Stewart v. State

• Decision Date: 21 September 1990
• Docket Number: 1 Div. 34
• Citation: 580 So.2d 27
• Parties: Johnny STEWART v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 27

580 So.2d 27

Johnny STEWART v. STATE.

1 Div. 34.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

Rehearing Denied Dec. 28, 1990.

Certiorari Quashed May 17, 1991

Alabama Supreme Court 1900552.

Johnny Stewart, pro se.

Don Siegelman, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Johnny Stewart, was convicted, after a jury trial, for trafficking in cocaine, in violation § 20-2-80(2), Code of Alabama 1975, and was sentenced to 15 years' imprisonment, fined $25,000, and ordered to pay $250 restitution. Because of our disposition of this case, we deem it unnecessary to recite the facts.

Appellant contends that the indictment, under which he was tried and convicted, does not aver all the elements of the crime of trafficking in cocaine and, for that reason, does not charge a crime that would have conferred jurisdiction upon the trial court. The indictment reads, in pertinent part, as follows:

"The Grand Jury of said County charge that before finding this indictment on to-wit: Johnny Stewart whose name is otherwise unknown to the Grand Jury other than as stated, did possess, sell or deliver in excess of 28 grams of a controlled substance, to-wit: Cocaine in violation of the Alabama Uniform Controlled Substances Act, a violation of § 20-2-80 of the Code of Alabama...."

Appellant contends that § 20-2-80(2) ¹ makes knowledge an element of the offense by requiring that a defendant "knowingly" sell, manufacture, deliver, or bring into this state, or "knowingly" be in actual or constructive possession of 28 grams or more of cocaine or of any mixture containing cocaine, and that the instant indictment fails to allege this element. He argues that the failure to allege this essential element renders the indictment void and unable to support a judgment of conviction.

The state argues, in brief, that appellant's issue is not preserved, because he did not object to the indictment during trial on the ground now urged on appeal and, also, the motion he did file was untimely. An appellant usually waives irregularities in an indictment by appearing and pleading in the trial court, because his plea to the merits is held an admission that the indictment is valid. Canada v. State, 421 So.2d 140, 145 (Ala.Cr.App.1982). However, "[t]he only exception to this is when an indictment fails to include an essential element of the offense which leaves the accused unaware of the nature and cause of the charge against him." Id., at 145. "This Court is bound to take notice of defects in an indictment which render it void, even in the absence of an objection." Felder v. State, 512 So.2d 817, 818 (Ala.Cr.App.1987); Barbee v. State, 417 So.2d 611, 612 (Ala.Cr.App.1982). See also A.R.Cr.P.Temp. 16.2(a) and (d) (which provide that the failure of the charge to state an offense may be raised at any time).

We find that this case fits the exception to the preservation rule that is urged by the state, for we find that the omission of the allegation of knowledge in the instant indictment is the type of defect that renders the indictment void. Alabama courts have expressly recognized that knowledge is an essential element to the conviction for an offense involving possession of a controlled substance. See, e.g., Walker v. State, 356 So.2d 672 (Ala.1977) (possession); Donahoo v. State, 505 So.2d 1067, 1070 (Ala.Cr.App.1986) (trafficking). Because it is an essential element, knowledge should have been alleged in the indictment. See 28 C.J.S. Drugs and Narcotics Supplement § 184(a) (1974) (wherein it is recognized, "[w]here knowledge on the part of accused of the nature of the contraband possessed is necessary to sustain a conviction of an offense of possession of narcotics the indictment must allege such knowledge"). Compare Thompson v. State, 454 So.2d 1053, 1055-56 (Ala.Cr.App.1984) (where the court ruled that an indictment charging unlawful possession of marijuana, pursuant to § 2-2-70 which does not expressly include "knowledge" as an element, is not void for failing to charge that the defendant knowingly possessed marijuana). See also 28 C.J.S. supra, at § 184 (wherein it is noted that "it is not necessary that scienter be alleged in an indictment charging a narcotics offense unless by statute it is made an element of the offense that the prohibited act be knowingly or willfully done").

We also find guidance for our holding in Davis v. State, 68 Ala. 58 (1880), wherein the court reviewed the validity of an indictment charging the statutory offense of transporting or moving seed cotton at night. The statute prescribed that anyone "who knowingly violates any of the provisions" of the act shall be guilty. In addressing the validity of the indictment on its failure to aver that the appellant did the act charged "knowingly," the court stated the following:

"We are of opinion ... that the indictment is defective.... It fails to charge that the defendant 'knowingly' committed the act for which he is criminally indicted. The statute is highly penal in its character, and creates a new crime unknown to the common law. Section 5 makes knowledge of the facts essential to the crime, deeming him alone guilty 'who knowingly violates any of the provisions' of the act. The general rule of pleading is, that every indictment, information or other criminal proceeding, ought to contain all that is material to constitute the crime, or every necessary ingredient of the offense, stated with precision, or at least certainty and in the customary forms of law.--3 Greenl.Ev. § 10; Beasley v. State, 18 Ala. 535. A crime is committed only by a combination of act and intent. 'No amount of intent alone is sufficient, neither is any amount of act alone; the two must combine.'--1 Bish.Cr.Law, § 430 (6th ed.). In the particular crime here charged, there are forcible reasons for the application of this rule requiring the indictment to state the guilty scienter. The transportation of the prohibited commodity may have been done ignorantly. The defendant may honestly have believed that he was without the prohibited jurisdiction."

Id. at 65. See also Barbee v. State (cited with approval in City of Dothan v. Holloway, 501 So.2d 1136, 1165, n. 6 (Ala.1986) (opinion of Beatty, J., dissenting in part and concurring in part, with which Justices Jones, Almon, and Adams joined); Johnson v. State, 555 So.2d 215 (Ala.Cr.App.1988), aff'd in part, rev'd in part, on other ground, 555 So.2d 216 (Ala.1989).

The state contends that the element of knowledge can be read into the indictment because the indictment cites the statute, alleging that appellant acted "in violation of the Alabama Uniform Controlled Substances Act, a violation of § 20-2-80 of the Code of Alabama,...." In Barbee v. State, 417 So.2d at 613-14, this court rejected similar reasoning and reiterated the rule for construing an indictment, stating, as follows:

"The fact that the indictment refers to its statutory source cannot save it from being fatally deficient. The rule is that 'the indictment must contain all the essentials to constitute the offense, explicitly charged, and that they must not be left to inference.' State v. Seay, 3 Stew. 123, 131 (1830). The indictment cannot be aided by intendment, Poore v. State, 17 Ala.App. 143, 82 So. 627 (1919), and 'nothing is to be left to implication or intendment, or to conclusion.' Mastoras v. State, 28 Ala.App. 123, 126, 180 So. 113, cert. denied, 235 Ala. 519, 180 So. 115 (1938). A court is 'without authority to add to, or take from, any of the material averments in the indictment, which speaks for itself and is conclusive.' Crump v. State, 30 Ala.App. 241, 242, 4 So.2d 188 (1941).

"A reference to a statutory source in an indictment is a 'matter of convenience and not of substance.' Pate v. State, 45 Ala.App. 164, 166, 227 So.2d 583 (1969). 'The statement that the facts violate a certain section of the statute is nothing more than the pleader's conclusion, which may or may not be correct, and neither adds nor detracts from the allegation.' Harper v. United States, 27 F.2d 77, 79 (5th Cir.1928); Allen v. State, 33 Ala.App. 70, 73, 30 So.2d 479 (1947). Reference to the statute is treated as surplusage. Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162 (1974).

"Upon these authorities we conclude that a reference...