Allen v. State

Citation380 So.2d 313
Decision Date20 November 1979
Docket Number3 Div. 936
PartiesMelba Till ALLEN v. STATE.
CourtAlabama Court of Criminal Appeals

Richard D. Horne and James E. Atchison, of Hess, Atchison & Stout, Mobile, for appellant.

Charles A. Graddick, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

Melba Till Allen was indicted by the grand jury of Montgomery County on a two-count indictment charging her with violation 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 unconstitutionality 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 three 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 prosecution 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 chartered 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 institution, 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. . . ."

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 Treasurer 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, Alabama. According to Merrifield, he owned an interest in "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 Downtowner Motel in Montgomery, Alabama. The meeting occurred in the lobby and, at that 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 needing 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 "Consolidare." He testified that the conversation 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 placing State funds in said bank." Merrifield stated that Vance Dyar asked the appellant if "she saw any problems." According to Merrifield, the appellant responded 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 Downtowner 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." Merrifiedld 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 appellant who 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 testified 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 Enterprises 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 thousand-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 associated banks and we needed fifty thousand here to make her checks good up there that were outstanding." Further, Merrifield 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 corporate pilot...

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  • Arthur v. State, 8 Div. 873
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    • April 10, 1984
    ...not admissible as substantive evidence to prove the accused's guilt of the particular offense for which he is on trial. Allen v. State, 380 So.2d 313 (Ala.Cr.App.1979), cert. denied, 380 So.2d 341 (Ala.1980), cert. denied, 449 U.S. 842, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980); Wilkens v. State,......
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    ...of the accused's commission of other crimes is admissible to show criminal intent, and plan, design, scheme or system. Allen v. State, 380 So.2d 313 (Ala.Cr.App.1979), cert. denied, 380 So.2d 341 (Ala.1980); Pope, " 'If the accused is charged with a crime that requires a prerequisite intent......
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