5th Amendment to the Constitution

of the United States:

No person shall be held to answer

for a capital, or otherwise in-

famous crime, unless on a pre-

sentment or indictment of a grand

jury, except in cases arising in

land or naval forces or in the

militia, when in actual service

in time of war or public danger;

nor shall any person be subject

for the same offense to be twice

put in jeopardy of life or limb;

nor shall be compelled in any

~3e

criminal case to be a witness a-

against himself, nor be deprived

of life, liberty, or property,

without due process of law; nor

shall private property be taken

for public use, without just

compensation.

C. 14th Amendment to the Constitution

r of the United States:

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 citi-

zens of the United States; nor

shall any state deprive any per-

without due process of law; nor

deny to any person within its

jurisdiction the equal protection

of the laws.

D. 6th Amendment to the Constitution

of the United States:

In all criminal prosecutions, the

accused shall enjoy the right to

a speedy and public trial, by an

impartial jury of the state and

district wherein the crime shall

have been committed, which dis-

trict shall have been previously

ascertained by law, and to be in-

formed of the nature and cause of

_ the accusation; to be confronted

with the witnesses against him;

to have compulsory process for

obtaining witnesses in his favor,

and to have the assistance of

counsel for his defense.

STATEMENT OF THE CASE

During the summer and fall of 1977,

there began a series of events which cap-

tured the interest of the entire state.

Prompted by an anonymous letter,

the Alabama State Ethics Commission be-

gan an investigation of State Treasurer

Mrs. Melba Till Allen which drove a then

rollicking political campaign to Section

B of the state's newspapers.

This investigation culminated in a

press conference of December 1, 1977, at

which time those allegations of the com-

os San

mission report not already disclosed be-

came "public".

Despite the fact that the Commission

had used the Montgomery County Grand Jury's

subpoena power to compel certain banks to

turn over their records, Mr. Jimmy Evans,

District Attorney for Montgomery County,

had a subpoena served on the Commission

some twenty minutes after the report was

issued.

At that point, the District Attorney

took over and the Grand Jury proceedings,

with the publicity rivaling that of the

Ethics Commission, returned the five in-

dictments of which the instant case is

but one.

Following arraignment special pleas

were filed, which, among several, listed

as grounds the vagueness, overbreath, and

unconstitutionality of Act 130 of the

Legislature (1975). Said pleas were de-

nied.

The five indictments charged were:

(1) CC-78-319 - Use or benefit of a

private plane belonging to Ed

Gregory in return for depositing

state funds in banks in which he

had an interest.

-6-

(2) CC-78-320 - Two counts charging

placing state funds in the Ameri-

can National Bank of Geneva, Ala-

bama, in return for personal loans

or benefit.

(3) CC-78-321 - Placing of state funds

in banks in which Mr. Frank Merri-

field had an interest in return for

a personal loan or benefit from

Mr. Merrifield or his banks.

(4) CC-78-322 - Receiving a sum of

money or other value for placing

state funds in the American Nation-

al Bank of Geneva, Alabama.

(5) CC-78-402 - Failure to disclose

financial interests as mandated

by the Ethics Law.

The trial judge made it clear on sev-

eral occasions that the cases were to be

taken in their chronological order. When

the State of Alabama moved for a contin-

uance due to the alleged unavailability

of a witness the Judge found the witness

was available. This was based upon the

witness having called his doctor the day

after he received his subpoena and having

scheduled surgery two days before trial.

o Ja

On Monday, May 22, 1978, some four days

after the State of Alabama had moved for

a continuance due to the alleged absence

of a witness they were back in court ask-

ing for another continuance. On or about

Friday, May 19, 1978, Honorable Jimmy

Evans took the case of E. A. Grevory be-

fore the Grand Jury and indicted him on

an Ethics Law violation. This would seem

to be insignificant except for the fact

that Mr. E. A. Gregory was tobe the prime

state witness in Case CC-78-319 which had

been scheduled for trial on May 22, 1978,

the very same day this information was

first made known to the court.

Mr. Gregory, through his counsel, made

known to the court that he was willing,

ready and able to testify. The District

Attorney moved to nolle prosse with leave

to return. The court continued the case

generally, the petitioner moved for amis-

trial, reminding the court of its prior

rulings about expeditious treatment of

the trial calendar. The petitioner ob-

jected to Case CC-78-320 being moved up

when petitioner was prepared to try Case

CC-78-319.

The petitioner then moved for the judge

to recuse himself on the basis of grant-

ing of the continuance and the immediate

resetting of Case CC-78-320. This was on

the basis of violation of petitioner's

Sixth Amendment right to counsel. The

motion was denied and petitioner moved

for a mistrial.

Petitioner was put to trial on Case

CC-78-320 with two hours notice and the

jury returned a conviction on May 24, 1978.

On September 1, 1978, a hearing was

held on a Motion for A New Trial based

upon evidence discovered pursuant to pe-

tioner's Motion for Discovery on Cases

CC-78-320 and CC-78-402.

Upon hearing, petitioner presented tes-

timony of Alto V. Lee who was Chairman of

the State Ethics Commission during the

investigation of Mrs. Alien.

His testimony revealed that the Ethics

Law (Act 130, 1975 Legislature) was an

amendment of Act 1056 passed in 1973.

Testimony revealed that §16(q) of the

Original Act (1973) contained the follow-

ing language:

"The Commission shall prepare

and publish, prior to the im-

plementation of this act,

procedures for review or

appeal of any action taken

against Or in regard to any

person covered in this act."

Such language was contained in §15(c)

of the 1975 Act as well. However, on

August 30, 1974, the Commission adopted

Regulation 19 and mandated by §16(g) of

the 1973 Act. Such was not the case with

the 1975 Act, for the testimony revealed

that no implementation of §15(c) of the

1975 Act was made until February 3, 1978,

when the Commission adopted Regulation 19

of the 1973 Act. From the date of pass-

age of the 1975 Act until the February 3,

1978 meeting there was no procedure for

review of complaint. This would include

that period (September 19, 1977 through

December 1, 1977) when the Commission in-

vestigated Mrs. Allen.

At the close of the hearing the Motion

for A New Trial was denied as to all

grounds.

A hearing on the Motion for Rehearing

of the denial of Motion for New Trial wes

held on October 31, 1978. There testi-

mony was presented from Mr. Melvin G.

Cooper of the State Ethics Commission.

o10-

Mr. Cooper testified that neither he

nor any member of the Commission deliver-

ed any material received by the Commission

to Mrs. Allen. He further testified that

there was never any hearing, formal or in-

formal, under any Regulation 19 for Mrs.

Allen. The motion was denied.

REASONS FOR GRANTING THE WRIT

1. The decision below conflicts with

other decisions of this Court with regard

to what constitutes due process under the

5th and 14th Amendments to the Constitu-

tion of the United States in that §36-25-

1, Code of Alabama (1975) is unconstitu-

tional as written and as applied.

In both the Demurrer and Motion To

Dismiss filed prior to trial, the peti-

tioner asserted that the statute under

which she was being prosecuted was uncon-

stitutional. Those pleas properly put

before the Court the question of uncon-

stitutionality. Certain evidence was

presented on the question which will be

addressed in other argument.

However, on petitioner's Mot.on

for a New Trial, other grounds were raised

which showed the statute was unconstitu-

elie

tional in that it was never properly im-

plemented. While a motion for anew trial

may not have been the proper characteri-

zation for this motion the Court may dis-

regard the caption and consider the sub-

stance of the motion. (See §15-5-3, Code

of Alabama, 1975):

"In criminal proceedings, a

plea is to be determined a-

ccording to its substance

and not by its commencement

or conclusion."

The testimony of Mr. Alto V. Lee

revealed that the 1975 Ethics Law was an

amended version of the 1973 Act. The

1973 Act mandated that due process pro-

cedures be implemented and on August 30,

1974 they were. This became Regulation

19. The 1975 Act contained the same man-

date in §15(c). However, no action was

taken by the Commission to implement

§15(c) of the 1975 Act until February 3,

1978 when the Commission adopted Regula-

tion 19 of the 1973 Act.

The question before this Court is

whether Mrs. Allen could be prosecuted

under this statute when a condition pre-

cendent to its implementation had never

taken place?

oi 2a

Neither Regulation 19 of the old

Act nor any similar regulation was imple-

mented in the 1975 version until February

of 1978, some three months after the Ethics

Commission concluded its investiation.

This is in spite of the mandate of §36-

25=-5(14):

"In all matters that come

before the Commission

concerning a complaint

on an individual, the laws

of due process shall be

strictly adhered to."

The Court of Criminal Appeals'

decision is in conflict with Vitarelli v.

Scaton, 359 U.S. 535 (1959) where this

Court found that where an administrative

agency failed to follow its own rules and

regulations the dismissal of an employee

was illegal. See also, Servicev. Dulles,

354 U.S. 363 (1957).

This lack of any procedure may well

account for the cavalier way the investi-

gation was conducted.

Mr. Cooper, as Executive Director

of the Commission testified in post trial

hearings that there was never any hearing

involving Mrs. Allen, either formal or im

formal. Nor did she ever receive any ma-

=} 3<

terial from the Commission about the charges

against her. This evidence certainly flies

in the face of any claim by the Commission

that they afforded her the requis.ce due

process.

By the Demurrer and Motion to Dis-

miss the petitioner questioned the con-

stitutionality of the statute under which

she was tried. While the hearing styled

Motion For A New Trial or Motion For A

Rehearing may have been more properly

characterized as a Motion In Arrest Of

Judgment or Writ of Error the Court has

authority to disregard the caption and

proceed on the merits, §15-5-3, Code of

Alabama, 1975 (supra).

There can be no question but that

Mrs. Allen had fundamental liberty and

property rights at stake in their investi-

gation. Her job and freedom were both in

jeopardy. As proof, she is now without a

job and on appeal from a three year sen-

tence in the penitentiary.

Due Process has been defined as

requiring:

"That deprivation of life,

liberty or property by

adjudication be preceded

by notice and an opportunity

attn

for hearing appropriate

to the nature of the

case."

Boddie v. Connecticut,

401 U.S. 371 (1971)

Put another way:

"Both liberty and property

are specifically protect-

ed by 14th Amendment a-

gainst any state depriva-

tion which does not meet

standards of due process,

and such protection is not

to be avoided by a simple

label that a state chooses

to fasten upon its conduct

or its statute."

Giaccio v. State of Pennsylvania,

382 U.S. 399 (1966)

In the instant case there were no

procedures as evidenced by the Commission's

bootstrap action of February 3, 1978.

Therefore, whatever vague notions may have

controlled the investigation, they exist-

ed only in the mind of the Commission.

The decision below failed to ad-

dress the question of the lack of due

process during the Ethics Commission hear-

ing. The only reference to this argument

is found at p. 25:

"Affording the appellant

othe

in the present case

a hearing before the

Commission would not

have prevented the

District Attorney or

the Attorney General

of Alabama from prose-

cuting a violation of

this act.”

Can this Court or anyone perceive

that the petitioner was afforded due pro-

cess when she was never given a hearing,

she never could confront her accusers, nor

could she view the evidence against her

for it was subpoenaed just twenty minutes

after the Ethics Commission awarded its

decision.

This fundamental deprivation taints

their entire proceeding and gives this

Court ample grounds for granting this writ

2. The decision of the Alabama Court of

Criminal Appeals is in conflict with de-

cisions of this Court with regard to pros-

ecutorial misconduct and the right to

effective counsel.

The petitioner was arraigned on

March 30, 1978. Upon the hearing of sev-

eral motions the Court repeatedly advised

counsel that the cases would be tried in

chronological order in which they came

#1€-=

from the Grand Jury (CC-78-319, CC-78-320,

CC-78-322, CC-78-323 and CC-78-402). The

Court set the cases in sequence to be

tried on consecutive weeks, May 22, May

29, etc.

On May 16, 1978, the District At-

torney filed a motion for a continuance

of CC-78-319 based on the fact that the

petitioner had filed a petition for a

writ of mandamus with the Alabama Court

of Criminal Appeals. The Court noted the

application had been denied and denied

the District Attorney's motion for a con-

tinuance. Failing in that, the District

Attorney moved for a continuance based

upon the unavailability of a witness.

The trial court, sua sponte, made

an investigation and found that the wit-

ness had scheduled elective surgery the

day after he received his subpoena. The

operation was to be two days before trial.

The Judge found the witness to be avail-

able and denied the motion for a contin-

uance.

Two days later, on May 19, 1978,

the same District Attorney convened the

Grand Jury of Montgomery County and in-

dicted Ed Gregory. This would seem in-

oo) Fon

significant except for the fact that Ed

Gregory was to be the state's prime wit-

ness in CC-78-319, the case he had twice

tried to have continued.

On Monday, May 22, 1978, the Dis-

trict Attorney moved again to continue

CC-78-319 based upon the fact the state's

witness would be hostile (surprise) having

been indicted the previous Friday. This

was in spite of the fact that Ed Gregory

was in Court and willing to testify free-

ly without immunity. The Judge granted

the motion and continued CC-78-319 gen-

erally and set CC-78-320 for trial im-

mediately. Thereupon, a jury was struck

and trial commenced.

Both CC-78-319 and the indictment

against Ed Gregory were subsequently dis-

missed.

Petitioner raised vehement objec-

tion to the continuance on the grounds of

insufficient time to prepare and the sham

used by the District Attorney to accom-

plish the continuance. The objections

were overruled.

The Alabama Court of Criminal Ap-

peals ruled that the failure to grant a

continuance was not an abuse of discretion.

