Boswell v. State

• Court: Alabama Supreme Court
• Writing for the Court: FAULKNER; HEFLIN; HEFLIN
• Citation: Boswell v. State, 276 So.2d 592, 290 Ala. 349 (Ala. 1973)
• Decision Date: 29 March 1973
• Parties: Thomas Anderson BOSWELL v. STATE of Alabama. SC 272.

Page 592

276 So.2d 592

290 Ala. 349

Thomas Anderson BOSWELL v. STATE of Alabama.

SC 272.

Supreme Court of Alabama.

March 29, 1973.

Rehearing Denied May 10, 1973.

David L. Barnett, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Thomas W. Sorrells, Asst. Atty. Gen., for the State.

FAULKNER, Justice.

Thomas A. Boswell appeals from a judgment of conviction for selling marijuana, in violation of Title 22, § 258(47), Code of Alabama 1940, Recompiled 1958, and sentence of six years in the penitentiary imposed thereon.

The testimony at trial tended to show that Jerry Owensby, an undercover criminal investigator with the U.S. Customs Department, had been working to combat the sale of unlawful drugs in the area of Mobile, Alabama. He testified to having informed the defendant that he wished to buy a pound of marijuana. The defendant, an acquaintance, told Owensby to meet him in twenty minutes. When they met, a conversation ensued:

'Q. What was the essence of that conversation?

'A. The essence of it was that Tommy asked me how much I expected to pay for the pound (of marijuana) and I replied $80.00. He then stated if I would like to buy more than one pound. I stated what would the difference in price be. Tommy then stated that one pound would be $80, five pounds would be $75 per pound, and ten pounds would be $70 per pound.

'A. I told Tommy that I could purchase three pounds and Tommy stated to me that he would sell it to me for $75 a pound for a total of $225.00 for the three pounds. Tommy then asked me why was an old man like myself purchasing marijuana. He stated usually when old people buy marijuana, they're trying to put people in jail and I just stated that I had some friends in the northern part of Alabama that wanted some marijuana.'

Later, the parties met again in the Flaming Hearth Lounge to consummate the deal:

'Q. When he came into the Flaming Hearth, what did you observe him do?

'A. He entered through the rear door and as he walked by me he elbowed me in the back because I hadn't actually seen him and recognized him. I turned to my left as he walked by and I recognized Tommy and I followed him into the men's room which is located to the south of the front entrance.

'Q. Did you have a conversation with him at that time?

'A. Tommy stated to me that he had already placed the marijuana in the truck and had locked the door. I then gave him the $225.00. He counted it, verified it * * *.'

Witness Whatley, hiding in nearby weeds, testified to having observed the defendant placing the marijuana in the back of Owensby's camper.

The defendant himself admitted on the stand to having sold the marijuana to Owensby, but claimed to have turned all of the money over to his supplier, except for $35.00 which he kept as a 'commission.' Defendant stated in open court:

'I never denied that the transaction was made.'

Despite the absence of factual dispute as to the unlawful sale, defendant appealed to the Alabama Court of Criminal Appeals, urging that procedural errors below entitled him to a reversal. On February 28, 1973, the cause was transferred to this court by authority of Title 13, § 111(11a) of our Code.

Appellant's counsel, in his brief, assigns two grounds of error: (1) that the statute defendant was convicted of violating is unconstitutional because it contains more than one subject; and (2) that the statute arbitrarily and unconstitutionally classifies marijuana with 'hard' narcotic drugs. Appellant himself, in a 57-page pro se brief, assigns, insofar as we can interpret his turgid and lachrymose prose, at least 21 additional grounds: (3) that he was improperly extradited from Federal prison in Texas to stand trial in Alabama; (4) that he lacked counsel to fight his extradition; (5) that the indictment was vague, and failed to advise him of the nature and cause of the accusation against him; (6) that the indictment was fatally defective in that it lacked the date on which the alleged offense took place; (7) that the indictment was fatally defective in that it omitted the place at which the alleged offense took place; (8) that he never received a copy of the indictment; (9) that he was placed in double jeopardy, because charges at a preliminary hearing were dropped when the judge was advised that the grand jury was indicting defendant for the same offense; (10) that the jury panel composition was improper, lacking young adults; (11) that he was prejudiced by being taken in front of the jury panel handcuffed, chained, barefoot, dirty, unshaven, and disheveled; (12) that the court failed to rule on a motion for his mental examination; (13) that he was given insufficient time to prepare his case; (14) that the performance of his first counsel, Mr. Haas, was so incompetent as to entitle him to reversal; (15) that the performance of his trial counsel, Mr. Alonzo, was so incompetent as to entitle him to reversal; (16) that his appellate counsel, Mr. Barnett, did not communicate with him, and was so incompetent as to deny him due process of law and entitle him to a reversal; (17) that his prosecution was due to a vendetta against him by the district attorney; (18) that certain Negro jurors were Black Muslims, and were railroading him to jail just to punish a 'blue-eyed devil' in accordance with the tenets of their faith; (19) that reversible error was made to appear in that two jurors slept soundly throughout the trial; (20) that the whole jury was prejudiced against him; (21) that he was entrapped into committing the offense; (22) that he was denied a transcript to prepare an appeal; and (23) that his transfer back into the Federal penetentiary in Texas after his Alabama trial served to void his state sentence as a matter of law.

