Associated Industries of Alabama, Inc. v. State, 3 Div. 316

• Decision Date: 08 April 1975
• Docket Number: 3 Div. 316
• Parties: ASSOCIATED INDUSTRIES OF ALABAMA, INC., et al. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 879

314 So.2d 879

55 Ala.App. 277

ASSOCIATED INDUSTRIES OF ALABAMA, INC., et al. v. STATE.

3 Div. 316.

Court of Criminal Appeals of Alabama.

April 8, 1975.

Rehearing Denied May 6, 1975.

Warren H. Goodwyn of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Montgomery, for Associated Industries of Ala., Inc., Gilbert Mobley, Ala. Trucking Ass'n. and James, I. Ritchie.

Charles A. Stakely, Jr., and Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for Ala. Farm Bureau Federation, Milton Parsons Ala. Textile Manufacturers Ass'n. and Tom Eden.

Harry Cole and William I. Hill, II, of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for Ala. State Chamber of Commerce.

Richard C. Belser and David B. Byrne, Jr., of Robison, Belser, Brewer & Phelps, Montgomery, for Ala. Forestry Ass'n. and Joe W. Graham.

William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Five domestic corporation, one domestic association, and five individuals, were indicted by a special grand jury of Montgomery County, Alabama, for violating the state's Corrupt Practices Law. Omitting the formal parts, the two-count indictment reads as follows:

'The Grand Jury of said County charge that, before the finding of this indictment, Associated Industries of Alabama, Inc., a corporation; Alabama Farm Bureau Federation, a corporation; Alabama Trucking Association Inc., a corporation; Alabama Textile Manufacturers Association, Inc., a corporation; Alabama State Chamber of Commerce, a corporation; Alabama Forestry Association, a corporation; Joe W. Graham; James I. Ritchie; Thomas Eden; Gilbert Mobley and Milton Parsons, whose names are otherwise unknown to the Grand Jury, did associate or comprise a political committee in that each of said persons or organizations was elected, appointed, chosen or associated for the purpose wholly or in part of directing the raising, collection or disbursement, or in that each of said persons or organizations cooperated in the raising, collecting or distribution, or in the controlling or directing the raising, collecting or disbursement of money used or to be used in support or in opposition to a measure or proposition submitted to popular vote, to-wit: proposed Alabama Constitutional Amendment No. 1, which was submitted to popular vote in the 1972 general election, and did fail to file within thirty days after the general election held in November of 1972, with the Secretary of State, a statement giving in itemized, detailed form, including names, items and detailed amounts, covering all of the expenditures made directly or indirectly, and all obligations, debts or liabilities assumed or incurred by the committee at the time of filing of said statement, said statement which was further to include the names of all contributors of amounts in excess of ten dollars, with amount given by each, and a list of all gifts, loans and contributions made, such statement which was further to itemize all monies, expended in sums over five dollars giving the names of various persons to whom such moneys were paid, the specific nature of each item, by whom the service was performed, and purpose for which it was expended, such statement which was further to have had an affidavit attached, subscribed and sworn to by the treasurer of said committee setting forth in substance that the statement thus made is in all respects true, and that the same is a full and detailed statement of all moneys, securities or equivalents of money coming under the control or custody of the committee and by them expended directly or indirectly, contrary to law, against the peace and dignity of the State of Alabama.

'COUNT TWO

'The Grand Jury of said County further charge that, before the finding of this indictment, Associated Industries of Alabama, Inc., a corporation; Alabama Farm Bureau Federation, corporation; Alabama Trucking Association, Inc., a corporation; Alabama Textile Manufacturers Association, Inc., a corporation; Alabama State Chamber of Commerce, a corporation, Inc., a corporation; Alabama State Chamber of Commerce, a corporation (sic); Alabama Forestry Association, a corporation; Joe W. Graham; James I. Ritchie; Thomas Eden; Gilbert Mobley and Milton Parsons, whose names are to the Grand Jury otherwise unknown, did print, publish or circulate printed matter consisting of newspaper advertisements having reference to an election, to-wit; the 1972 General Election in which proposed Alabama Constitutional Amendment No. 1 was submitted to popular vote, which newspaper advertisements did not bear on the face thereof the name and address The specific sections of the law involved are Sections 268, 279 and 282, Title 17, Code of Alabama 1940.

of the person or committee causing the same to be published, against the peace and dignity of the State of Alabama.'