-18=

They further ruled that his acts in con-

junction with the grand jury:

",.we find no actions by

the prosecutor which would

constitute misconduct. All

of his actions were in

accord with the law and his

duty as a District Attorney."

(Appendix A, p. 28)

Petitioner asks this Court to lock

beneath the gloss of the District Attor-

ney's actions. The District Attorney cor

venes the Grand Jury. It is entirely

within his discretion who to call (and

who not to call), when to call them, etc.

Petitioner asserts the District

Attorney's actions were an intentional

manipulation of the judicial system to

accomplish what he could not do through

proper channels.

Federal cases have a dual thrust,

first, the Court must look to see whether

prejudice inured to the defendant because

of the alleged misconduct, secondly, and

of equal importance, is the exemplary af-

fect of the prosecution participating in

misbehavior.

Justice Brandes, in Olmstead v.

O. Bie 2? Usb. 428, 68 6.Ct. 3665 Te le

Ed. 944 (1928) stated the proposition that

-19-

prosecutorial misconduct was not a ques-

tion of fairness alone but a recognition

designed to:

"Maintain respect for the

law; ... tO promote con-

fidence in the administra-

tion of justice; ...to pre-

serve the judicial system

from contamination... Our

government is the potent,

the omnipresent teacher.

For good or for ill, it

teaches the whole people

by its example. Crime is

contagious. If the govern-

ment becomes a lawbreaker,

it breeds contempt for the

law; it invites every man

to become a law unto him-

self; it invites anarchy."

The Alabama cases are legion that

continuances are discretionary with the

Court and will not be overturned except

for clear abuse; 6A Ala. D-1l Key No. 586;

Davis v. Alabama, 545 F.2d 460 (1977);

Fletcher v. State, 277 So.2d 882, 291 Ala.

67 (1973).

However, certain factors are to be

weighed in assessing whether time to pre-

pare is available.

1) likelihood of prejudice

2) degree of complexity

3) availability of discovery

-20-

4) the adequacy of defense

actually provided at trial

5) the experience of counsel

6) representation by prior

counsel which accrues to

her benefit

U.S. v. Uptain, 531 F.2d 1281 (1976)

Any objective measure of these fac-

tors weighs in favor of the petitioner.

The case to be tried, CC-78-320, was ma-

terially different from the one it dis-

placed, CC-78-319. It concerned different

persons, a different geographical area and

different proof.

In the instant case the State of

Alabama, through its prosecutor, the

Honorable Jimmy Evans, violated both pur-

poses espoused in Olmstead, supra. There

can be no question but that petitioner

was prejudiced by going to trial with

little or no notice. Secondly, we have

a situation where the State of Alabama is

cast in the role of a law breaker by the

prosecutor's obvious manipulation of the

Grand Jury.

On either of those basis this Court

is justified in granting this petition.

2l1=-

CONCLUSION

For these reasons, a writ of

certorari should issue to review the

judgment and opinion of the Alabama

Court of Criminal Appeals.

ully submitted,

301 St. Joseph Street

P. O. Box 1706

Mobile, Alabama 36601

COUNSEL FOR PETITIONER

May 5, 1980

a9%e

CERTIFICATE OF SERVICE

I hereby certify that I have on this

day of , 1980, mailed

three copies of the Petition for Writ of

Certiorari, postage prepaid, to counsel

for the respondent and one copy to the

Clerk of the Alabama Court of Criminal

Appeals. I further certify that all

parties required to be served have been

served.

RICHARD D. HORNE

COUNSEL FOR PETITIONER

o 4 3a

THE STATE OF ALABAMA--JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1979-80

3. Div. 931

Melba Till Allen

State

Appeal from Montgomery Circuit Court

DeCARLO, JUDGE

Melba Till Allen was indicted by the

grand jury of Montgomery County on a two

count indictment charging her with vio-

lation of Act No. 130 of the Alabama

Legislature, Regular Session, 1975. The

counts charge that she used her position

as Alabama State Treasurer for personal

gain by obtaining loans which benefited

her in exchange for placing State treasury

funds in the American Bank of Geneva,

Alabama.

She was arraigned in the presence of

her attorneys and, subsequently, filed

demurrers and a motion to dismiss. The

demurrers and the motion to dismiss

raised both the vague and ambiguous

nature of the indictment and the uncon-

stitutionality of the statute under which

the indictment was brought. On the day

of the trial, a motion for a change of

venue based on the ground of pretrial

publicity in Montgomery was filed and

argued on behalf of the appellant. It

was subsequently denied.

A jury trial was held, and the appellant

was found guilty. She was sentenced to a

term of two years in the penitentiary

and notice of appeal was filed. Later,

a motion for a new trial was argued and

denied.

The indictment upon which this prose-

cution was based reads, in pertinent

part, as follows:

"COUNT I

"The Grand Jury of Said County

charge that, before the finding

of this indictment,

"MELBA TILL ALLEN

"{[W]hose name is to the Grand

Jury otherwise unknown, a

public official or employee,

to-wit: Alabama State Treasurer,

did unlawfully and feloniously

use an official position or

office, to-wit: the position or

office of Alabama State Treasurer,

to obtain direct personal gain

for herself or her family or any

business with which she or a member

of her family was or is associated,

by, to-wit: placing or agreeing

to place or offering to place

public or state funds or monies

over which she had official access,

custody and control, on deposit

in or with, to-wit: the American

Bank of Geneva, a state charatered

banking institution, located in

or near the city of Geneva,

Alabama, to obtain from the said

bank direct personal financial

gain, to-wit: a loan and/or

loans, or credit to the said

MELBA TILL ALLEN or a business

with which she or a member of

her family was or is associated,

which said use and gain is not

specifically authorized by law,

contrary to the provisions of

Act 130, Regular Session of the

Alabama Legislature, 1975, against

the peace and dignity of the State

of Alabama;

"COUNT II

"The Grand Jury of said County

further charges that, before the

finding of this indictment,

“MELBA TILL ALLEN

"[W]hose name is to the Grand Jury

otherwise unknown, a public official

or employee, to-wit: the Alabama

State Treasurer, did unlawfully and

feloniously use an official position

or office, to-wit: the position or

office of Alabama State Treasurer,

to obtain direct personal gain for

herself or her family or any

business with which she or a member

of her family was or is associated,

by, to-wit: placing or agreeing to

place or offering to place, or

agreeing to offer to place public

or state funds or monies over which

she had official access, custody

or control, on deposit in or with,

to-wit: the American Bank of Geneva,

a state chartered banking institu-

tion, located in or near the city of

Geneva, Alabama, in order to

receive, to-wit: a loan and/or

loans, or credit, and/or to obtain

direct personal financial gain for

the said MELBA TILL ALLEN or her

family or a business with which

she or a member of her family was

or is associated, which said use

and gain is not specifically

authorized by law, contrary to the

provisions of Act 130, Regular

Session of the Alabama Legislature,

1975.-. » o"

In support of this indictment the

State presented the following evidence.

Frances Merriwether Bolden was the

State's first witness. Before any

testimony was taken, a stipulation, which

included documents from the Secretary of

State showing that the appellant was

Treasurer of the State of Alabama, was

entered into by the defense counsel and

the State. The stipulation also recited

that the appellant was the State Treas-

urer of Alabama from the time she was

elected and was “at the time of the trial

the State Treasurer of Alabama.

Wiley O. Weaver was employed by the

State of Alabama in the State Auditor's

Office. He testified from "bank record

reconciliations" that as of June 1977 the

State Treasurer of Alabama controlled

$438,100,870.62. Of that amount,

$169,380,000 were time deposits and

$268,720,000 were demand deposits.

Weaver explained that demand deposits do

not draw interest and are used to pay

current bills owed by the State. Further,

he stated that time deposits draw interest

in whatever banks they are placed.

Francis Merrifield was a farmer from

DeFuniak Springs, Florida. He testified

that he had various business interests in

Alabama, the main one being a grain

elevator located in Geneva, “Consolidare

Enterprises" which included insurance

companies.

He admitted that he knew the appellant,

Vance Dyar, Bonny Sutton, George Pihakis,

Bill Ellis, and Louise Nolen. Merrifield

recalled an occasion, on or about July 6

or 7th, 1977, when he met the appellant,

Ellis, Dyar, Pihakis, Sutton and one

other unidentified person at the Down-

towner Motel in Montgomery, Alabama. The

meeting occurred in the lobby and, at the

time, the group discussed "Stars Over

Alabama" and Consolidare Enterprises.

Merrifield acknowledged that the appellant

made some comments concerning "Stars Over

Alabama." He said, "they had some bills

that were passed due and they were need-

ing some funding for a period." He

stated that the amount mentioned by the

appellant was "75,000 to $100,000,"

Also, Merrifield acknowledged that there

was a conversation concerning "Consoli-

dare." He testified that the conversa-

tion involved "the fact that we needed a

loan of 2.1 million dollars" and that the

money was to be raised "through bank

loans." According to Merrifield, the way

to get the bank loans was to be "getting

bank loans with their assistance by plac-

ing State funds in said bank." Merri-

field stated that Vance Dyar asked the

appellant if "she saw any problems."

According tc Merrifield, the appellant

resonded that "she didn't foresee any

problems."

During cross-examination, Merrifield

acknowledged that the appellant did not

do anything for him to get the loan.

Merrifield recalled that at the Down-

towner he had a conversation with Pihakis

concerning the National Bank of Commerce.

Merrifield stated, "I asked him to call

Mr. Weil in Birmingham and see if we

could get a loan through for $100,000 on

my Signature." Merrifield testified that

the day after the conversation on July 6,

1977, he saw Vance Dyar at the DeFuniak

Springs, Florida airport. At that time,

Merrifield endorsed the note for $100,000.

Merrifield said that he also received at

that time a handwritten letter which he

later destroyed. Merrifield recalled

that, after seeing Dyar at the airport,

he [Merrifield] received a telephone call

from the appellantwho told him that the

loan had been turned down in Birmingham.

Merrifield said that he was told by the

appellant that "it wasn't on account of

my financial statement, she told me it

was for some other reason, she didn't get

into it at great length." According to

Merrifield, the appellant was under the

impression that the loan had gone through.

She told him that they had written checks

in the amount of forty or fifty thousand

dollars that were outstanding when the

loan was turned down. Merrifield testi-

fied that he suggested to her that "they

could probably get fifty thousand dollars

at the American Bank in Geneva, Alabama

to make her checks good." He said that

the appellant "said she could put some

State funds down there to help the

situation."

During cross-examination, Merrifield

acknowledged that the appellant did not

have any interest in Consolidare Enter-

prises and that he owned the company

along with George Pihakis, Ferd Weil and

Farris Ritchey.

On further questioning, Merrifield

acknowledged that the appellant had an

interest in "Stars Over Alabama." In the

telephone conversation he had had with

her, she told him that the checks bounced

at the National Bank of Commerce and that

she would give the American Bank of Geneva

some deposits if a loan could be arranged

there. Further, he acknowledged that he

did not endorse appellant's fifty thou-

sand-dollar note to the American Bank of

Geneva and did not aid her in getting the

money.

Merrifield continued to testify that,

after the call to Mrs. Allen, he had a

conversation with H. G. Hayes, President

of the American Bank of Geneva. At that

time, he told Mr. Hayes, "I was interested

in getting a 2.1 and his bank wasn't big

enough to handle it, but he used associa-

ted banks and we needed fifty thousand

here to make her checks good up there

that were outstanding." Further, Merri-

field said, "it was understood there

would be deposits."

During the trial, Merrifield was asked

to examine State's Exhibit No. 4, which

was a letter from Francis Merrifield to

Mr. Charlie Martin of the National Bank

of Commerce in Birmingham, Alabama.

Merrifield testified that he had signed

the letter and that it had been brought

to him by Dyar or Bonny Sutton. Referring

to the letter, Merrifield stated, "it's

guaranteeing that loan up there for that

amount - a hundred thousand dollars."

Merrifield identified the note which read:

"Dear Mr. Martin: Please accept

this letter as my acknowledgement

that I have this date signed a

blank note which I understand will

be completed in the next few days

in the principal amount of $100,000."

William D. Robertson, Jr. was a cor-

porate pilot for Faith Investment Corpo-

ration of Pensacola, Florida. He ex-

plained that Faith Investment Corporation

was a holding company owned by E. A.

Gregory. After identifying a picture of

the corporate aircraft, Robertson stated

that, on July 7, 1977, he piloted the

airplane from Pensacola to Talladega,

Alabama and then to Montgomery. He

testified that, when the plane left

Pensacola, the passengers were Ed Gregory

and Gerald Atkinson. Robertson stated

that, after their departure from Talla-

dega, they flew to Montgomery where Dyar

and Sutton boarded the plane. They then

flew to Pensacola where Gregory and

Atkinson departed from the plane.

According to Robertson, he then flew

Dyar and Sutton to Defuniak Springs where

they remained some sixteen minutes before

returning to Montgomery.

Bonny Ray Sutton stated that he knew

the appellant. He recalled that on July

7, 1977, he accompanied Dyar to the Down-

towner Motel in Montgomery, Alabama. On

that date, he saw Mrs. Allen and she,

along with the two men was seated at a

table with Merrifield, Ellis, and Pihakis.

According to Sutton, they discussed "Stars

Over Alabama, a theme park or amusement

park or recreation area." Sutton acknow-

ledged that the discussion concerning

Stars Over Alabama and a loan to it was

held in the appellant's presence. Dyar,

Merrifield, and Pihakis were also present

during the discussion. He recalled that

the subject of a one-hundred thousand

dollar loan for Mrs. Allen was discussed.

