Reed v. State

• Citation: 372 So.2d 876
• Parties: In re Thomas REED, alias v. STATE of Alabama. Ex parte Thomas REED. 78-262.
• Decision Date: 25 May 1979
• Court: Supreme Court of Alabama

Page 876

372 So.2d 876

In re Thomas REED, alias v. STATE of Alabama.

Ex parte Thomas REED.

78-262.

Supreme Court of Alabama.

May 25, 1979.

As Corrected On Denial of Rehearing July 6, 1979.

Alberta Murphy, Stanley Jay Murphy, Tuscaloosa, for petitioner.

Charles A. Graddick, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for the State, respondent.

PER CURIAM.

We granted Defendant's Petition for Writ of Certiorari to review the opinion of the Court of Criminal Appeals upholding Defendant's conviction of a misdemeanor the offense of attempt to bribe.

Defendant, a member of the State Legislature, was charged and tried for the felony offense of bribery of a public official (a fellow member of the Legislature). The statute under which Defendant was charged, § 13-5-31, reads:

Any person who shall, directly or indirectly, offer, give or promise any money or thing of value, testimonial, privilege or personal advantage to any executive or judicial officer or member of the legislature to influence him in the performance of any of his public or official duties shall be guilty of bribery and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than two nor more than 10 years.

After two mistrials, Defendant was convicted of Attempt to bribe, a misdemeanor under § 13-9-3 (the attempt to commit a crime statute) which reads:

Upon trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt.

The jury's verdict was in response to the trial Court's instructions to the effect that conviction of a misdemeanor, as authorized by the general attempt statute, was a permissible option in the event they could not agree that the evidence warranted a finding of guilty of the charged felony. ¹ It is the propriety of this oral instruction that is challenged here.

We restate the issue: Because § 13-5-31 defines bribery a felony to include attempts to bribe, may an accused charged thereunder be convicted of a misdemeanor under § 13-9-3? We answer the question in the negative; and we reverse the conviction and render the cause.

We find our answer, at least in part, in our analysis of the case law interpreting the general misdemeanor attempt statute. The Court of Appeals in Edwards v. State, 33 Ala.App. 386, 34 So.2d 173 (1948), addressed the meaning of this statute:

". . . (This section) properly construed mean(s) where the evidence fails, under the required rule as to measure of proof, to show that the actual offense charged in the indictment has been committed as charged, then, if the evidence warrants it, the provisions of such (section) may be applied and a conviction had for a lesser offense which is necessarily included in the offense with which he is charged." 33 Ala.App. at 387, 34 So.2d at 174.

In Broadhead v. State, 24 Ala.App. 576, 139 So. 115 (1932), the Court of Appeals expounded on the application of the statute:

"An attempt to commit a crime consists of three elements: (1) The intent to commit the crime; (2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission. In other words, in order that there may be an attempt to commit a crime, whether statutory or at common law, there must be some overt act in part execution of the intent to commit the crime, but which falls short of the completed crime; the difference between attempt and commission being that the act or step fails to produce the result intended.

"A criminal attempt to commit a crime consists of two important elements: First, an intent to commit the crime; and, second, a direct ineffective act done towards its commission. It follows that a failure to consummate the crime is as much an element of an attempt to commit it as the intent and the performance of an overt act towards its commission; and, where a crime has been actually committed, the second element or ingredient of an attempt is necessarily lacking, and a prosecution or conviction for an attempt to commit a crime could not be sustained for this reason." 24 Ala.App. at 578, 139 So. at 117.

These quoted portions from Edwards and Broadhead were quoted with approval in Cochran v. State, 42 Ala.App. 144, 155 So.2d 530 (1963). By the very terms of the statute, it is the...