State v. Ballard

• Decision Date: 31 August 1976
• Docket Number: 1 Div. 703
• Citation: 341 So.2d 957
• Parties: STATE of Alabama v. Karen Kay BALLARD.
• Court: Alabama Court of Criminal Appeals

Page 957

341 So.2d 957

STATE of Alabama v. Karen Kay BALLARD.

1 Div. 703.

Court of Criminal Appeals of Alabama.

Aug. 31, 1976.

Rehearing Denied Oct. 5, 1976.

William J. Baxley, Atty. Gen., Mary Lee Stapp, J. Michael Crouch, Asst. Attys. Gen., for the State.

Grey Redditt, Jr. and Benjamin H. Kilborn, Mobile, for appellee.

HARRIS, Judge.

Mrs. Ballard was indicted for the offense of child abuse pursuant to the provisions of Title 14, Section 41(1), Code of Alabama.

Omitting the formal parts the indictment reads as follows:

'The GRAND JURY of said County charge, that, before the finding of this indictment KAREN KAY BALLARD whose name is to the Grand Jury otherwise unknown than as stated, and who is over the age of eighteen years, did willfully and unlawfully hit, beat, strike, or inflict unjustifiable physical pain or mental suffering on Jennifer Ballard, a child under the age of sixteen years in a manner which was not ordinary and reasonable discipline and punishment, against the peace and dignity of the State of Alabama.'

The defendant filed a demurrer to the indictment alleging:

1. The indictment is defective in that it is so vague and indefinite that it fails to apprise the Defendant of the offense with which she is charged.

2. The statute under which this indictment is drawn us unconstitutionally vague in defining the offense with which the Defendant is charged.

3. The act under which the indictment was returned is unconstitutional in that the act itself is broader than the title under which the act is drawn, in contravention of the Constitution of Alabama, Art. 4, Section 45.

4. The statute under which this indictment is drawn is unconstitutionally overbroad in that its terms are equally applicable to willful offenders and to persons who accidentally or unintentionally inflict injury to a child.

5. The indictment is defective in that it is so vague and indefinite as to the offense with which the Defendant is charged, that she is unable to properly and adequately prepare a defense to the charges.

6. The indictment violates the Defendant's due rights under U.S. Constitution, Amendment V.

7. The indictment denies the Defendant her right to due process under U.S. Constitution, Amendment XIV.

8. The indictment violates the Constitution of Alabama, Art. 1, Section 6 by failing to inform the Defendant of the nature and casue of the accusation against her.

9. The indictment is defective in that it does not set out with definiteness the constituent elements of the offense, in violation of the Constitution of Alabama, Art. 1, Section 6.

10. The indictment is defective in that the statute under which it was returned violates Constitution of Alabama, Art. 1, Section 6.

11. The alleged offense does not constitute a crime under the laws of Alabama.

12. The statute is unconstitutionally vague and denies the Defendant equal protection in that 'unjustifiable pain' is subject to varying opinions and viewpoints of enforcers of the rule, and does not furnish a meaningful standard of action.

13. The Defendant has been placed in former jeopardy.

The law in question is Act No. 2422, General Acts of Alabama 1971, approved October 1, 1971. The entire act reads as follows:

'AN ACT

'To provide for the conviction of persons over 18 years of age who wilfully cause pain or injury to a child under 16 years of age and to provide the punishment for such crime.

'Be It Enacted by the Legislature of Alabama:

'Section 1. Any person over 18 years of age who hits, beats, strikes, cuts, stabs, burns, scalds, or inflicts unjustifiable physical pain or mental suffering on any child under the age of 16 years in a manner which is not ordinary and reasonable discipline and punishment shall, on conviction, be punished by imprisonment in the penitentiary for not less than one year nor more than ten years.

'Section 2. This Act shall become effective upon its passage and approval by the Governor or upon its otherwise becoming a law.

'Approved October 1, 1971.'

The trial court rendered the following decree:

'ORDER, DEMURRER TO INDICTMENT SUSTAINED--DEFENDANT DISCHARGED.

"State of Alabama )Child Abuse.

)

Hodnette vs. 35229 )Demurrer to Indictment--

)Sustained--Defendant

)discharged--

)

Karen Kay Ballard )Attorney in court.