Also, he stated that "Consolidare"

was discussed. He explained that Consoli-

dare was a holding company formed by

Pihakis, Merrifield, Ellis and some other

people for the prupose of acquiring an

insurance company in Florida. Sutton

recalled that there was discussion

relating to "Consolidare”" and "Stars Over

Alabama." He explained "that was the

whole purpose of being there. Mrs. Allen

and Mr. Dyar were going to receive a

$100,000 loan" from the National Bank of

Commerce in Birmingham.

Sutton testified that the name of

Ferd Weil was mentioned during the

discussion at the Downtowner Motel. He

explained that Ferd Weil was the vice

president of the National Bank of

Commerce and was also on the board of

directors of Consolidare.

Sutton explained that, after meeting

at the Downtowner, he accompanied Dyar to

the Treasurer's office. They saw the

appellant in her office where Dyar then

received a check from the appellant in

the amount of $200,000.

A copy of that check, payable to the

National Bank of Commerce in Birmingham,

Alabama, was introduced into evidence.

According to Sutton, after the check was

handed to Dyar, the two men left the

Treasurer's office and drove to Birmingham

with Pihakis. In Birmingham, they went

to a restaurant where they met Weil.

Later, Farris Ritchey arrived. Sutton

said that they remained at the restaurant

for a couple of hours, then went to the

Holiday Inn where they stayed for the

night. He testified that the next

morning they went to the National Bank of

Commerce in Birmingham, where they saw

Weil. Sutton stated that Dyar presented

Weil with the two hundred thousand dollar

check that he had received from the

appellant. After a few minutes, Weil

returned and handed Dyar a deposit slip

indicating a deposit in the account of

the State Treasurer, Melba Till Allen,

for the amount of $200,000. Also, Weil

gave Dyar a promissory note for a hundred

thousand dollars and some signature cards.

Dyar placed these in his pocket and,

afterwards, they drove to the Montgomery

Airport. In the waiting room at the

Montgomery Airport, they met the appellant

and Mrs. Nolen. Sutton stated that, at

the airport, the appellant composed a

letter which she signed and gave to Dyar.

The appellant and Nolen each signed the

note and the signature cards, which were

also given to Dyar.

Afterwards, they met Gregory and his

pilot outside. The appellant, Nolen, Dyar

and Sutton were present when Gregory,

referring to Dyar, said "I don't know

this fellow here, but Mrs. Allen is wel-

come to use my plane anytime she wants

to.”

After the conversation, he and Dyar,

along with Gregory and the pilot boarded

the airplane and flew to Pensacola,

Florida, where Gergory deplaned. He

stated that the flight was continued to

DeFuniak Springs where, on landing, they

saw Merrifield and his wife at the air-

port. According to Sutton, he saw Dyar

give to Merrifield the promissory note,

the handwritten letter from appellant,

and the letter that was given to Dyar by

Mr. Weil. Merrifield signed the note

which he handed back to Dyar but kept the

handwritten letter. Afterwards, they

boarded the plane and flew to Montgomery

where they drove by car to Point Aquarius.

Sutton stated that the next morning he

and Dyar drove to the National Bank of

Commerce in Birmingham and handed to Weil

the documents that had been signed by

Merrifield.

Sutton was asked what he recalled

about the letter which Mrs. Allen had

written to Merrifield. Sutton testified,

"I recall the letter said that in the

event that Mrs. Allen was to procure the

2.1 million-dollar loan for Mr. Merri-

field, that the one-hundred-thousand

dollar note at the National Bank of

Commerce, which Mr. Merrifield was sign-

ing would be moved to another bank."

During the trial, Sutton identified

State's Exhibit No. 8, a deposit slip in

the amount of two-hundred thousand dollars

to the National Bank of Commerce. Also,

the evidence showed that the check of the

State of Alabama Treasury Department was

written to the order of the National Bank

of Commerce on a "demand account."

Sutton then identified State's Exhibit

No. 9, a letter dated August ll, 1977,

Signed by Melba Till Allen and notarized

by Louise H. Nolen. Sutton read the letter

to the jury. The letter which was from

the appellant was directed to Selected

Banks of Alabama. That letter read:

"Gentlemen: This letter will

introduce Mr. V. C. Dyar, who is

assisting me in the formation and

combining of various properties

owned in part and in whole by me.

Mr. Dyar will explain in detail >

the proposed plan of action I am

seeking to develop. Any courtesies

extended Mr. Dyar on my behalf,

and any assistance you might

render will be greatly appre-

Ciated. Very truly yours."

[Emphasis added. ]

Sutton also identified State's

Exhibit No. 10, a check for $5,000,

payable to cash, signed by the appellant

and endorsed by Bonny R. Sutton. Sutton

that check was given to him at

Point Aquarius by the appellant for

expenses.

During cross-examination, Sutton

stated that he had been employed as a

club manager at Point Aquarius Country

Club, in Talladega County. He said that

in July, 1977, he was fired. According

to Sutton, he was told that Point Aquarius

had been sold to Ed Gregory and that he

"wasn't in tune with Mr. Gregory's method

of operating."

Sutton denied that he had been dis-

charged from the "Triple T Inns" for

excessive drinking, althought he did

admit that he was fired. Further, he

denied that he had been terminated from

the Point Aquarius position because he

was not performing his job in a satis-

factory manner.

On further cross-examination, Sutton

was asked if he considered any of the

letters carried by him from the State

Treasurer to the bank to be a bribe. He

answered "no, sir" but said "I thought

that it would be an inducement." Also,

he was asked if the appellant had re-

ceived anything of value from any type of

inducement he [Sutton] was involved in,

and Sutton responded "yes, sir." Further,

Sutton stated that he thought what she

had received was a thing of value and

said, "if a hundred thousand dollar loan

is something of value, then I would have

to say yes."

On further questioning, he admitted

that the appellant had not received any-

thing of value which she "didn't sign a

note for." Also, when questioned whether

he knew any people who could borrow money

without making a note, Sutton responded,

"I don't know of any that can borrow that

kind of money with doing that." However,

Sutton admitted that the appellant did

not received the $100,000 loan.

During re-direct examination, Sutton

recalled seeing Jim Case in Illinois and

testified that Case had said to him

[Sutton] "do you have any papers that Mr.

Dyar gave you, or did you get any papers

from Mr. Dyar that has anything to do with

Mrs. Allen?" Also, he said that the

appellant had paid Case's "way up there."

Sutton identified State's Exhibit No.

ll, a Certificate of Incorporation of

SAND, Inc. Further, he explained that

SAND was an "anagram" for Sutton, Allen,

Nolen and Dyar. Sutton testified that

the purpose of SAND was to purchase Point

Aquarius Country Club and Resort. Also,

he stated that he had seen all of the

parties sign the documents of incorpora-

tion except Louise H. Nolen and that Mrs.

Allen had signed on behalf of Nolen.

Sutton identified State's Exhibit No.

12, a check in the amount of $10,000,

payable to the Life Insurance Company of

America, signed by the appellant and

drawn on the National Bank of Commerce in

Birmingham, Alabama. He explained that

the check was to be given to "Secure an

option to purchase Point Aquarius."

Further, he stated that Point Aquarius

was never purchased by SAND, Inc.

G. Scott Ray, President of Citizens

Bank of Talladega, testified that in July,

1977, he Knew Bonny Sutton. During that

month, Ray cashed a check payable to cash

drawn on the National Bank of Commerce

and signed by the appellant. He stated

that the amount of the check was $5,000

and that it was endorsed by Bonny Ray

Sutton.

According to Ray, after the check was

returned for insufficient funds, he

called the appellant and told her what

had happened. He stated that the

appellant responded that "it should be

good, there was supposed to have been

some money transferred and I think per-

haps I interrupted her and said, ‘well,

I'll re-run it, or I will re-run, or,

maybe she said ‘that's fine' and that was

the gist of the conversation." Ray said

that, when the check was later presented

for payment, it was honored.

During cross-examination, Ray admit-

ted that Citizens Bank of Talladega had

approximately $496,000 in demand deposits

from the State Treasurer's Office.

Further, he stated that his bank was a

"State depository" for a State liquor

store account and that the total amount

of State funds deposited in his bank

fluctuated depending on the sales of the

State liquor store. Further, he acknow-

ledged that a normal practice in the bank-

ing community was to call the Treasurer's

office and ask for State funds when a

bank desired them. Ray also acknowledged

that the appellant had never asked for

anything of value in return for her de-

positing State money in his bank.

H. G. Hayes was president of the

American Bank of Geneva. He acknowledged

that he Knew the appellant, Dyar and

Francis Merrifield. He testified that,

during the summer of 1977, he had an

occasion to call the State Treasurer. He

explained that during the summer of 1977

a severe drought caused farmers in his

area to lose about eighty or ninety per-

cent of their corn crops. As a result,

they were not able to repay their crop

loans to the bank. He testified that he

talked to the State Treasurer about

getting some State deposits.

Sometime after talking with the State

Treasurer, Hayes said he saw Francis

Merrifield in July, 1977. On that

occasion he gave Merrifield a promissory

note and signature cards. Hayes stated

that Dyar was with Merrifield at the time.

Dyar was told by Hayes that the document

should be signed and returned to him along

with a financial statement. Further, he

said, "I told him not to forget we needed

State deposits."

Hayes identified State's Exhibit No.

13, a promissory note for fifty thousand

dollars dated August 10, 1977 and signed

by Louise H. Nolen and Melba Till Allen.

Hayes testified that the note was un-

secured.

Also, Hayes identified State's

Exhibit No. 15, a $500,000 check from the

appellant as Treasurer of Alabama, which

was payable to the American Bank of

Geneva and which had been deposited as a

time deposit. He identified the deposit

slip dated August 25, 1977 for a $500,000

time deposit at the American Bank of

Geneva. According to Hayes, he received

the money from Dyar at the airport then

later saw Dyar at the Downtowner Motel

with Louise Nolen and the appellant.

Hayes testified that after the meeting at

the Downtowner, they went to the Sahara

Restaurant in Montgomery, Alabama, where

he had dinner with Dyar, Nolen and the

appellant.

While at the Sahara, Hayes told Allen

that the bank needed State deposits and

said "in fact we were expecting one that

night and she did not have time to bring

it." Further, according to Hayes, she

did not have the deposit because of "an

interview she had had with a news report-

er, but that she would send it later, and

I asked her for demand deposits rather

than time if it was psosible." He

testified that she explained that, be-

cause the legislature was watching close-

ly any demand deposits, she could not

place big deposits at any one time at the

bank but would send it in small increments

from time to time. Hayes told the

appellant that Dyar had "promised us State

deposits."

Hayes acknowledged that other business

was discussed and said, "it was discussed

about a corporation that was going to be

formed to get letters from some nine banks

to consolidate some loans." At that

point, he identified State's Exhibit No.

16, a letter of guarantee for the letter

of credit. The letter of guarantee reads:

"To Selected Banks of Alabama, from:

Melba Till Allen. Gentlemen:

As the holder of this letter,

you are hereby guaranteed by me

that I accept total responsi-

bility for any Letter of Credit

issued by you to Leisure and

Development Properties, Inc.,

according to the terms and

conditions of said Letter of

Credit.

"I have read and understand

the terms amd conditions of your

Letter of Credit, thus making

this letter my personal

irrevocable guarantee to pay

same.

"Copy of this letter will serve

the purpose as the original.

Sincerely yours, Melba Till Allen."

Hayes also identified State's

Exhibit No. 9, a document given to him by

Dyar. Hayes stated that he had a copy of

the document in his office at the bank.

That document was signed by the appellant

and read:

"To: Selected Banks of Alabama.

From: Melba Till Allen. Gentle-

men: This letter will introduce

Mr. V. C. Dyar, who is assisting

me in the formation and combining

of various properties owned in

part and in whole by me.

"Mr. Dyar will explain in detail

the proposed plan of action I am

seeking to develop. Any courtesies

extended by Mr. Dyar on my behalf,

and any assistance you might

render will be greatly appre-

ciated."

According to Mr. Hayes, after the

meeting at the Sahara he met Dyar in the

office at the bank. At that time Hayes

received a $225,000 State deposit dated

September 2, 1977. Further, he testified

that the deposit was in the form of a

check payable to the American Bank of

Geneva and was a "demand deposit."

Hayes recalled "Leisure Development"

property being mentioned at the Sahara

by Mrs. Allen. He identified State's

Exhibit No. 19 by stating "it's a letter

of credit extended by our bank to Mrs.

Allen to Leisure Development Properties

in Montgomery."

According to Hayes, the original of

this letter was in his office. The

letter read:

"Leisure and Development Pro-

perties, Inc., 1445 Federal

Highway, Suite 100, Montgomery,

Alabama. Gentlemen: We here-

by establish our irrevocable

Letter of Credit No. 1 in your

favor, in the amount not ex-

ceeding $50,000.00 available

by your draft or drafts drawn

on us at sight on the follow~

ing conditions. ..."

Hayes identified his signature on the

Letter of Credit. After September 6,

1977, he spoke with Dyar again and asked

that the Letter of Credit be sent back to

the bank.

During cross-examination, Hayes

acknowledged that calling the State

Treasurer's office and requesting State

deposits was normal procedure for banks.

Also, he iacknowledged that a normal Fed-

eral Reserve practice was to use couriers

for delivering deposits.

