Ex parte Harper

Decision Date27 September 1991
PartiesEx parte Henry Mack HARPER. (Re Henry Mack Harper v. State). 1901019.
CourtAlabama Supreme Court

Gene Spencer, Dothan, for appellant.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

MADDOX, Justice.

We granted the petition for writ of certiorari in this case primarily to review this question: Was the indictment, which tracked the language of the statute in alleging that Henry Mack Harper "unlawfully" distributed cocaine in violation of Ala.Code 1975, § 13A-12-211, fatally defective because it did not allege that the offense was "knowingly" committed? This question was raised for the first time by the petition filed in this Court. We also review a secondary question, whether the Court of Criminal Appeals correctly determined that Harper's ineffective assistance of counsel claim was procedurally barred.


Henry Mack Harper was indicted and convicted of unlawfully distributing cocaine, in violation of Ala.Code 1975, § 13A-12-211, and was sentenced to a term of 15 years in the penitentiary. He was also ordered to pay a $1,000 fine and to pay $100 to the Crime Victims' Compensation Fund. The Court of Criminal Appeals affirmed his conviction with an unpublished memorandum opinion, Harper v. State, 579 So.2d 710 (Ala.Crim.App.1991).


We first address Harper's contention that the indictment was void because it did not contain an allegation that he had "knowingly" distributed cocaine. The indictment charged that Harper did "unlawfully sell, furnish, give away, manufacture, deliver, or distribute a controlled substance, to-wit: cocaine, in violation of [s] 13A-12-211 of the Code of Alabama." 1 (Emphasis added).

Section § 13A-12-211 reads, in part, as follows:

"(a) A person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he sells, furnishes, gives away, manufactures, delivers, or distributes a controlled substance enumerated in schedules I through V.

"(b) Unlawful distribution of controlled substances is a Class B felony."

The indictment was returned on February 17, 1989. That date is important, because, at that time, the procedure for preferring an indictment was governed by the provisions of Temporary Rule 15.2 (now Rule 13.2, Alabama Rules of Criminal Procedure), which provided, in part, that "[t]he indictment or information shall be a plain, concise statement of the facts in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment." Temporary Rule 15.2(a). This Rule also required that the indictment state "the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated." Temporary Rule 15.2(b). This indictment complied with that requirement.

In determining whether a particular charge comports with the requirements of the Rule, we set forth the general principles that we believe should govern our review of the question posed by the petitioner concerning the sufficiency of the charge in his case. According to the Comment to Temporary Rule 15.2 (now Rule 13.2), "[the] rule is designed to simplify the pleading in criminal matters, much the same as the pleading in civil actions has been simplified." We apply the principle succinctly stated in that commentary in reaching our decision in this case.

The general rule in Alabama, even before the adoption of Temporary Rule 15 (now Rule 13), was that it was sufficient to charge the elements of the statutory offense in the words of the statute, provided the statute prescribed with definiteness the constituent elements of the offense. Ex parte Allred, 393 So.2d 1030 (Ala.1980); see, also, cases collected at 12 Ala.Dig., Indictment and Information, Key No. 110(3). The crucial question, of course, is whether the indictment sufficiently apprises the accused with reasonable certainty of the nature of the accusation made against him so that he may prepare his defense, that he may be protected against a subsequent prosecution for the same offense. See Hochman v. State, 265 Ala. 1, 91 So.2d 500 (1956), in which the Court distinguished Gayden v. State, 262 Ala. 468, 80 So.2d 501 (1955), a leading case on the sufficiency of an indictment, in which a divided Court held that two counts of an indictment against Gayden were defective and subject to a demurrer. 2

The question raised in the petition, and frequently debated, is whether scienter must be alleged in an indictment charging a person with a statutory crime, such as the one charged here, especially in view of the seriousness of the offense. In Gayden, supra, Mr. Justice Simpson, writing for a sharply divided Court, commented on the requirement of scienter regarding the crimes there alleged (that the defendant had obtained narcotics by fraud, deceit, misrepresentation, or subterfuge, or by forgery or alteration of a prescription, or by concealment of a material fact, or by use of a false name, etc.). He criticized the notion that because the crimes charged were so-called "public welfare crimes" the indictment could track the words of the statute, calling that notion "a rather unusual innovation in criminal pleading," and asserting, "We have found no case nor have we been directed to one which asserts the proposition that the defendant is entitled to less (or no) constitutional protection when he is charged with a crime against the public." 262 Ala. at 471, 80 So.2d at 504.

There are at least two reasons why Gayden is inapplicable. First, this Court has liberalized criminal pleading and has provided a method for defendants to obtain a more definite statement of the charges. Temporary Rule 15.2 (now Rule 13.2).

Second, the statement in Gayden that the Court's attention had not been directed to a case in which the scienter requirement in a public welfare crime had been discussed indicates that neither the State nor the defendant in Gayden had called to the Court's attention two cases from the Supreme Court of the United States that had discussed, in some detail, that very question. In United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922), the defendants demurred to an indictment charging them with a violation of the Narcotic Act on the ground that the indictment made no mention of the intention with which the defendants had acted. The indictment there, like the indictment in this case, tracked the language of the statute. The lower court had sustained the demurrer and quashed the indictment. The Court held:

"While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it (Reg. v. Sleep, 8 Cox C.C. 472), there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70, 30 S.Ct. 663, 666-67, 54 L.Ed. 930, in which it was held that in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide 'that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.' Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. Commonwealth v. Mixer, 207 Mass. 141 ; Commonwealth v. Smith, 166 Mass. 370 ; Commonwealth v. Hallett, 103 Mass. 452; People v. Kibler, 106 N.Y. 321 ; State v. Kinkead, 57 Conn. 173 ; McCutcheon v. People, 69 Ill. 601; State v. Thompson, 74 Ia. 119 ; United States v. Leathers , 6 Sawy. 17; United States v. Thomson, 12 Fed. 245; United States v. Mayfield, 177 Fed. 765; United States v. 36 Bottles of Gin, 210 Fed. 271; Feeley v. United States, 236 Fed. 903, Voves v. United States, 249 Fed. 191. So, too, in the collection of taxes, the importance to the public of their collection leads the legislature to impose on the taxpayer the burden of finding out the facts upon which his liability to pay depends and meeting it at the peril of punishment. Regina v. Woodrow, 15 M. & W. 404; Bruhn v. Rex, [1909] A.C. 317. Again where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells. Hobbs v. Winchester Corporation, [1910] 2 K.B. 471, 483.

"The question before us, therefore, is one of the construction of the statute and of inference of the intent of Congress. The Narcotic Act has been held by this court to be a taxing act with the incidental purpose of minimizing the spread of addiction to the use of poisonous and demoralizing drugs. United States v. Doremus, 249 U.S. 86, 94, 39 S.Ct. 214, 216, 63 L.Ed. 493; United States v. Jin Fuey Moy, 241 U.S. 394, 402, 36 S.Ct. 658, 659, 60 L.Ed. 1061.

"Section 2 of the Narcotic Act, 38 Stat. 786, we give in part in the margin. It is very evident from a reading of it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to...

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