# Petition — Allen v. Alabama

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 842

## Text

‘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-

oe

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.

A.

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-

© son of life, liberty, or property,
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
Ve

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

10

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

ll

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

12

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,

13

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,

14

"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

LS

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.

16

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

17

[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,

18

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

19

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

20

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

21

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:

22

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

23

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~

24

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

25

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

ap
"is

ep

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

© mal course of banking business. Hayes re
sponded ‘yes, sir'. He was then asked:

"6.

ad

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,

26

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

27

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

28

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
© in the indictment, and strictly
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.

I
The appellant complains that she was

29

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-

30

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

34

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-

32

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

33

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

34

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:

© "The 'mockery of justice' rule
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:

© "The nature of the problem of
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]

33

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

36

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

37

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

38

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

39

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.

40

IV

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
41

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:

42

"(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

43

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.
V

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

44

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.

vi

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.

45

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

46

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

47

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."

48

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:

49

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

50

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;

51

(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. ...

52

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

53

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

54

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,

55

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

&

56

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,

}

57

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:

58

"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-

59

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

60

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

61

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-

62

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.

63

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

64

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;

65

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.

66

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,

67

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

68

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

69

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-

70

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

71

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.

72

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-

73

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

75

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

76

"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,

77

"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.

I

At the end of the State's case in
chief, the defense moved to exclude the
evidence on the ground inter alia that

78

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 ---

79

"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

80

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

81

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

82

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

83

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

84

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-

85

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

86

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.

II

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

87

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

88

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-

89

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

90

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

91

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2606%3A1. Public record. Not legal advice.