Hayes testified that the Letter of

Credit issued by the Bank of Geneva to

Leisure Development Properties, Inc. was

rescinded prior to a call from the

appellant. Further, Hayes acknowledged

that the amount of deposits were not

unusual. He admitted that at the time

the $225,000 deposit was made, it brought

demand deposits in the Bank of Geneva to

approximately $400,000.00. Hayes ex-

plained "it could have been because

$225,000, had been taken out in August"

and the $225,000 deposit would have re-

plenished the amount held by the bank.

Hayes did not recall the exact dates

of withdrawal of the $225,000. deposit as

it related to the application of the ap-

pellant's loan, but said "the withdrawal

came before the application."

On further cross-examination, Hayes was

asked:

"Ga

"is

Mr. Hayes, I'm a bit confused

and to make sure I understand,

I'll ask you, sir, whether or

not the $500,000.00 the half

million dollar deposit, and

the $225,000.00 deposit came

after Mrs. Allen's loan ap-

plication?

Yes, sir.

All right, sir. And did the

$225,000.00 withdrawal come

just prior to her loan

application?

Yes, sar.”

Also, Hayes was asked whether the loan

made to the appellant was made in the nor

sponded ‘yes, sir'. He was then asked:

"6.

It was. I further asked you

was this loan made to Mrs.

Melba Till Allen in the ex-

pectation of any extra favors

or extra preferred treatment

at any time, and you told me,

no. Is that correct?

I don't recall--you asked me if

I was expecting to be repaid,

and I said, yes, sir.

"Q. And when you said, ‘repaid',

I said, ‘You expect that

loan to be repaid?'

"Q. And, in fact, we even started

talking about if you made

$50,000 loans around, you would

have a hard time explaining to

your Board of Directors and

your depositors if you didn't

expect to be repaid?

"A. That's right.

Finally, Hayes was asked:

"Q. I'll ask you, sir, whether or

not you would have made the

loan to Mrs. Melba Till Allen

had you not expected State

deposits?

"A. No. sir" [Emphasis added]

At the end of Hayes' testimony, the

State rested its case and the defense

moved to exclude based on the following

grounds:

1) "There has been no understanding

proven as required by law." (2) The

evidence submitted concerning the loan

at the National Bank of Commerce had not

been "tied up". Defense counsel submitted,

"It was put in there intentionally to try

to prejudice the jury, andit has not been

tied up."

At that point, the court said:

"Weil, I feel like there's

sufficient circumstantial

evidence to go to the Jury;

otherwise, a case such as this

could never be proven. I think

these are questions for the Jury

to determine, so I deny your

motion."

On the following day, after the trial

had recessed, the defense attorneys added

these grounds:

"(T)his provision under Section 3,

sub(a) of the Alabama Ethics Law,

we would say, first there has been

no showing that there was a direct

personal financial gain to the

defendant. Rather, the only charge

against her is that she received

credit or a loan. We submit to

the Court that that is not, as

a matter of law, a direct per-

sonal financial gain. Further,

there has been no evidence that

it is, as a matter of evidence.

So, a failure to show that ele-

ment of offense, the Motion to

exclude should be granted.

"Secondly, we would submit to

the Court that the words, 'no

public official shall use an

official position to obtain di-

rect personal financial gain,'

--in that sentence ‘'use' and

‘gain' are referred to, and again

in the last sentence of Section

3, sub(a) where it says, ‘unless

such use and gain are specifically

authorized by law.' We say, first,

that the use, as charged in the

indictment is that the State

Treasurer deposited money in

The American Bank of Geneva,

a State chartered banking in-

stitution.

"We say, first, that as charged

according to the proof that use

was, in fact, specifically autho-

rized by law. Secondiy, that the

gain arguendo, assuming that a

loan is a direct personal gain,

that the gain, namely, getting

the loan, signing the note at

the bank, is specifically autho-

rized by law. In short, that the

proof is not only failing, but

affirmatively shows the contrary;

that being, that the use of the

office and the gain received are

both specifically authorized by

law."

©} The court again denied the motion and

the defense presented the case for the

appellant. The appellant did not take

the stand but called twenty-four charac-

ter witnesses who testified as to her

good character.

The appellant complains that she was

denied effective counsel "by the court's

continuance of CC-78-319 and immediate re-

setting of CC-78-320 [the case under re-

view without allowance of additional] time

for preparation and subpoena of witnesses.”

In support of this contention, the ap-

pellant has cited Mars v. State, Ala. Cr.

App., 339 So.2d 104. In that case, Mars

had retained a Birmingham attorney, but

on the date of trial, the attorney was no

present. However, Mars was represented by

an attorney who had been appointed to rep-

resent him at arraignment. After arraign-

ment, the appointed attorney had withdrawn

in deference to retained counsel. When

the retained counsel did not appear, the

judge requested that counsel originally

appointed to represent Mars for arraign-

ment purposes sit with Mars to protect his

rights during the trial.

After the jury was sworn, appointed

counsel moved for a continuance on the

grounds that other cases appeared on the

docket ahead of the Mars case and that

Mars' retained counsel had informed the

State that he would appear in court that

afternoon. At that time the district at-

torney informed the court that retained

counsel had stated in a telephone con-

verstion that he did not represent Mars

Further, the district attorney asserted

that, because appointed counsel had rep-

resented/ Mars at arraignment and was pre-

sent, the case should go forward. At that

point, appointed counsel represented to

the court that she had withdrawn from the

case after the arraignment and was not

Supposed to represent Mars on the day of

trial.

The facts in Mars indicate that, after

retained counsel did not make an appearance

appointed counsel had only minutes to pre-

pare a defense.

The court determined that, under the

circumstances, the trial court had abused

its discretion by forcing Mars to trial.

This case is clearly distinguishable from

the case at bar on the facts alone. The

appellant, in the present case, at all

times had retained counsel. From the re-

cord we note that on March 30, 1977, at

the time of her arraignment on the four

cases, she was represented by retained

counsel. At that time, case number CC-78-

319 was set for trial on May 8, 1978, case

number CC-78-320 was set for trial on May

22, 1978, case number CC-78-321 was set

for trial on June 5, 1978, and case number

CC-78-322 was set for trial on June 19,

1978.

On April 27, 1978, a hearing was held

on motions filed by the appellant in the

above numbered cases, and an arraignment

was conducted in CC-78-402. At that time,

the appellant was represented by retained

counsel, and case number CC-78-402 was set

for trial on June 26, 1978.

On May 4, 1978, at proceedings to cor

sider motions filed by the State and the

defendant, the appellant was represented

by different retained counsel.

At this time, the court informed the

new attorneys that the cases had been set

in chronological order and that case num-

ber CC-78-319 had been set for May 8, 19-

78 and case number CC-78-320 was set for

May 22, 1978.

It is clear that the appellant's case

is distinguishable from Mars. The appell-

ant in the instant case was represented by

retained counsel at the time of her ar-

raignment until the completion of her

trial on May 24, 1978. We note that, al-

though there was a change in representa-

tion on April 27, 1978, the second group

of lawyers had approximately three weeks

to preparethe appellant's defense. As

the appellant recognized in her brief,

the "matter of continuances are addressed

to the sound discretion of the trial court

and without a showing of clear abuse, the

trial court's decision will not be dis-

turbed on appeal". Haback v. State, 338

So.2d 439; White v. State, 44 Ala. App.

312, 208 So.2d 22; Pendley v. State, 43

Ala. App. 140, 181 So.2d 624.

Finally, we note that the day when the

trial was actually begun, May 22, 1978,

was the date that the presiding judge had

originally assigned for the trial. Under

these circumstances, the appellant and

her attorneys had ample opportunity to

prepare her case, and the court's decision

to deny continuance was not an abuse of

the court's discretion.

Also, our examination of the entire

record reflects that the appellant has

not shown that she was, in fact, denied

effective assistance of counsel because

of the insufficient time to prepare her

case. It was not shown that counsel's

assistance was so grossly inept as to shock

the conscience of the court and to make

the proceedings "a farce and mockery of

justice". Freeman v. State, 43 Ala. App.

406, 191 So.2d 245; Walker v. State, Ala.

Cr. App., 355 So.2d 755; Robinson v.

State, Ala. Cr. App., 361 So.2d 1174.

Appellant insists that she was not af-

forded competent counsel when "testimony

showed lead counsel was suffering from

apparent drug abuse and associate counsel

was forced to withdraw". Counsel argues

that because "lead counsel was taking a

great quantity of pills and was behaving

in a generally slovenly manner," appellant

was denied due process.

The Supreme Court of Alabama, in Tay-

lor v. State, 291 Ala. 756, 287 So.2d 901,

when determing the question whether a de-

fendant was effectively represented, ob-

served that the 5th Cir. Court of Appeals

reviewed Williams v. Beto, 354 F.2d 698,

wherein the court stated:

"It is a general rule that

relief from a final conviction

on the ground of incompetent

or ineffective counsel will

be granted only when the

trial was a farce or mockery

of justice, or was shocking to

the conscience of the re-

viewing court, or the pur-

ported representation was

only perfunctory, in bad

faith, a sham, a pretense,

or without adequate opportunity

for conference and preparation."

[Emphasis added]

The Supreme Court in Taylor v. State,

supra, went on to say:

is frequently cited as a mini-

mum standard of competence and

efficacy. Other factors often

mentioned include the fairness

of the trial as a whole, the

reasonableness of counsel's

assistance, loyalty to client,

good faith, and the nature and

extent of counsel's pre-trial

preparation and opportunity for

conference." [Footnotes omitted]

The Supreme Court in Taylor, supra,

recognized:

misrepresentation is further

reason for the lack of an all-

encompassing definition of

‘effectiveness' or ‘'ineffec-

tiveness'. Effective assistance

does not mean counsel is without

error. What may later seem to

be error may have been a trial

tatic at the time. Further,

conviction of a client does not

prove the lack of skill or zeal

on the part of counsel."

[Citation omitted]

In Herring v. Estel, 491 F.2d 125 (5th

Cir.) the court stated:

"The governing standard is

reasonably effective assistance.

One method of determining whether

counsel has rendered reasonably

effective assistance is to ask

whether the proceedings were a

farce or a mockery. The farce-

mockery test is but one criterion

for determining if an accused

has received the constitutional

required minimum representation

(reasonably effective assistance)."

[Citations omitted]

We have reviewed the testimony in the

hearing on the motion for a new trial. In

that testimony, we found that one of ap-

pellant's attorneys stated that lead coun-

selwas showing "some slurred speech,..

lack of coordination, stumbling around,

saliva was running out of the sides of

his mouth." Further, appellant's attorney

said that he had seen lead counsel take

some sort of unknown pills and that they

were taken in a large quantity. Also, he

stated that, because of lead counsel's

condition, the matter was brought to the

court's attention.

The judge, during the hearing, stated

that he had observed lead counsel and,

"I didn't see anything that I thought was

wrong with his examination or was not

proper in the courtroom, from my observa-

tion. But, out of an abundance of caution

and I think you will recall, that I said

we would adjourn the case and come back

in the morning, and that was the last I

heard about it."

Counsel went on to say in conclusion,

that, in his opinion, lead counsel's "ac-

tions and his condition hada good deal to

do with the outcome of the case... in my

opinion it did have an adverse effect in

the presentation of her defense...."

At the conclusion of the testimony on

the motion for a new trial, the court

stated:

"I want the record to reflect

that as far as I was concerned

in my observation of Mr. Jordan,

I saw nothing wrong in his

approach of trying the case as

a lawyer."

We have examined the record and tran-

script of evidence in the appellant's case

to determine whether lead counsel had ren-

dered "reasonably effective assistance”

as a defense attorney for the appellant.

We recognize at the outset that our exami-

nation is confined to the written word

which comes through the record and tran-

script of evidence. Under these circum-

stances, we cannot determine precisely

what effect the conduct of the lead coun-

sel might have had in rendering effective

assistance of counsel.

This court does not have the luxury of

viewing first hand the activities of cour

sel during the progress of trial while the

evidence unfolds before the jury. The

trial judge is in a far better position

than we are to determine whether the lead

counsel's conduct was such that it did not

afford this appellant "reasonably effec-

tive assistance of counsel.

However, we note,from our examination

of the record and the transcript of evi-

dence, numerous motions were filed on be-

half of the appellant, countless objections

were made at the time of trial, many mo-

tions for a mistrial were made, and at the

conclusion of the trial, a motion to ex-

clude the State's evidence was made.

Based on the foregoing, we do not believe

that the appellant has shouldered the bur

den of proving her claim that she was de-

nied effective assistance of counsel. Al-

though we clearly do not condone the use

of narcotics by a trial counsel during

the trial of a client's case, we are also

aware that nowhere in the record does it

indicate that the use of narcotics was

brought to the attention of ond oie

judge, nor is it intimated that’ they were

used in contravention of the law. There-

fore, under the specific circumstances

outlined in appellant's contention, the

appellant's burden to prove a claim of

ineffective assistance of counsel was not

supported. See Herring v. United States,

389 F. 2d 281.

III

The appellant contends that the denial

of her request for grand jury testimony

of State's witnesses was error. She ar-

gues that, "where a witness had taken the

stand and a transcript of his grand jury

testimony was in the district attorney's

office not in possession of grand jury,"

the appellant should be given access to

that witness's testimony before the grand

jury.

This court in Sullivan v. State, 43

Ala. App. 302, 189 So. 2d 593, held that

the trial court in its discretion may

allow defense counsel to look at grand

jury notes. In Sullivan, defense counsel

requested that he be permitted to look at

the grand jury notes so that he might

better cross-examine the prosecuting

witness. The court refused the request,

but inquired of the State's attorney

whether he had referred to the grand jury

notes during his examination of the wit-

ness. The State's attorney replied that

he did have the notes before him but he

had not referred to them during the

questioning of the witness. At that

point, the court stated that, if the

prosecuting attorney had examined the

witness from grand jury notes, then the

defense attorney would have had the right

to inspect them.