(WF DB 4/22/54) )

'This day in open court came the State of Alabama by its District Attorney and the defendant's Demurrer filed on the 18th day of February, 1976, to the Indictment in this case and having heretofore on the 17th day of March, 1976, been argued by counsel and submitted to the court, together with all of the other papers in this case, and said Demurrer being understood by the Court;

'This cause on coming to be heard is submitted for ruling on the Demurrer of the Defendant challenging the constitutionality of Act No. 2422, 1971 Acts of Alabama, and codified in Tit. 14, Sec. 4(41)(1) Code of Alabama (Recompiled 1958); and the Court having heard the argument of counsel and having carefully considered the same and the briefs submitted on behalf of the State and the defendant and the Court being of the opinion that said Act is unconstitutional;

'It is therefore ORDERED, ADJUDGED AND DECREED by the Court that Act No. 2422, 1971 Acts of Alabama, codified in Tit. 14, Sec. 41(1) Code of Alabama (Recompiled 1958) be and the same is hereby declared unconstitutional as violative of Article 4, Sec. 45, Constitution of Alabama in that the scope of the body of said act exceeds the scope of the title of the act; Article 1, Sec. 6, Constitution of Alabama, in that the definition of said crime is vague and ambiguous and does not apprise the defendant of the nature and cause of the accusation against her; and further for these same latter reasons is violative of the United States Constitution, Amendment 5.

'It is therefore further ORDERED, ADJUDGED and DECREED by the Court that the defendant, Karen K. Ballard, be and is hereby discharged.'

Since Act No. 2422 was declared to be unconstitutional the State of Alabama appealed the decision of the trial court.

We start with the statement that a statute will, if possible, be so construed as to render it valid. Alabama Digest, Constitutional Law, k48.

It is also the law that an overbroad enactment cannot enlarge a narrower title. White v. State, 49 Ala.App. 5, 267 So.2d 802. Stated another way, the test is: Is there anything in the bill that cannot by fair construction be referred to the title?

A careful reading of Act No. 2422, supra, demonstrates that nowhere does the element of scienter or wilfulness appear in the body of the act. The title of this act is narrow and restrictive, carefully setting out the precise elements required to constitute the commission of a crime. The body of the act fails to do this. This is a body of the and must be strictly construed and may not be extended by construction. Dumas v. State, 17 Ala.App. 492, 86 So. 162.

In Locklear v. State, 50 Ala.App. 679, 282 So.2d 116, this Court held:

'Criminal statutes cannot be extended to cases not included within the clear and obvious import of their language. Young v. State, 58 Ala. 358(1).

'No person is to be made subject to penal statutes by implication, and all doubts concerning their interpretation are to predominate in favor of accused. Fuller v. State, 257 Ala. 502, 60 So.2d 202(5).

'Penal statutes are not to be extended by construction, but must be limited to cases clearly within the language used. Greek-American Produce Co. v. Illinois Central R.R. Co., 4 Ala.App. 377, 58 So. 994(9).'

The problems arising from broad statutes with restrictive titles have confronted the Alabama Court on a number of occasions. In Brown v. National Motor Fleets, Inc., 276 Ala. 493, 164 So.2d 489 (1964), the Court dealt with a statute imposing a tax on motor trucks operating 'for hire.' There the Court found that where the body of the Act used the term 'for hire' in a broader sense than the ordinary commercial meaning, and the title did not indicate this broader usage, the Act was unconstitutional under Section 45. In so holding, the Court stated that:

'The title alone should be considered and a determination made as to object or objects, it expresses; and the body of the Act, regardless of definition, Cannot enlarge the meaning. . . . 'The body determines the scope of the operation of the act, but is Limited by the maximum scope as expressed in the title . . .' Mason, 'The Drafting of Statute Titles', 10 Ind.Law Journal 155, 160.' Brown at 494, 164 So.2d at 490 (Emphasis added).

In striking down a portion of Alabama's stop and frisk statute, which allowed for search after a frisk revealed no weapons, and the title referred to only a 'search for weapons,' the Court of Criminal Appeals in White v. State, 49 Ala.App. 5, 267 So.2d 802 (1972), held that an overbroad enactment cannot enlarge a narrow title, and to the extent it purports to do so is void.

Most recently this question was presented in Bagby Elevator Company v. McBridge, 292 Ala. 191, 291 So.2d 306 (1974). There the Court held that where the title indicated the Act dealt with the time within which actions must be brought (the traditional statute of limitations), while the body contained a provision extinguishing the cause of action, that portion of the statute was void under Section 45 in that the latter provision encompassed matters not indicated by the title.

Similar holdings permeate Alabama constitutional law. In Fuqua v. City of Mobile, 219 Ala. 1, 121 So. 696 (1928), the Court held that where the title of an Act is narrow and restrictive, and where the subject matter of the Act goes beyond the title, the Act violates Section 45. Likewise the Court stated in Opinion of Justices, 247 Ala. 195, 23 So.2d 505 (1945), that if an Act is broader than the title . . . that part of the Act that is not indicated by the title is unconstitutional. See also 73 Am.Jur.2d, Statutes, Section 113.

In order to bring the title and body of this Act into...