The pro se brief sums up:

'Appellant has shown the sordid story of this case in grim relief. Luckless Tom Boswell, a country boy, just back from Alaska, set upon and victimized by the lawless criminal strike force prosecution team paid by tax money extorted from Alabama's citizens--from widows and the working man alike!'

Appellant's initial argument is that the Alabama Uniform Controlled Substances Act, Title 22, § 258(25) et seq. of our Code, under which he was convicted, is unconstitutional. The Act is divided into five parts: Definitions; Standards and Schedules; Regulation of Manufacture, Distribution and Dispensing of Controlled Substances; Offenses and Penalties; and Enforcement and Administrative Provisions. See 'The Uniform Alabama Controlled Substances Act: An Appraisal,' 24 Ala.L.Rev. 491 (1972). Appellant contends that covering so many subjects in one statute is violative of the 'single subject' clause of our Alabama Constitution, Article 4, § 45:

'* * * Each law shall contain but one subject, which shall be clearly expressed in its title * * *.'

He invokes the case of State v. Welkner, 259 La. 815, 253 So.2d 192 (1971), in which the Louisiana Supreme Court quashed a prosecution for possession of pills under a Narcotics Drug Law provision regulating hard drugs and marijuana. In that case the Louisiana Legislature had amended the body of a law without changing the title to reflect the new contents. This precedent is clearly inapplicable to the Alabama law, which regulates 'controlled substances,' a term broadly inclusive of all drugs listed therein.

The purposes of this constitutional provision that every law contain but one subject, clearly expressed in its title, have been much commented upon in our case law. They are generally stated to be notification to the public of the nature of pending legislation, avoidance of fraud on the legislature by inadvertent passage of provisions not related to the title thereof, and prevention of hodgepodge, conglomerate, or 'logrolling' legislation. State ex rel. Bozeman v. Hester, 260 Ala. 566, 72 So.2d 61 (1954); State ex rel. Bassett v. Nelson, 210 Ala. 663, 98 So. 715 (1923).

Many years ago, in Ballentyne v. Wickersham, 75 Ala. 533 (1883), we stated the test for determining whether a law violates this constitutional provision:

'(T)he title of a bill may be very general, and need not specify every clause in the statute. Sufficient if they are all referable, and cognate to the subject expressed. And when this subject is expressed in general terms, every thing which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in, and authorized by it.' 75 Ala. at 536.

Quoting the Kansas Supreme Court with approval, we continued:

'The 'subject' to be contained in a bill under section 16, article 2 of the Constitution, which provides that 'no bill shall contain more than one subject, which shall be clearly expressed in its title,' may be as broad and comprehensive as the legislature may choose to make it. It may include innumerable minor subjects, provided all these minor subjects are capable of being so combined as to form only one grand and comprehensive subject; and if the title of the bill, containing this grand and comprehensive subject, is also comprehensive enough to include all these minor subjects as one subject, the bill and all parts thereof will be valid. " Id.

It is clear that the component subjects, marijuana possession, heroin possession, marijuana sale, heroin sale, etc., do combine into the 'grand and comprehensive' subject of regulation of controlled substances, and that the title of the Act does include all the component parts.

All the limbs of this tree belong to the tree. No alien branch is hidden in the foliage. We hold that the Alabama Uniform Controlled Substances Act satisfies the constitutional requirement of having a single subject clearly expressed in its title.

Appellant next contends that the classification of marijuana with so-called 'hard' drugs is unconstitutional. He cites People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), where a 20-year prison term for selling marijuana was...