Under the circumstances in the

case under review, we do not have a fact-

ual situation similar to that in Sullivan

supra. Nowhere is it shown that the

district attorney was examining any of

the witnesses from the grand jury notes.

See Hammonds v. State, Ala. Cr. App., 364

So. 2d 280. Therefore, it is our judg-

ment that no abuse of discretion was shown

here.

The appellant, by way of demurrer and

motion to dismiss, asserted that the

statute under which she was being pro-

secuted was unconstitutional. She also

asserts that during the hearing on motion

for a new trial other grounds were raised

which showed the statute was unconstitu-

tional because it was never properly

implemented.

She argues that the due process pro-

cedures which were mandated were never

implemented and that these procedures

were a condition precedent to implementa-

tion. The appellant maintains she was

not afforded due process because she was

never given a hearing, was not allowed to

confront her accusers, and was not allowed

to review the evidence against her.

The Alabama Supreme Court in Comer v.

City of Mobile, 337 So. 2d 742, considered

the constitutionality of Act No. 130 of

the Alabama Legislature, Regular Session

1975, and found the Act "not vague or

overbroad." Further, the court recognized

that the Act was constitutional when it

stated:

"The purpose of Act No. 130

was not so altered as to bring

the taint of unconstitutionality

to all of its sections not here-

tofore stricken."

Therefore, it is our judgment that

Act No. 130 of the Alabama Legislature,

supra, was found to be constitutionally

sound in Comer v. City of Mobile, supra.

We now turn to the assertion that tie

appellant was never afforded a due process

hearing where she could confront her

accusers and review the evidence against

her. Act No. 130, supra, has been codi-

fied in the Code of Alabama 1975, in §

36-25-1 through § 36-25-30. Section 36-

25-5, entitled "Use of Official Position

or Office for Personal Gain" was the

section under which the appellant was

prosecuted. That section reads:

"(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 asso-

ciated, unless such use and gain

are specifically authorized by

law. « «”

Section 36-25-27, reads, in pertinent

part:

"(b) All prosecutions for vio-

lations of the provisions of

this chapter shall be initiated

and prosecuted by the attorney

general of the state or by the

district attorney having

jurisdiction of the offense."

[Emphasis added].

This provision of Act No. 130, as

codified in the Code of Alabama 1975,

specifically directs that prosecution for

violations of Chapter 5, the code of

ethics for public officials and employees,

is to be initiated and prosecuted by the

district attorney. Although the "ethics

commission" established under this Act

has the authority to investigate and to

report suspected violations to the appro-

priate law enforcement authorities, nc-

where is it mandated that the commission

has any authority to prosecute. Afford-

ing the appellant in the present case a

hearing before the commission would not

have prevented the district attorney or

the attorney general of Alabama from

prosecuting a violation of this Act. It

was for the district attorney or the

attorney general to determine whether a

prosecution was to be identified.

Certainly, we do not believe that

appellant can reasonably maintain that

she was not afforded due process at the

jury trial by her peers. She was given

an opportunity to confront her accusers

and to review the evidence against her.

The appellant maintains that Act No.

130, supra, is also unconstitutional be-

cause the legislature, by the passage of

this Act, has "abrogated the Separation

of Powers by seeking to remove an Execu-

tive Office when such can only be accom-

plished by Impeachment."

She argues that constitutional

officers, such as the Treasurer of Ala-

bama, can only be removed by way of im-

peachment as specified in the Constitu-

tion.of Alabama, Article 7, § l. She

insists that any attempt to remove such

an officer by way of indictment and trial

would be to accomplish indirectly what

could not be accomplished directly. We

again turn to § 36-25-27, Code of Alabama

1975, which reads, in pertinent part, as

follows:

"(c) The penalties prescribed

in this chapter do not limit

the power of either house of the

legislature to discipline its

Own members or to impeach

public officials and do not

limit the powers of agencies

or commission to discipline

their respective officials or

employees."

Any prosecution under the provisions

of this Act would in no way amount to

impeachment. Offenders of this provision

of the Act can only be fined"not more

than $10,000, or. . . shall be imprisoned

for not more than 10 years or both."

Nowhere in this Act is there a pro-

vision for the removal of an officer by

way of impeachment. On the contrary, it

specifically mandates that the penalty

prescribed by this chapter in no way

limits the power of. the legislature to

impeach public officials. § 36-25-27-(c)

supra.

Based on the foregoing, it is our

judgment that Act No. 130, supra, is not

unconstitutional.

The appellant claims that the district

attorney was guilty of prosecutorial mis-

conduct "by his bringing the indictment

of Mr. E. A. Gregory three days before

the trial of CC-78-319 [in which Mr.

Gregory was to testify] for the sole pur-

pose of continuing CC-78-319."

The duties of the district attorney

are found in § 12-16-209, Code of Alabama

1975, which reads as follows:

"The district attorney must

attend before the grand jury

when required by them, and he

may do so whenever he sees fit

for the purpose of examining

witnesses in their presence or

giving them legal advice as to

any matter connected with their

duties; and he may appear be-

fore them at any time to give

information as to any matter

cognizable by them but he must

not be present at the expression

of their opinions or the giving

of their votes on any matter

before them... ." [Emphasis

added].

After the grand jury has been em-

panelled, the circuit judge in the county

where they are organized instructs the

grand jury "relative to the criminal laws

of this state. . . (b) It shall likewise

be the duty of these judges to charge the

grand jury as to all other matters which

may be required by law and to instruct

the grand juries that it is their duty to

indict for the above named offenses, if,

in the opinion of the grand jury, the

evidence justifies the indictment." Code

of Alabama 1975, § 12-16-202.

Further, the concurrence of twelve

jurors is required for the finding of an

indictment, Code of Alabama 1975, § 12-16-

204 reads as follows:

"The concurrence of at least 12

grand jurors is necessary to find

an indictment, and when so found

it must be endorsed ‘a true bill'

and the endorsement signed by the

foreman."

The powers and duties of the district

attorney are set out in Code of Alabama

1975, § 12-17-184, which, in pertinent

part, reads:

"It is the duty of every district

attorney and assistant district

attorney, within the circuit,

county or other territory for

which he is elected or appointed:

"(1) To attend on the grand

juries, advise them in rela-

tion to matters of law and ex-

amine and swear witnesses

before them.

"(2) To draw up all indict-

ments and to prosecute all

indictable offenses."

We recognize that it is within the

discretion of the district attorney to

call or not to call certain witnesses in

the presentation of the offense before

the grand jury although those witnesses

are subpoenaed by the district attorney,

the foreman of the grand jury or the

clerk of the circuit court, "on the

application of the grand jury." § 12-16-

197, Code of Alabama 1975. See also

§ 12-16-198.

Whether a particular person is indict-

ed for an offense is a matter addressed

to a grand jury. As the appellant recog-

nizes, the district attorney is not

present while the grand jurors are ex-

pressing their opinions on matters before

them, or when they are voting on any .:

matter under consideration.

Under the circumstances outlined in

this contention, we find no actions by

the prosecutor which would constitute

misconduct. All of his actions were in

accord with the law and his duty as a

district attorney.

VII

The appellant claims that the trial

court committed reversible error when it

allowed the State to introduce "myriad

pieces of evidence, or testimony of other

crimes or alleged acts of misconduct of

the appellant."

She argues that this testimony and

evidence were admitted in total dis-

regard and in violation of the laws of

evidence of the State of Alabama.

Further, she says the evidence was irrele-

vant, inflammatory and so prejudicial that

she was entitled to a new trial.

The evidence objected to by the

appellant, as noted in her brief, is

substantially as follows:

(1) Francis Merrifield's testimony

concerning Stars Over Alabama, Consolidare

Inc. and the National Bank of Commerce in

Birmingham.

(2) Merrifield's testimony about a

letter of guarantee from Merrifield to

Mr. Charlie Martin, President of National

Bank of Commerce, the subject of the

letter being a $100,000 loan.

(3) Testimony by William R. Robert-

son, Jr., a pilot for E. A. Gregory, con-

cerning the flight log of the plane and

who had ridden in it.

(4) The introduction of a picture of

Gregory's plane used by Dyar and Sutton

to fly to DeFuniak Springs, Florida.

(5) Testimony by Sutton concerning

the following:

a) "A conversation at which the Appel-

lant was present about a $100,000 loan

with the National Bank of Commerce and

Stars over Alabama. There was no testi-

mony that the Appellant participated, but

the Court ruled she need only be present,

see CC-78-321.

b) "A hearsay statement purported to

be made by Mr. E. A. Gregory that 'I don't

know this fellow here, but Mrs. Allen is

welcome to use my plane any time she wants

to.' See CC-78-319.

c) "The witness claimed to have

carried a letter from Mrs. Allen to Mr.

Merrifield which was subsequently des-

troyed. He then testified to its

contents, see CC-78-321.

ad) "That he had seen the Appellant

sign two checks, one for $5,000 cash and

one for $10,000 cash.

e) "On redirect he claimed to have

seen Mrs. Allen sign the name of Louise

Nolen to a Certificate of Incorporation

of Sang,Inc. and that she had said 'I

can sign her name as good as she can.'

The appellant has yet to be indicted for

forgery.

f) "That-the Appellant had written a

$10,000 check on the National Bank of

Commerce of Birmingham payable to the

Life Insurance Company of America.

CC-78-321."

(6) Ray's testimony about a $5,000

check cashed by Sutton which "bounced."

(7) Hayes' testimony about a personal

letter of guarantee given by Mrs. Allen

to selected banks of Alabama.

It is elementary that evidence of a

distinct substantive offense is not

admissible in support of another offense.

Gassenheimer v. State, 52 Ala. 313. Al-

though evidence of any offense other than

that specifically charged to appellant is

prima facia inadmissible, such evidence

will be received as an exception to the

general rule.

In Dennison v. State, 17 Ala. App.

674, 88 So. 211, we find the following

exceptions:

"[W)hen necessary to prove the

scienter or guilty knowledge,

when an element of the offense

charged; (2) when the offense

charged and the offense pro-

posed to be proved are so

connected that they form part

of one transaction; (3) when

itiis material to show the

intent with which the particu-

lar act is charged as criminal

was done, evidence of another

Similar act, though in itself

a criminal offense may be

given; (4) when it is necessary

to prove a motive for the

criminal act imputed, and there

is an apparent realtion or

connection between that act

and other criminal acts

committed by the accused;

(5) when it is necessary to

prove the identity of the

offender, or of an instrument

used in committing the offense;

(6) there are also cases in

which the accusation itself

involves a series of acts which

must be proved to make out the

offense; (7) and cases in which

the several offenses are all a

part of the res gestae."

The Supreme Court of Alabama in

Wilkins v. State, 29 Ala. App. 349, 197

So.

75, stated:

"(T)hat in a criminal prosecu-

tion proof which shows or tends

to show that the accused is

guilty of a commission of other

crimes or offenses at other

times, even though of the same

nature as the one chargec in the

indictment, is incompetent and

inadmissible for the purposes

of showing the commission of the

particular crime charged unless

the other offenses are connected

with the offense for which he is

on trial. In other words, proof

of such collateral offenses can-

not be used as substantive evidence

to establish the guilt of the

accused as to the crime charged."

[Emphasis added].

The Supreme Court went on to Say:

"This well established principle

of criminal evidence, however,

is subject to several equally

established exceptions. ...

The court continued.

"But this general rule is not

to be followed blindly and

evidence rejected on the sole

ground that it does show the

commission of another crime.

If evidence is relevant and

competent, it should be ad-

mitted regardless of its

incidental effect. [Emphasis

added].

@ The court went on to quote Underhill's

Criminal Evidence, Fourth Edition, § 181,

p. 318:

"The exceptions to the general

rule arise either from the

necessity of the case or the

nature of the offense, as for

example. . . .when the intent

or motive is to be proved from

the circumstances, or where the

identity of the accused is

expressly an issue."

The Supreme Court of Alabama then stated

that all the exceptions were listed in

@ Wharton's Criminal Evidence, 10th Ed.,

Vol. 1) .§ 30, Dp. 59.

After quoting the exceptions the

court stated:

"It is recognized that in many

instances the line of demarcation

is not clear, but the discretion

vested in the trial judge,

intelligently and considerably

exercised, will enable the pro-

secution fully to present the

charge, on the one hand, and, on

the other hand, to-.protect the

accused and secure to him the

rights guaranteed to him by the

Constitution and the laws."

[Emphasis added]

There are other cases which recognize

these exceptions to the general rule.

McCray v. State, 37 Ala. App. 661, 74 So.

2d 487; McCary v. State 39 Ala. App. 642,

107 So. 2d 903; Govan v. State, 40 Ala.

App. 482, 115 So. 2d 667; Johnson v.

State, Ala. Cr. App. 335 So. 2d 663; Jones

v. State, Ala. Cr. App., 362 50. 2d 1303.

In the present case, we are concerned

with the relevancy of the evidence and

testimony as pointed out by the appellant

in brief, and wehther this evidence and

testimony was admissible under the ex-

ception to show intent, scheme or design.

In Underhill, Criminal Evidence, 4th

Ed., § 184, p. 333, we find:

"All evidence is relevant which

throws, or tends to throw, any

light upon the guilt or innocence

of the prisoner. And relevant

evidence which is introduced to

prove any material fact ought

not to be rejected merely be-

cause it proves, or tends to

prove that at some other time

or at the same time the accused

has been guilty of some other

See

separate, independent and dis-

Similar crime. The general rule

is well settled that all evidence

must be relevant. If the evi-

dence is relevant upon the general

issue of guilt, or innocence, no

valid reason exists for its re-

jection merely because it may

prove, or may tend to prove,

that the accused committed some

other crime or may establish

some collateral and unrelated

fact." [Emphasis added].