Each defendant filed a demurrer, separately and severally to each count of the indictment attacking its sufficiency for failure to set forth the constitutent elements of the alleged offenses. The specific grounds of the demurrer taking the point that the indictments are fatally defective are:

1. The indictment and each count and allegation thereof fail to allege any criminal intent to violate the law on the part of the defendant.

2. The facts stated in the indictment and each count thereof fail to allege any specific intent by the defendant to engage in the unlawful conduct.

3. The indictment and each count thereof fail to allege the defendant willfully failed to file the itemized statement required by law.

4. The indictment and each count thereof do not sufficiently charge the elements of the crime attempted to be charged and it is impossible for this defendant to prepare a defense thereto.

5. It is alleged that the defendant willfully committed the acts charged.

All appellants also raised by demurrer that they were being subjected to unconstitutional discriminatory enforcement of the statutes under which they were charged with violating, all in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and the Constitution of Alabama.

The same grounds of the demurrer and other matters were raised by all defendants in motions to quash the indictment.

There were numerous other motions and pleas filed on behalf of each defendant but under the view we take of this case, it is unnecessary to treat them separately.

The trial court overruled all demurrers, motions and pleas on November 12, 1973. We hold the trial court committed reversible error in not sustaining the demurrers to the indictment. The indictment is fatally defective for failure to charge that the acts or omissions were 'willfully' done. The penalty statute for violations of the Corrupt Practices Law is Section 332, Title 17, Code of Alabama 1940, and is as follows:

'Corrupt practice in election or primary election.--Any person or persons who do any act defined or declared to be a corrupt practice under the election or primary election laws of this state, Or who wilfully fails or refuses to do any act required of such person under this chapter, relating to the corrupt practice law of this state, shall be guilty of a misdemeanor, and, on conviction, must be fined nor more than five hundred dollars, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months at the discretion of the court trying the case.' (Emphasis added)

In Padgett v. State, 36 Ala.App. 355, 56 So.2d 116, Presiding Judge Carr wrote:

'A 'willful' act may be described as one 'done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.' Lobdell Car Wheel Co. v. Subielski, Del., 2 W.W.Harr. 462, 125 A. 462, 464.

'The court held in Grebe v. State, 112 Neb. 715, 201 N.W. 143, that the word corruptly when used in a statute generally 'In the case of United States v. Edwards, C.C. (Ala.) 43 F. 67, and court held in effect that the word corruptly as used in an indictment for perjury is not synonymous with willfully, since the former means viciously, wickedly, while the latter means with design or with some degree of deliberation.

imports a wrongful design to acquire some unauthorized advantage.

See also Dixon v. State, 40 Ala.App. 465, 115 So.2d 262.

In Mitchell v. State, 248 Ala. 169, 27 So.2d 36, it was held that the general rule that an indictment which substantially follows the language of the statute is sufficient is not applicable where the statute does not prescribe with definiteness the constitutent elements of the offense. This case further held that an indictment must allege sufficient facts to show in and of themselves the criminal offense, and a statement of bald conclusions will not suffice, and laxness will not be permitted in charging the commission of crime.

In construing certain sections of the Corrupt Practices Law, the Supreme Court in McCutcheon v. Thomas, 261 Ala. 688, 75 So.2d 649, said:

'So far as we are aware there is no other penalty for the failure to do either of the aforesaid acts, (Title 17, Sections 279 and 281, Code of 1940) except as set out in § 332, Title 17, Code of 1940, which provides that one who Willfully fails or refuses to do any act required of such person relating to the corrupt practice law of the state shall be guilty of a misdemeanor.' (emphasis supplied)

The Attorney General's office has ruled on this very point. In the Biennial Report of the Attorney General, 1928--1930, Attorney General Charles C. McCall wrote:

'. . .. (T)hat where one willfully fails or refuses to do these things required to be done under said corrupt practice law, that person is guilty of a misdemeanor also and punishable as provided in Section 3937 of the Code, supra. Therefore, where a candidate for party nomination in a primary held under the election laws...