Hammond v. State

• Decision Date: 16 December 1977
• Citation: 354 So.2d 294
• Parties: In re Kenneth HAMMOND v. STATE of Alabama. Ex parte Kenneth Hammond. Div. SC 2515.
• Court: Alabama Supreme Court

Page 294

354 So.2d 294

In re Kenneth HAMMOND v. STATE of Alabama Ex parte Kenneth Hammond.

Div. SC 2515.

Supreme Court of Alabama.

Dec. 16, 1977.

Rehearing Denied Feb. 10, 1978.

John W. Kelly, III, of Jackson & Sikes, Selma, Loma B. Beaty, Patrick H. Tate, Fort Payne, for petitioner.

William J. Baxley, Atty. Gen., and James S. Ward and Edward E. Carnes, Asst. Attys. Gen., opposed, for the State.

BEATTY, Justice.

The petition for writ of certiorari to the Court of Criminal Appeals is quashed as improvidently granted.

WRIT QUASHED.

TORBERT, C. J., and BLOODWORTH, MADDOX, JONES, ALMON and SHORES, JJ., concur.

FAULKNER and EMBRY, JJ., dissent.

FAULKNER, Justice (dissenting).

By quashing the writ the majority of this court lets stand the judgment of the Court of Criminal Appeals. I would reverse and remand because, in my opinion, Hammond has been denied due process of law, under the 14th Amendment to the Constitution of the United States.

Kenneth Hammond, while serving as a Commissioner on the Alabama Public Service Commission was indicted for inciting to a felony bribery. Under Count 1 of the indictment the case went to the jury, charging Hammond in the disjunctive with inciting Rex Moore or John Moore of Tops Vending Company, or Charles Price of South Central Bell Telephone Company, to:

1. Corruptly offer, promise or give

2. To Hammond as an executive, legislative or judicial officer;

3. A gift, gratuity, or thing of value, to-wit money or proceeds from or in connection with the operation of certain vending machines in, to-wit South Central Bell Telephone Company buildings, Montgomery, Alabama, in the amount of to-wit $10,000.

4. With intent to influence Hammond's vote, opinion, decision or judgment on a cause, matter or proceeding pending before him in his official capacity as President, Public Service Commission, to-wit a telephone rate or charge increase requested by South Central Bell Telephone Company.

Hammond was convicted by a jury, and the trial court sentenced him to three years in the penitentiary. On appeal to the Court of Criminal Appeals, affirmed. We granted certiorari on the alleged ground of whether Hammond received constitutional due process of law by being convicted without substantial evidence on all elements of the crime to support the conviction. The majority did not write an opinion giving their reasons for affirmance, yet it is obvious that the Court of Criminal Appeals had grave doubts about this case. The court said:

"A complex and many-faceted count is the basis for depriving appellant of his liberty. We have been presented with a hodge-podge of facts and are told that upon one theory or another, they substantially prove every material allegation of the indictment. In order to find one theory or one alternative which would support the instant conviction, it has been necessary to fit facts together like connecting pieces of a complex jigsaw puzzle. When the task is completed, we find only one theory from which a jury could draw an inference of guilt. The evidence that appellant incited Price to bribe him, pursuant to the wording of Title 14, § 63, is far from overwhelming. Yet, we find it to be sufficient to meet the bare minimum standards to support the verdict of the jury." (Emphasis added.)

Further, the court said:

"The first two alternatives of Count 1 are not sustained by the proof. Although the jury could reasonably find that appellant incited the Moores to offer him money, there is absolutely no proof that the offer was for the purpose of influencing appellant's vote on the Bell rate request. There was not one iota of evidence that the Moores had any interest whatsoever in the rate request. The Bell rate request was never mentioned in any conversation between appellant and the Moores. If Count 1 is sustained by the proof, it must be on the third alternative concerning Charles Price."

The majority, by quashing the writ, agrees with the Court of Criminal Appeals. By doing so, they have introduced a new standard of evidence to support a conviction bare minimum standards in the field of criminal law. This is a dangerous departure from the substantial evidence rule, and the "bare minimum standards" violate Hammond's constitutional rights. In Ex Parte Grimmett, 228 Ala. 1, 152 So. 263 (1963) this court held that there must be substantial evidence to prove all the elements of the charge. The scintilla rule of evidence applicable in civil cases does not apply to criminal cases because the presumption of innocence, shielding every prisoner at bar, is not overcome by a mere scintilla of evidence.

Here, there was no evidence at all that Hammond was offered, promised, or given any gift, gratuity, or thing of value to influence his vote on a pending rate case. This court held in Clemons v. City of Birmingham, 277 Ala. 447, 171 So.2d 456 (1965) that it is a violation of due process of the 14th Amendment to the Constitution of the United States to convict and punish a person without any evidence at all of his guilt. Where is there any evidence at all of guilt here that Hammond incited Charles Price to bribe him to vote favorably on a pending rate case?

Price testified that in 1974, Hammond told him that he had friends in the vending machine business and wanted to know whether machines could be put in some of Bell's buildings. He and...