Moore v. United States, 150 U. S. 157

37 L. Ed 996, 14 S. Ct. 26.

Ed.,

In McElroy's Alabama Evidence, 3rd

§ 69.01(1), p. 135, we read:

"However, it must not be con-

sidered that such a listing of

admissible purposes was in-

tended to be exhaustive. It

must ever be borne in mind

that the State may prove the

accused's commission of another

crime if such other crime is

relevant for any purpose other

than that of showing his guilt

through the medium of bad

Character.” [Emphasis added.)

Also, we find in McElroy, supra;

"The foregoing exclusionary rule

does not work to exclude evidence

of all prior crimes, only such

is offered to show the defendant's

bad character. If the defendant's

commission of another crime or

misdeed is an element of guilt,

or tends to prove guilt via bad

character, then proof of such

other act is admissible." —

TEmphasis added].

Finally, at § 69.01(6) in McElroy,

Supra, we see:

"Evidence of the accused's

commission of another crime

is admissible if such evidence,

considered with other evidence

in the case, warrants a finding

that both the now-charged crime

and such other crime were

committed in keeping with or

pursuant to a single plan, design,

scheme or system."

Lindsey v. State, 41 Ala. App. 85, 125 So.

2d 716; Whitehead v. State, 16 Ala. App.

427, 78 So. 467.

In the present :case, the contention of

the appellant that the evidence and testi-

mony of other acts were inadmissible be-

cause they tended to prove that she was

guilty of other crimes is not sustained.

It is well settled by the foregoing de-

cision that, while evidence of a com-

mission of one crime is not inadmissible

to establish a party's guilt to the

charged crime, such evidence is admissible

if relevant to prove another crime. Where

such evidence forms a link in a chain of

circumstantial facts which lead to the

transaction involved, we think there can

be no doubt under the authorities that

such evidence is admissible.

The evidence at appellant's trial

showed that two corporations in which

she was involved were in need of money.

Also, there was testimony tending to show

that a plan was designed to obtain loans

from State banks by offering those banks

large deposits in exchange for those

loans. Further, the evidence shows that

the first attempt was to obtain money

from the First National Bank of Commerce

in Birmingham. The testimony in this

regard involved the making of a loan

application and the signing of signature

cards and promissory notes, followed by a

trip to Florida on:‘an airplane belonging

to E. A. Gregory. The purpose of the trip

to Florida was to gain Merrifield's

signature as a guarantor of the loan.

There was evidence which showed that,

because the appeldant wrote checks on the

bank, she was under the impression that

the loan had been made. However, when it

was learned that the loan had failed, the

appellant then turned to the American Bank

of Geneva. At this time, signature cards,

}

a loan application and notes were signed

by the appellant in exchange for placing

State deposits in this bank. The presi-

dent, Mr. Hayes, granted the loan to the

appellant.

The evidence recited above reflects

that the State proved its case against

the appellant. All the evidence was

actually a part of one transaction en-

gaged in for the purpose of obtaining

financing in exchange for placing State

deposits. In this regard, we find that

the evidence was relevant to the offense

being tried.

After a careful examination of the

evidence and testimony, which appellant

contends was erroneously admitted, we are

clearly of the opinion that no reversible

error was shown. Also, we find nothing

which requires, or would justify an

interference with the judgment.

VIII

The appellant has challenged the

sufficiency of the State's evidence in

motions to exclude and for a new trial.

In the matter of the appellant's

association with the different organi-

zations, the foregoing facts show:

"The appellant apparently had

some interest in the develop-

ment of the park [Stars Over

Alabama].

"SAND is an acronym derived

from the last names of Bonny

Ray Sutton, Melba Till Allen,

Louise Nolen, and M. F. Dyar.

"Leisure and Development Pro-

perties, Inc. (Leisure) was a

corporation organized by the

appellant and others apparent-

ly for the purpose for con-

solidating certain loans by

obtaining letters of credit

from various banks in Alabama."

[Emphasis added].

Therefore, the evidence presented at

trial and recited above shows Mrs.

Allen's involvement in the above named

organizations. Her connection with these

organizations was also shown when she

signed a $100,000 promissory note to ob-

tain a loan for Stars over Alabama, Inc.

This note, endorsed by Merrifield, was

issued by the National Bank of Commerce

in Birmingham, (NBC), in exchange for a

deposit in NBC of $200,000.

The.evidence reflects that the

appellant and Dyar were assisting Merri-

field nad his group [Consolidare] in ob-

taining the loan of $2,100,000 for, Con-

sclidare, Inc. Additionally, at the time

the $100,000 note-was issued by NBC, a

vice-president of NBC in Birmingham, Ferd

Weil, was also a member of the Board of

Directors of Consolidare, Inc.

The evidence shows that NBC never made

the two loans to the appellant and Merri-

field. However, we note that the entire

scheme portrayed by the evidence was the

development of an Alabama theme park,

"Stars Over Alabama" which was to be

similar to "Six Flags Over Georgia." SAND,

Inc., over ten percent of which was owned

by appellant, was organized for the pur-

pose of owning and operating resort pro-

perties. SAND, Inc. was to purchase Point

Aquarius, a resort. Louise Nolen signed,

as appellant did, the $100,000 promissory

note, the purpose of which was to obtain

a loan for Stars Over Alabama, Inc., and

she, as well as appellant, was a stock-

holder in SAND, Inc.

See Forest Hill v. Latter & Blum, 349

Ala. 23, 29 So. 298, where the Supreme

Court of Alabama observed:

"The motion of separate corporate

existence will not be recognized

where a corporation is so or-

ganized and controlled and its

business conducted in such a

manner as to make it an instru-

mentality of another. .. . The

fiction was introduced into the

law for certain well-known pur-

poses, but it was not invented

to promote injustice or justify

wrongs and when so used it should

be disregarded. The courts will

not allow the corporate entity

to successfully masquerade

through its officers, stock-

holders, representatives or

associates. .. ." [Emphasis

added].

From such evidence, the jury could

reasonably conclude: (1) That Point

Aquarius was to be the site for "Stars

Over Alabama," or for a resort designed

to financially aid "Stara" through its

profits; (2) that Stars Over Alabama, Inc.

and SAND, Inc. were organized for the

same ultimate purpose, the development of

a theme park, and; (3) that the $100,000

promissory note which appellant signed

was, therefore, on behalf of SAND, Inc.

Although the $100,000 loan was never com-

pleted, the loan was solicited in ex-

change for a deposit of State funds by

the State Treasurer (Melba Till Allen).

Other actions taken by the appellant

indicated her direct association with two

of the corporations involved in these

transactions. On the date of SAND'S in-

corporation, Mrs. Allen gave M. F. Dyar

a check "for expenses" related to that

corporation. -She also drew the check

used as a binder for the purchase of Point

Aquarius, such purchase being a purpose

of SAND'S in@orporation. The failure to

purchase Point Aquarius and, therefore,

the fact that the binder check was never

presented for payment or cashed is im-

material to the issue of Mrs. Allen's

connection with SAND, Inc.

On August 10, 1977, the appellant and

Mrs. Louise Nolen signed a $50,000

promissory note issued by the American

Bank of Geneva. We note that appellant

and Mrs. Nolen were co-signers of the

$100,000 promissory note issued by NBC in

Birmingham.

We also note there was evidence that

the appellant received cash from that

note. The $50,000 promissory note con-

tains a notation of $1,125.00 interest

paid on September 12, 1977. A payment of

interest to keep a note current would

indicate that the $50,000 loan was con-

summated. Merrifield testified that he

learned from Mrs. Allen of the $100,000

‘loan being refused by NBC. He also testi-

fied that he learned from Mrs. Allen of

the $100,000 loan being refused by NBC.

He also testified that Mrs. Allen "was

under the impression the loan had gone

through and they had written checks to

the amount of forty or fifty thousand

dollars that were outstanding when it was

turned down." Merrifield suggested "that

they could possibly get fifty thousand

dollars at the American Bank in Geneva,

Alabama to make her checks good. He also

testified that appellant, in response to

his suggestion said, "she would put some

State funds down there to help the

situation." After his conversation with

appellant, Merrifield visited, during

July, 1977, with Hayes, one of the prime

owners of the American Bank of Geneva, in

Geneva, Alabama, for the purpose of dis-

cussing a $2.1 million loan for Merri-

field and a $50,000 loan for the

appellant. It was understood at that

time that the State deposits for the

American Bank of Geneva would be forth-

coming.

On August 10, 1977, appellant signed

the promissory note for $50,000, issued

by the American Bank of Geneva; on August

24, 1977, a time deposit of $500,000 in

State funds was placed in the American

Bank of Geneva, and on September 12, 1977,

a demand depsoit of $225,000 in State

funds was placed in the American Bank of

Geneva. From this evidence the jury

could have reasonably inferred that a

$50,000 loan was made by the American

Bank to Melba Till Allen in exchange for

State deposits being placed in the

American Bank.

Appellant issued a written personal

guarantee to pay any Letter of Credit

issued to Leisure and Development Pro-

perties, Inc. The issuances of the

promissory note and the Letter of Credit

by the American Bank of Geneva were done

in return for the $725,000 in State funds

to be deposited in that bank. The fact

that the Letter of Credit was later

rescinded was immaterial to the issue of

appellant's involvement in Leisure.

It may be contended that appellant's

personal guarantee on the $50,000 Letter

of Credit to Leisure is no indication of

any interest of appellant in that corpora-

tion. However the Alabama Surpeme Court

upheld a finding that evidence presented,

including evidence that the defendant

personally assued responsibility for

liabilities, support a finding that it

was appropriate to treat the corporation

and defendant as identical. Cohen v.

Williams, 294 Ala. 417, 318 So. 2d 279.

Finally, Mr. H. G. Hayes testified

that he would not have made the loan to

Melba Till Allen if he had not expected

State deposits in return.

Sufficient facts were shown from which

the jury could reasonably infer that the

offense had been committed, therefore,

the question was properly submitted to

the jury. Hill v. State, 207 Ala. 444,

93 So. 460; Spain v. State, 37 Ala. App.

311, 68 So. 2d 53; James v. State, 22

Ala. App. 183, 111 So. 648.

The rule is clearly established that

the weight and probative value of evidence

are for the jury. Where there is legal

evidence from which the jury can by fair

inference find guilt, this court has no

right to disturb the verdict. Bolton v.

State, 21 Ala. App. 373, 108 So. 631;

Trussell v. State, 57 Ala. App. 109, Hagg-

ler v. State, 49 Ala. App. 259, 270 So.

2d 690; Smiley v. State, Ala. Cr. App.

338 So. 2d 491.

Therefore, based on the recited facts,

it is our judgment that a jury could see

through the corporate machinations and

draw the inference that Mrs. Allen's

association was for the sole purpose of

promoting her corporate endeavors, all of

which would ultimately redound to a per-

sonal gain on her part.

Under these facts, the evidence was

sufficient to support the appellant's

conviction; therefore, the judgment of

conviction by the Montgomery Circuit

Court should be affirmed.

AFFIRMED.

Harris, P.J., Tyson, Bowen, JJ.,

concur, Bookout, J., concurs in

part and dissents in part.

BOOKOUT, J., concurring in part and dis-

senting in part

I concur in Parts I through IV, supra,

but dissent with Part VII and VIII of the

majority opinion.

From the State's evidence and reason-

able inferences therefrom, the jury could

have found the following facts to have

existed:

Mrs. Melba Till Allen, at the time in

question, was the Treasurer of the State

of Alabama. As Treasurer, she had abso-

lute discretion as to which banks re-

ceived state deposits and the amount of

each deposit.

"Stars Over Alabama" was a proposed

theme part to be built in Franklin and

Marion counties. The part was to be some-

what similar to one near Atlanta, Georgia,

named "Six Flags Over Georgia.” The

appellant apparently had some interest in

the development of the park, but the ex-

tent or percentage of her interest is

unknown.

Consolidare, Inc., was a corporation

organized for the purpose of acquiring

an insurance company in Florida. Francis

Merrifield, Ferd Weiil George Pihakis,

Bill Ellis, and Farris Ritchey were prin-

Cipals in Consolidare. Merrifield, a

millionaire residing in DeFuniak Springs,

Florida, apparently held a controlling

interest in Consolidare. The appellant

held no interest in that corporation.

The National Bank of Commerce (NBC)

is a bank doing business in Birmingham,

Alabama. Ferd Weil was a vice-president

of that bank during the time in question.

SAND, Inc., was a corporation organiz-

ed for the purpose of purchasing Point

Aquarius from Life Insurance Company of

America (LICA). SAND is an acronym de-

rived from the last names of Bonny Ray

Sutton, Melba Till Allen, Louise Nolen,

and M. FMDyar. The incorporating papers

were signed on July 15, 1977, at Point

Aquarius in Alpine, Alabama. Point

Aquarius is a country club and resort

consisting of approximately 1,200 acres

of land.

Also included are a club house of

about 50,000 square feet, a tennis shop,

a pool house, a maintenance building, an

Olympic size swimming pool, an equestrian

club, horse stables, two 18-hole golf

courses, 64 or 65 condominiums, and

various other facilities. Point Aquarius

is located in Talladega County.

