Allen v. State

• Decision Date: 18 December 1979
• Docket Number: 3 Div. 949
• Citation: 382 So.2d 11
• Parties: Melba Till ALLEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 11

382 So.2d 11

Melba Till ALLEN v. STATE.

3 Div. 949.

Court of Criminal Appeals of Alabama.

Dec. 18, 1979.

Rehearing Denied Jan. 22, 1980.

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

Charles A. Graddick, Atty. Gen., James F. Hampton, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was convicted of violating the Alabama Code of Ethics for Public Officials pursuant to the provisions of Section 36-25-1, et seq., Code of 1975, as last amended, being Act No. 130, Regular Session, 1975. She was sentenced to one year in the penitentiary which sentence was to run concurrently with the three year sentence imposed upon her in a previous conviction under another specific provision of the Ethics Statute. That conviction was affirmed by this court on November 20, 1979.

Omitting the formal parts, the indictment reads as follows:

"The Grand Jury of said County charge that, before the finding of this indictment Melba Till Allen, whose name is to the Grand Jury otherwise unknown, on or about to-wit: the 2nd day of May, 1977 in a statement of economic interests required to be filed by the said Melba Till Allen with the Alabama State Ethics Commission on a form provided by the said State Ethics Commission, pursuant to the provisions of Act 130, Regular Session of the Legislature of Alabama, 1975, did feloniously fail to list her indebtedness to banks operating or doing business in the State of Alabama in that, to-wit: the said Melba Till Allen did swear or affirm that as of December 31, 1976 she was indebted to nine (9) such banks for amounts less than Twenty-Five Thousand and no/100 ($25,000.00) Dollars and that she was indebted to one (1) such bank in an amount exceeding Twenty-Five Thousand and no/100 ($25,000.00) Dollars but less than Fifty Thousand and no/100 ($50,000.00) Dollars, and that she was indebted to one (1) such bank in an amount exceeding Fifty Thousand and no/100 ($50,000.00) Dollars but less than One Hundred Thousand and no/100 ($100,000.00) Dollars and that she was indebted to one (1) such bank in an amount of One Hundred Thousand and no/100 ($100,000.00) Dollars or more, when, as of December 31, 1976, the said Melba Till Allen was indebted to such banks in amounts as follows, to-wit:

                                                    OUTSTANDING
                                                    INDEBTEDNESS
                                                   AS OF DECEMBER
                  BANK                                31,1976
                Alabama City Bank of Gadsden          $ 10,000.00
                Alabama National Bank of
                  Montgomery                            47,963.00
                Auburn Bank and Trust Company            7,329.63
                Bank of Huntsville                       5,180.41
                Bank of the Southeast                   50,000.00
                Brent Banking Company                   10,060.25
                Cahaba Bank and Trust Company
                  Inc.                                   8,682.01
                Central Bank of Birmingham              11,904.48
                Central Bank of Montgomery              15,000.00
                Central Bank of Uniontown               70,000.00
                Cherokee County Bank                     7,814.00
                Citibanc of Alabama/Fultondale          15,000.00
                First National Bank of Greenville        2,412.09
                The Citizens Bank, Oneonta              59,000.00
                The Citizens Bank, Prattville           25,208.96
                The City National Bank                  15,810.00
                First Bank of Macon County              20,043.83
                First Alabama Bank of Gadsden
                  N.A.                                   4,763.68
                The First National Bank of
                  Autauga County                        13,530.59
                The First National Bank of
                  Florence                               5,500.00
                The First State Bank of Altoona         10,098.05
                The First State Bank of Lamar
                  County                                 9,389.39
                The Fort Deposit Bank                   40,115.75
                The Greenville Bank                      2,843.45
                Luverne Bank and Trust Company           3,866.00
                MetroBank                               30,000.00
                Merchants National Bank                 19,000.00
                National Bank of Commerce of
                  Birmingham                            15,237.32
                The Peoples Bank of Carrville            9,285.30
                Peoples Bank of Tuscaloosa               6,000.00
                Pike County Bank                        11,764.95
                Shelby State Bank                        8,758.42
                Southern National Bank                   5,783.63
                Southern Bank, N.A.                    500,000.00
                Union Bank & Trust Co.                  51,104.54
                Wilcox County Bank                     100,650.00
                

against the peace and dignity of the State of Alabama."