Leisure and Development Properties,

Inc. (Leisure) was a corporation organized

by the appellant and others apprently for

the purpose of consolidating certain loans

by obtaining letters of credit from

various banks: in Alabama.

The American Bank of Geneva, Alabama,

is located in Geneva County in the ex-

treme southeastern corner of the state a

short distance from the Florida state

line. At the time in question, H. G.

Hayes was the president or chief operat-

ing officer of that bank. Geneva County

is located in what is commonly referred

to as the "Wiregrass" area of the state.

During the time in question, the Wire-

grass area had been under a: lengthy

drought condition which had caused the

local farmers to lose 80% to 90% of their

corn crops. Since many farmers were un-

able to repay loans due the American Bank

at that time, the bank was short of

operating funds and was in need of de-~

posits.

On July 7, 1977, the appellant, Vance

Dyar, Sutton, Merrifield, Pihakis, and

Ellis met in the lobby of the Downtowner

Motel in Montgomery. The parties at that

_ meeting discussed the possibility of ob-

taining loans for Consolidare and Stars

Over Alabama. The appellant and Dyar

were to assist Merrifield and his group

in obtaining a loan for $2,100,000 for

Consolidare. In return Merrifield and

Consolidare were to assist in obtaining

a loan of $100,000 for Stars Over Alabama.

Applications for the loans were to be

made to NBC and Ferd Weil was a vice-

president of NBC as well as a member of

the board of directors of Consolidare.

The conversations concerning the

loans were carred on in the appellant's

presence; however, Dyar and Pihakis did

most of the talking. Stars Over Alabama

"had some bills that were past due that

they were needing some funding for." To

obtain the loans for Consolidare and Stars

Over Alabama, the appellant was to assist

by placing state funds in NBC. At one

point in the conversation, Dyar asked the

appellant if she saw any problems with

that approach, and she said she "didn't

see any problems in it."

Following the meeting at the Down-

towner, the appellant accompanied by

Dyar and Sutton went to the State Trea-

surer's Office where she obtained a check

for $200,000 of state funds to be deposit-

ed with NBC. Dyar, Sutton, and Pihakis

then drove to Birmingham, spent the night,

and delivered the state check to Ferd

Weil at NBC on July 8. Weil then de-

livered to Dyar a promissory note for

$100,000 and signature cards. Dyar and

Sutton drove to Montgomery and met with

the appellant and Mrs. Nolen at the

Montgomery airport. The appellant and

Mrs. Nolen signed the promissory note and

ySignaturecardsa@md gave them back to Dyar.

The group then met with E. A. Gregory and

his pilot, William D. Robertston, Jr.

After a brief conversation, Dyar and

Sutton boarded the airplane with the pi-

> lot, Gregory, and a Mr. Gerald Atkinson.

The plane was owned by Faith Investment

Corporation of which Gregory was the con-

trolling stockholder. The plane then flew

to Pensacola, where Gregory resided, and

both he and Atkinson deplaned. Gregory

had no further connection with the instant

case. The pilot then flew Dyar and Sutton

to DeFuniak Springs, Florida, where they

met with Merrifield who endorsed the

promissory note and signature cards and

gave them back to Dyar.

Dyar and Sutton flew back to Mont-

gomery, drove to Point Aquarius, spent

the night, and drove to Birmingham the

next morning. They then went to NBC and

gave Weil the documents Signed by the

appellant, Nolen, and Merrifield. How-

ever, NBC never made the two loans to the

appellant and Merrifield.

On July 15, 1977, SAND was incorpora-

ted at Point Aquarius. At that time the

appellant signed a check on NBC payable

to cash and gave it to Dyar for expenses.

Dyar had Sutton take the check to the

Citizens Bank of Talladega, Alabama, cash

it, and return the funds to Dyar. Some

time around July 25, the president of

Citizens Bank called the appellant and

informed her that the check had not been

honored by NBC due to insufficient funds.

The appellant told him the check should

be good as some funds should have been

transferred to cover it and requested it

be presented again for payment. Citizens

Bank then returned the check to NBC, and

it was honored and paid on July 25.

The appellant likewise wrote a check

for $10,009 at Point Aquarius on July 15

payable to LICA. That check was written

on NBC and used as a binder on the pur-

chase of Point Aquarius by SAND. However,

the sale of Point Aquarius did not take

place and that check was never presented

for payment or cashed.

On some unspecified date in early

June 1977, H. G. Hayes telephoned the

appellant requesting state deposits for

the American Bank due to the drought con-

ditions in Geneva County. On some un-

specified date in July, Dyar and Merri-

field came to the bank and picked up a

$50,000 promissory note and signature

cards from Hayes. As they departed Hayes

reminded them that he needed deposits in

his bank.

A copy of the $50,000 promissory note

dated August 10, 1977, was admitted into

evidence. That note was Signed by the

appellant and Mrs. Nolen. The credit

approval space on the note contained a

signature purporting to be that of Hayes

although he testified that it was not his

signature. There is no evidence that the

appellant ever received any cash pro-

ceeds from the note. The bank later

issued only a letter of credit. Some

interest was paid on the note, but the

record does not reveal who paid it.

On August 24, 1977, Dyar met with

Hayes at the Geneva Airport and delivered

a $500,000 state time deposit for the

American Bank. Later, on some unspecified

date, Hayes had dinner with the appellant

in Montgomery at the Sahara Restaurant

and asked for some demand deposits for his

bank. The appellant explained that she

could not give him a large deposit be-

cause the legislature was scrutinizing

demand deposits very closely. However,

she stated that she could give him some

deposits in small increments. Thereafter,

on September 2, Dyar delivered a $225,000

demand deposit to Hayes from the State

Treasurer's Office.

On September 6, 1977, Hayes issued a

letter of credit to Leisure. The letter

of credit read in pertinent part as

follows:

"Leisure & Development Pro-

perties, Inc. "1445 Federal

Hwy. Suite 100 "Montgomery, Al.

"Gentlemen:

74°

"We hereby establish our

Irrevocable Letter of Credit

No. l in your favor, in the

amount not exceeding

$50,000.00 available by your

draft or drafts drawn on us

at sight on the following

conditions:

"),. The amount and date of

negotiation of each draft drawn

under this Letter of Credit

must be endorsed on the back

hereof by the negotiating bank

and this Letter of Credit must

be cancelled and attached to

the draft which exchausts the

credit.

"2. Drafts drawn under this

Letter of Credit must be marked

'Drawn under the American Bank,

Letter of Credit No. 1, dated

September 6, 1977.'

"3, If the draft is drawn by a

corporation, a corporate resolu-

tion evidencing the authority

of the persons signing on be-

half of the corporation must

accompany the draft or have

been previously furnished us.

"4, All drafts must be nego-

tiated after Septmeber 6, 1980

(sic) and before September 16,

1980, on which date this Letter

of Credit expires.

"S, We hereby agree with bona-

fied holders of this Letter of

Credit that all drafts drawn

under and in compliance with

the terms of this Letter of

Credit shall be duly honored

upon presentation and delivery

at the American Bank, Geneva,

Alabama, in accordance with

the terms hereof.

"Sincerely,

"H. G. Hayes, Jr.

"President

"John T. Ward

"Chairman of the Board."

On some unspecified date after the

issuance of the letter of credit, Hayes

spoke with Dyar and requested that the

letter of credit be returned to the bank.

Dyar complied with the request and re-

turned the letter of credit, likewise on

some unspecified date. At some later

unspecified time after the issuance of

the letter of credit, appellant called

Hayes and requested that the letter be

rescinded. Hayes stated that he had

already rescinded it at the time he

received the appellant's call.

On August 11, the day after the

$50,000 note to the American Bank was

signed, the appellant wrote and delivered

to Dyar the following letter:

"To: Selected Bank of Alabama

"From: Melba Till Allen

"Gentlemen:

"This letter will introduce

Mr. V. C. Dyar, who is assist-

ing me in the formation and

combining of various properties

owned in part and in whole by me.

"Mr. Dyar will explain in detail

the proposed plan of action that

I am seeking to develop. Any

courtesies extended to Mr. Dyar

on my behalf, and any assistance

& you might render will be greatly

appreciated.”

Likewise, on August 23, 1977, the

appellant wrote, signed, and delivered to

Dyar the following letter:

"To: Selected Bank of Alabama

"From: Melba Till Allen

"Gentlemen:

"As the holder of this letter,

you are hereby guaranteed by me

that I accept total responisi-

bility for any Letter of Credit

issued by you to Leisure and

& Development Properties, Inc.,

according to the terms and

conditions of said Letter of

Credit.

"T have read and understand the

terms and conditions of your

Letter of Credit, thus making

this letter my personal irrevo-

cable guarantee to pay same.

"Copy of this letter will serve

the purpose as the original.

"Sincerely yours,

"Melba Till Allen."

H. G. Hayes testified tha while hav-

ing dinner with the appellant in Mont-

gomery he told her that Dyar had promised

him some state deposits. He did not re-

call what, if anything, the appellant

replied. He did, however, recall other

business being discussed at the meeting.

"It was discussed about a corporation that

was gOing to be formed to get letters of

credit from some nine banks to consoli-

date some loans." The appellant's letter

to selected banks of Alabama dated August

ll, 1977, was identified by Hayes. He

stated that he had one in his bank, but

did not recall from who he received it.

That letter was then introduced into evi-

dence as State's Exhibit No. 9. Hayes

next identified the appellant's letter of

August 23, 1977, to selected banks of

Alabama. He stated that the letter was

given to him by Dyar, and it was intro-

duced into evidence as State's Exhibit

No. 16.

At the end of the State's case in

chief, the defense moved to exclude the

evidence on the ground inter alia that

there was no showing that appellant

received a direct personal financial gain

in the transaction with the American Bank.

The trial court denied the motion. The

existence of and extent of the appellant's

interest in the corporation which re-

ceived the letter of credit from that

bank was a crucial element of proof at

trial and now on appeal.

When the prosecution attempted to

admit into evidence the American Bank's

letter of credit to Leisure, the following

occurred:

"MR. JORDAN: (viewing document)

It purports to be a letter deal-

ing with Leisure Development

Corporation or a business that

we're unfamiliar with, and un-

less he can tie Mrs. Allen in as

a stockholder, director, in-

corporator, or officer of Leisure,

I don't see what it has to do with

her. She may have been a

guarantor for a note for them

but that's all.

"THE COURT: Does it have any

connection with this?

"MR. EVANS: Yes, Sir. I be--

lieve this witness, Your Honor,

testified that at the Sahara

Mrs. Allen told him she was

forming this holding company---

"MR. JORDAN: Your Honor ---

"MR. EVANS: I believe you heard

the witness. He said he was out

at the Sahara and Mrs. Allen

discussed with him the formation

of a holding company there for

her indebtedness.

"THE COURT: Of Leisure Company?

"MR, EVANS: Yes, sir. He said

Leisure Development from the

stand.

"THE COURT: Was that your

testimony?

"MR. JORDAN: He didn't name

the company ---

"MR. EVANS: Yes, he did. Let's

play the record back.

"THE COURT: No, let's just ask

him the question.

"MR. EVANS: All right.

"BY MR. EVANS: (Continuing)

"QO. Mr. Hayes, do you remember

the Leisure Development property

being mentioned at the Sahara

by Mrs. Allen?

"A. Yes, sir.

"THE COURT: All right. Over-

rule your objection."

(Emphasis supplied.)

The letter of credit was then admitted

into evidence and read to the jury.

The prosecution's representation to

the trial judge was inaccurate. The

record reveals that in Hayes' earlier

testimony he merely said, "It was dis-

cussed about a corporation that was go-

ing to be formed to get letters of credit

from some nine banks to consolidate some

loans." The only mention of Leisure was

in the "Selected Banks" letter from

appellant which Hayes read into evidence.

Hayes did not say in his prior testimony

that appellant told him she was forming

Leisure, althought an inference can be

drawn that Leisure was the corporation she

was discussing. However, nothing in

Hayes' testimony tends +o prove the ex-

tent of her ownership or interest in

Leisure. That the appellant mentioned

"Leisure Development property" in the

conversation likewise falls way short of

proving the extent of her interest or

ownership in that corporation.

The appellant's letter of August ll

to selected banks stated that Dyar was

assisting in the "formation and combining

of various properties owned in part and

in whoe by me." She stated therein that

Dyar would explain the proposed plan of

action and stated that she would appre-

ciate any courtesies extended to Dyar on

her behalf. The August 23 letter to

selected banks stated that she guaranteed

and accepted total responsibility for any

letter of credit issued by such selected

bank to "Leisure and Development Pro-

perties, Inc." She stated therein that

she had read and understood the terms and

conditions of the letter of credit from

the selected bank or banks and that her

instant letter was her personal irrevoc-

able guarantee to pay the same.

That the appellant had some interest

in securing a letter of credit for Leisure

is obvious from the letters of August ll

and 23 received by Hayes. The extent of

her interest or the percentage of her

ownership in such business however is not

disclosed in the record. No certificate

of incorporation was introduced to connect

the appellant with the ownership of the

corporation, no testimony was given as to

her ownership of the corporation, no

testimony was given as to the proposed

plan of action she was seeking to develop

through Dyar and what connection such

plan had with various properties owned in

part or in whole by her.

The record does connect the trans-

actions at NBC with appellant's desire

initially to obtain the loan or letter of

credit from the American Bank of Geneva.

The appellant was attempting to obtain a

$100,009 loan through NBC in connection

with developing the theme park Stars Over

Alabama. The letter of credit from the

American Bank of Geneva was to Leisure

and Development Properties, Inc., and was

for the purpose of some unstated "pro-

posed plan of action" which she was seek-

ing to develop. Merrifield testified that

after the NBC loan was turned down he had

a discussion with the appellant:

"A, She was under the impression

the loan had gone through, and

they had written checks to the

amount of forty or fifty thousand

dollers that were outstanding when

it was turned down.

"OQ. What, if anything, else did

you say to her?

"A, I suggested that they could

probably get fifty thousand

dollars at the American Bank in

Geneva, Alabama, to make her

checks good.

"9. And what, if anything, did

she say to you after that?

"A, She said she could put

some State funds down there to

help the situation."

Thus, the only connection between NBC

and the American Bank loan appears in

Merrifield's testimony that "they" had

some $40,000 to $50,000 in outstanding

checks in NBC and that appellant would

send some state funds to the American

Bank to help in obtaining a loan to cover

those checks. Stars Over Alabama then

faded from the record. When the trans-

action with the American Bank was finally

consummated in August and September, it

involved not Stars Over Alabama, but

Leisure and Development Properties, Inc.

There is little doubt that the

appellant used her position to obtain a

letter of credit for Leisure and Develop-

ment Properties, Inc. The inference is

that she had some financial interest in

the corporation as she guaranteed and

accepted responsibility for any letters

of credit issued to Leisure. It is pro-

bable that the properties owned "in part

and in whole" by the appellant with which

Dyar was dealing had some connection with

Leisure. The only thing that is clear is

that Hayes issued the letter of credit to

Leisure in return for not only the Allen-

Nolen promissory note of August 10, but

because of the state deposits which

appellant would place in the American Bank.

The placing of state deposits in banks

to induce either personal or corporate

loans is not mala in se, but is mala

prohibita.: Such conduct is only illegal

because the Ethics Act of 1975 declares

it to be so. And to bring that conduct

within the prohibition of that Act, the

State must prove each element of the

offense as written by the legislature.

It is an age old principle in our

system of justice that criminal statutes

are strictly construed in favor of persons

sought to be subjected to their operation.

Schenher v. State, 38 Ala. App. 573, 90

So. 2d 234, cert. denied, 265 Ala. 700,

90 So. 2d 238 (1956). Such statutes reach

no further in meaning than their words.

Fuller v. State, 257 Ala. 502, 60 So. 2d

202 (1952). Therefore, regardless of how

improper the conduct of an accused may

appear, the State may not brand that

person a criminal and imprison him except

by strict proof conforming to the wording

of the criminal statute in question.

The State proved that the appellant

used her official position to obtain a

letter of credit for Leisure and Develop-

ment properties, Inc. This alone amounts

to no crime under the statute. The State

must have also proved that through the

letter of credit she obtained "a direct

personal financial gain" for herself or

for a business with which she was assoc-

iated.

The evidence fails to establish a

"direct personal financial gain" pro-

hibited by the statute. The gain, if any,

would have been through one of the corpora-

tions involvedin the transactions. Under

the specific charge in the indictment, it

may only come through Leisure and Develop-

ment Properties, Inc., in which she

inferentially held some interest.

In order to prove the appellant's

corporate dealings to be in violation of

the Ethics Act, the State had the burden

of proving that the financial gain was

for a business with which she was associa-

ted, as defined in § 2(b) [now § 36-25-l

(2) Js

""Business with which he is

associated' means any business

of which the person or a

member of his family, is an

officer, owner, partner,

employee or holder of more

than 10% of the fair market

value of such business." |

TEmphasis supplied.)

No proof was made that the appellant

was an officer or employee of Leisure.

It being a corporation, she could not

have been a partner within the legal

definition of that term. Ownership in a

corporation is denoted by holding or

owning stock therein. Therefore, for the

appellant's actions to be in violation of

the terms of the statute, the State must

have proved that she owned or was the

"holder" of "more than 10% of the fair

market value of such business." This the

State failed to do, and the appellant's

motion to exclude the State's evidence

should have been granted.

An additional ground for error appears

in the record.

The State introduced into evidence

the fact that the appellant gave Dyar a

check for $5,000 on NBC which returned

due to insufficient funds. The State

likewise introduced the second check

written by the appellant on NBC in the

amount of $10,000 payable to LICA. Over

objection by the appellant, the court

admitted those checks into evidence. Over

the appellant's objection that the checks

had no material connection with the trans-

action for which she was indicted, the

prosecution argued, "I want to show, Your

Honor, that at the time these checks were

written, it (sic) wasn't enough money in

the National Bank of Commerce to cover

these amounts."

The defense then further objected:

"MR. JORDAN: ... Your Honor, we

submit and we firmly object, he's

presenting evidence of a separate

and distinct criminal offense

under the laws of the State of

Alabama involving a bad check

with insufficient funds, it cannot

be brought into this proceeding.

It's grounds for a mistrial, and

we move for a mistrial. He

intentionally did that.

"THE COURT: Motion denied.

Motive? Is that what you're

saying? ~

"MR. EVANS: Yes, Sir. She

had to get money out of Geneva

to cover these checks.

"THE COURT: All right. Over-

rule your objection, and deny

your mistrial. Proceed."

Again, the prosecution's representa-~

tion to the trial judge was not factual.

The evidence clearly reveals that the

checks in question were written on July

15, 1977. The $5,000 check was paid by

NBC on July 25, 1977. The $10,000 check

was never presented for payment. It

bears no stamp denoting that it was re-

fused due to insufficient funds. Cv#

the appellant's objection as to relevancy,

the trial court admitted the two checks

into evidence to show motive. That is,

the proseuction convinced the trial judge

that the American Bank loan was moti-

vated by the necessity to cover the July

15 checks written against insufficient

funds. The record simply does not support

such a finding.

The $50,000 loan application or note

signed by the appellant was not dated

until August 10, and the letter of credit

issued thereon was not dated until

September 6, 1977. Thus, the $5,000 check

payable to cash had been honored and paid

on July 25, some sixteen days before the

loan application with the American Bank

was dated.

There is no showing in the record

that the appellant or any business with

which she was associated had outstanding

debts or checks pending against an in-

sufficient account at NBC at the time

the appellant sought the loan from the

American Bank of Geneva on August 10.

The indebtedness referred to earlier in

the appellant's first dealings with Merri-

field and Consolidare were in connection

with Stars Over Alabama. The evidence is

unclear as to any connection between Stars

Over Alabama and Leisure. The evidence

is nonexistent as to any connection be-

tween those corporations and SAND, Inc.

in fact, the entire evidence concerning

the formation of SAND and the proposed

purchase of Point Aquarius does not appear

to have any material connection with the

crime charged in the indictment. The

checks introduced into evidence concerning

SAND and Point Aquarius have no connection

wiht the transactions in question with the

American Bank. The only check shown by

the evidence to have been returned was

later paid on July 25, 1977, over two

weeks prior to the appellant's loan app-

lication to the American Bank of Geneva

and almost a month before the appellant

sent a state deposit to the American Bank.

The SAND checks in question show that

they were written on Account No. 403-259-0

at NBC. Although the bank officials and

bank records were subject to subpoena,

there is no proof in the record that Stars

Over Alabama or Leisure had the same

account number at NBC. In fact, there is

nothing in the record to show when the

SAND account was opened, the cause of the

overdraft, the source of funds to cover

the overdraft on July 25, whether checks

in connection with Stars Over Alabama or

Leisure were drawn on that same account,

or which parties were authorized to draw

on the account.

Although the incorporating papers for

SAND were admitted into evidence, none

appear of record for either Stars Over

Alabama or Leisure. We cannot ascertain

from the State's case in chief who the

primary stockholders of those latter two

corporations were. It is noted, however,

that during the case for the defense

transactions involving Stars Over Alabama

were brought out on cross-examination of

defense witness Clay Baker. State's

Exhibits 20, 21, and 22 show the follow-

ing individuals and corporations in-

volved in those transactions in early

April 1977 (without showing their

specific interest or ownership in Stars

Over Alabama): C. Dewey Crowder, John a

Norman Firth, Louise H. Nolen, Melba Till

Allen, Dewey Crowder Associates, Ltd.,

Hawthorne Melody Farms, Inc., and A. C.

Baker. |

With the exception of the appellant

and Louise Nolen, none of the persons

mentioned in the above transaction appear

in the record as involved in the Stars

Over Alabama-NBC loan, SAND, Inc., or the

Leisure-American Bank loan transactions.

The only connection we can find be-

tween SAND and Leisure is the fact that

Allen, Nolen, and one M.F. Dyar were

stockholders in SAND and that Allen and

Nolen endorsed the American Bank note

and Vance Dyar acted somewhat as a courier

in the transaction. SAND had an account

at the same bank (NBC) where appellant

was earlier trying to negotiate a loan

for Stars Over Alabama, but there is no

evidence that Leisure had an account

there. It is clear that the appellant

was involved with a number of individuals

in several corporate transactions, but in

order to introduce collateral business

transactions into evidence they must be

relevant to the instant charge.

Evidence is admissible to show a

collateral fact only if that collateral

fact tends to prove or disprove a matter

of fact which ahs been made an issue in

a case, Jones on Evidence, (5th ed.),

§ 154. The test for relevancy employed

in Alabama is that a fact is relevant if

there is any logical relationship between

that fact and the ultimate inference for

which it is offered. Gamble, McElroy's

Alabama Evidence, (3d ed.) § 21.01(1).

Therefore, the test here would be whether

the SAND transactions have any logical

relationship with the inference for which

such transactions were offered; that is,

that the American Bank loan was motivated

by a need to cover insufficient checks

written in connection with SAND. The

State's own evidence shows such motive

did not exist and, therefore, the SAND

transactions were irrelevant to the

charge specified against the appellant in

the indictment.

Aside from the general test for

relevancy, appellant contends the evidence

of issuing a worthless check was evidence

of a collateral crime not charged in the

indictment and thus inadmissible.

It is a well established rule in this

and other jurisdictions that evidence of

other or collateral crimes is not

admissible as substantive evidence to

establish the guilt of an accused. There

are, however, well established exceptions

to that rule. Wharton's Criminal Evi-

dence, § 31, lists them as follows:

"These exceptions fall under

the following general divisions:

(1) Relevancy as part of res

gestae. (2) Relevancy to prove

identity. of person or of crime.

(3) Relevancy to prove scienter,

or guilty knowledge. (4) Rele-

vancy to prove intent. (5) Rele-

vancy to show motive. (6) Rele-

vancy to prove malice. (8)

Relevancy to rebut special defenses.

(9) Relevancy in various particu-

lar crimes..."

As can be seen, relevancy is the basis

for each exception to the general rule

enunciated above. That the appellant

wrote a worthless check in the SAND trans-

actions has no relevancy: as part of the

res restae of the crime charged; to prove

her identity; to prove scienter in obtain-

ing the American Bank loan; to show her

motive for obtaining that loan, as pre-

viously discussed; to show a system of

of obtaining bank loans by use of state

deposits, as no such deposits were in-

volved in the SAND dealings; to prove her

malice in the crime charged; to rebut

special defenses; or to "various parti-

cular crimes" in which the instant charge

is not included.

The Alabama Supreme Court gave a com-

prehensive discussion of the rule against

use of evidence of prior collateral crimes

or misconduct in Hinton v. State, 280 Ala.

48, 189 So. 2d 849 (1966) and in Mason v.

State, 259 Ala. 438, 66 So. 2d 557 (1953).

Through the cases on this point of law,

relevancy is the key factor in determin-

ing whether collateral misconduct of a

defendant is admissible in evidence.

Evidence which tends to show the

commission of a collateral crime or

wrongful act not charged in the indict-

ment is inadmissible in order "to pre-

vent conviction based on a jury belief

that the accused is a person of bad

character. The jury's determination of

guilt or innocence should be based on

evidence relevant to the crime charged."

United States v. Turquitt, 557 F.2d 464,

at 468 (5th Cir. 1977).

In Johnson v. State, 38 Ala. App. 82,

76 So. 2d 351 (1954), it was held to be

reversible error on a charge of obtaining

property by false pretense to admit into

appellant had given the same bank in

question a false financial statement pre-

vious to the transaction for which he was

being tried.

In McMickens v. State, 16 Ala. App.

78, 75 So. 626 (1917), in a prosecution

for larceny of scrap brass, which the

defendant sold to a scrap yard, it was

held to be error to show other sales of

wire and brass by the defendant to the

same dealer at various times during the

year. Likewise, in Gibson v. State,

14 Ala. App. 111, 72 So. 210 (1916), in

a prosecution for sale of illegal liquor,

it was held to be error to allow a witness

to testify to having seen large quan-

tities of whiskey stored in the back room

of the defendant's store some time prior -

to the sale in question. Since the

charge was for selling, the evidence of

illegal possession, another similar crime,

was held to be irrelevant. The Court

there stated:

"... It is the established

rule that when irrelevant or

improper testimony is admitted

on a criminal trial,against

the objection of the defendant,

it will work a reversal unless

it affirmatively appear that

the effect was to the benefit

of, or not injurious to,

the defendant...."

In a much earlier case, the use of

evidence of irrelevant but suspicious acts

met with the same result. In a prosecu- |

tionfor receving stolen cotton, the Ala-

bama Supreme Court held it to be error to

allow testimony that, during the week

previous to discovery of the stolen

cotton in the defendant's storehouse,

persons were seen going into that store-

house just before and about daybreak "with

sacks of cotton, anc coming out with the

sacks empty. Gassenheimer v. State,

52 Ala. 313 (1975). There the court

stated, in pertinent part:

",.. The evidence doubtless

alarmed the suspicions of the

jury, and inclined them the