The evidence presented by the State showed that appellant did not correctly complete the "Statement of Economic Interests" on the form furnished her by the State Ethics Commission. This form included a Statement of Indebtedness to Banks, Credit Unions and Savings and Loan Associations, Insurance Companies, Mortgage Firms, Stock Brokers, Other Businesses (credit card indebtednesses), and Individuals. Appellant signed the form on April 29, 1977, and it was received by the Commission on May 2, 1977. The form expressly required a report of debts owed to all businesses operating in Alabama on December 31 (1976) including debts of the spouse and dependent children.

The statement of indebtedness is required pursuant to the provisions of Section 36-25-14, Code of 1975. This section further provides, in part, "In the event that said information required herein is not filed as required, the Commission shall notify the public official or employee concerned as to his failure to so file and the public official shall have 10 days to file said report after receipt of said notification.

"(b) After the original filing of the above prescribed statement(s), each person shall make additional subsequent filing within 90 days after the termination of each succeeding reporting year . . ."

It was stipulated that appellant was the State Treasurer at the time she filed the financial statement for the year ending on December 31, 1976. The financial statement filed by Mrs. Allen revealed that she was indebted to a total of 12 Alabama banks.

The State then proceeded to call witnesses to prove the allegations of the indictment to show that Mrs. Allen was individually or jointly indebted to 36 banks instead of 12 banks as she reported on her disclosure statement. The first witness was Mary McDaniel who testified that she was employed by the Alabama City Bank of Gadsden, Alabama, and was custodian of the records of that bank. She stated that appellant and her husband executed an unsecured note to the bank in the year 1976 in the amount of $10,000.00. This note was given and accepted by the bank as security on a note made to the bank by D. E. Locklear and wife, Bette Locklear, who had defaulted on the payment of the note. The note executed by Mrs. Allen and her husband was outstanding on December 31, 1976. Appellant failed to disclose this indebtedness to the State Ethics Commission. Ms. McDaniel further testified that, on the date of appellant's trial, there was an outstanding balance due on this note in the amount of $8,890.00. The note was introduced into evidence.

Mr. Hugh Webb testified that he was the Drive-In Manager and Custodian of the records of the Cherokee County Bank, Centre, Alabama. He stated that appellant was personally liable on a note to the bank on October 14, 1976, in the amount of $7,814.00. The note was unsecured and at the time of appellant's trial the note was not due and the balance was still $7,814.00. The loan records were introduced into evidence.

Mr. Donald G. Henderson stated that he was the Custodian of the records at the City Bank of Alabama, Fultondale, Alabama. He said that Mrs. Allen executed an unsecured note to the bank in the amount of $15,000.00 and this indebtedness was outstanding on December 31, 1976. The note was introduced into evidence.

Mrs. Jo Karen Parr testified that she was an attorney with an outstanding law firm in Montgomery and a Certified Public Accountant licensed to practice accounting by the State Board of Public Accountants in the State of Alabama. Also she is a part time Deputy District Attorney for Montgomery County and has been serving in that position since May 1, 1978. It was the duty of Mrs. Parr to examine all the notes and bank records of the various banks to which appellant was indebted during the year 1976 and had failed to list on the disclosure statement filed with the Ethics Commission. A great number of these notes and records had been subpoenaed at the instance of the Montgomery Grand Jury. Her testimony on direct examination covered some 40 pages in the transcript. We will summarize her testimony for the sake of brevity.

Mrs. Parr stated that she found four notes signed by Mrs. Allen to the Alabama National Bank of Montgomery which were outstanding on December 31, 1976. These notes and bank records were identified by State's exhibit numbers and introduced into evidence but we see no useful purpose in mentioning the exhibit numbers. There was one note in the amount of $5,000.00 and one in the amount of $6,500.00, both of which were unsecured. There was one note in the amount of $35,000.00 executed by Randy E. Allen, Marvin E. Allen, and Melba Till Allen. This note was secured by 508 shares of stock in the Keith Williams Corporation, a contracting firm owned by the Allen family. There was another note in the amount of $2,556.00 signed by Mrs. Allen alone and it was unsecured.

There was an unsecured note, signed by Melba Till Allen, to the Auburn Bank and Trust Company, Auburn, Alabama, in the amount of $7,329.63. This was a renewal note dated June 15, 1976.

There was an unsecured note in the amount of $5,475.51, signed by Melba Till Allen, to the Bank of Huntsville, Huntsville, Alabama. This note was outstanding on December 31, 1976.

Mrs. Parr viewed the bank records of the Bank of the Southeast in Birmingham, Alabama, and ascertained that Mrs. Allen was indebted to that bank in the...