Alabama Advisory Opinions August 10, 1979: AGO 79-00268 (August 10, 1979)

Advisory Opinion Text

Lee L. Hale, Deputy Attorney General.

Walter S. Turner, Chief Assistance Attorney General.

William M. Bekurs, Jr. Executive Assistance.

Janie Nobles, Administrative Assistance.

Mrs. Jenny C. Knight

Member

Morgan County Board of Registrars

P. O. Box 668

Decatur, Alabama 35602

Registrars-Elections-Voter Registration

Discussion of which crimes will disqualify an Alabama citizen from voting.

Dear Mrs. Knight:

This is in answer to your request for an opinion from this office of June 8, 1979, which reads as follows:

"I would like to request an opinion from your office concerning the dis-enfranchisement of voters for the conviction of certain offenses. I am especially interested in those crimes involving moral turpitude.

"The disqualifying offenses are listed in Article 8, Section 182 of the 1901 Constitution. I feel certain that some of these offenses may no longer be disqualifying due to recent federal or state court judgments. I am in hopes that your office might provide me with some form of an updated list.

"It has always been difficult and confusing to determine those crimes involving moral turpitude which might keep someone from voting. I would especially appreciate any help or some form of a list of these crimes.

"One question in particular deals with issuing worthless checks. Would those persons convicted in district court of issuing worthless checks be disqualified from voting?"

As you note in your opinion, Article 8, Section 182 (Constitution of Alabama 1901) lists the offenses which will disqualify a person from voting. That section reads:

"The following persons shall be disqualified both from registering, and from voting, namely:

"All idiots and insane persons; those who shall by reason of conviction of crime be disqualified' from voting at the time of the ratification of this Constitution; those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false. 'pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude; also, any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of buying or offering to buy the vote of another, or of making or offering to make a false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector."

Several of the offenses listed have specifically been deleted from the list of disqualifying offenses by case law. These include assault and battery on the wife; Hobson v. Pow , 434 F.Supp. 362 (N.D. Ala. 1977); vagrancy; Bryan v. State , 18 Ala.App. 199, 89 So. 894 and miscegenation; Doving v. Virginia , 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); United States v. Brittian , 319 F.Supp. 1058 (N.D. Ala. 1970).

In addition to the crimes specifically listed, the statute provides that the disqualifying crimes include all crimes punishable by imprisonment in the penitentiary and all crimes involving moral turpitude. We then reach the complicated question of which crimes are crimes involving moral turpitude. This question cannot be dis-positively answered, inasmuch as the determination of what constitutes a "crime involving moral turpitude" has been addressed by the Alabama courts on a case by case basis, and often in a context other than the eligibility to vote.

There are a number of definitions of the term. In Irvin v. State , 44 Ala.App. 101 (1967), the Alabama Court of Criminal Appeals cited a definition given by Mr. Justice Traynor in In Re Hallinan , 43 Cal.2d 243, 272 P.2d 768, which reads:

"Although the problem of defining moral turpitude is not without difficulty, * * it is settled that whatever else it may mean, it includes fraud and that a crime in which an intent to defraud is an essential element is a crime involving moral turpitude. * * * It is also settled that the related group of offenses involving intentional dishonesty for purposes of personal gain are crimes involving moral turpitude. * * * The fraudulent acquisition of another's property is but another form of theft in this state. * * *"

Moral turpitude also has been defined as: "anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes his fellow man, or to society in general, contrary to the accepted and customary." The term also implies something immoral in itself, regardless of whether it is punishable by law. Nelson y. State , 35 Ala.App. 179, 44 So.2d 802 (1950). It is also the doing of the act itself, and not its prohibition by statute, that fixes the moral turpitude. Pippin v. State , 197 Ala. 613, 73 So. 340 (1916); Gillman v. State , 165 Ala. 135, 51 So. 722 (1910). The offense must be malum in se and not malum prohibitum. Sims v. Callahan , 269 Ala. 216, 112 So.2d 776 (1959).

As I have indicated, any list that is compiled of crimes involving moral turpitude is not necessarily exhaustive. However, I have attempted to collect the existing cases on this subject and to present a list of crimes that have been held to involve moral turpitude and a list of crimes that do not involve moral turpitude.

The following is a list of crimes involving moral turpitude in Alabama:

Murder - Vaughn v. State , 235 Ala. 80, 177 So. 553.

Buying and concealing stolen property Orr v. State , 225 Ala. 642, 144 So. 867.

Burglary - Wynne v. State , 155 Ala. 99, 46 So. 459; Martin v. State , 18 Ala.App. 303, 92 So. 37.

Forgery - Moton v. State , 13 Ala.App. 43. 69 So. 235 (1915).

Malicious shooting - Smith v. State , 40 Ala App. 393 , 114 So.2d 295 (1959).

Assault with intent to murder - Mathews v. State , 51 Ala.App. 417, 286 So.2d 91 (1973); Harris v. State , 343 So.2d 567 (Ala.Crim.App.1977).

Larceny - (includes grand and petite) - Mathews v. State , infra.

Desertion from military duty during time of war - Nelson v. State , 35 Ala.App. 179, 44 So.2d 802 (1950).

Sale of marijuana - Gholston v. State , 338 So.2d 454 (Ala.Crim.App.1978).

Manslaughter in the First Degree - Johnson v. State , 357 So.2d 162 (Ala.Crim.App.1978).

Income tax evasion - Meriwether v. Crown Investment Corp. , 289 Ala. 504, 268 So.2d 780 (1972). This offense is also grounds for disciplinary action against attorney as involving moral turpitude. Annot., 63 A.L.R.3d 465 (1975).

Violating Dyer Act (transporting stolen cars across state lines) - Mathews v. State , infra.

Obtaining money by worthless check - Irvin v. State , 44 Ala.App. 101, 203 So.2d 283 (1967).

Carnal knowledge - Powell v. State , 297 So.2d 163, 53 Ala.App. 30 (1974).

The following are crimes which have been held not to involve moral turpitude:

Assault and battery - Gillman v. State , 165 Ala. 135 51 So. 722: Collins v. State , 3 Ala. App. 64, 58 So. 80; Johnson v. State , 15 Ala.App. 298. 73 So. 210; Craven v. State , 22 Ala.App. 39, 111 So. 767; Bedsole v. State , 274 Ala. 603, 150 So.2d 696 (1963).

Bootlegging - Wiggins v. State , 27 Ala.App. 451, 173 So. 890.

Distilling, or otherwise violating prohibition laws - Lakey v. State , 206 Ala. 180, 89 So. 605: Ex parte Marshall , 207 Ala. 566, 93 So. 471; Baugh v. State , 215 Ala. 619, 112 So. 159.

Doing business without license – Craven v. State , 22 Ala.App. 39, 111 So. 767.

Trespass to land - U. S. Lbr. & Cotton Co. v. Cole , 202 Ala. 688; 81 So. 664.

Vagrancy - Bryan v. State , 18 Ala.App. 199, 89 So. 894.

Using Abusive & Obscene Language - Craven v. State , 22 Ala.App. 39, 111 So. 767.

Public Drunkenness - Crammer v. State , 196 So. 268; Craven v. State , supra.

Driving while Intoxicated - Diamond v. State , 49 Ala.App. 68, 268 So.2d 850

Violations of liquor laws - Whitman v. State, 41 Ala.App. 124, 124 So.2d 275 (1960); Parker v. State , 280 Ala. 685, 198 So.2d 261 (1967).

Aiding prisoner to escape - McGovern v. State, 44 Ala.App. 197, 205 So.2d 247 (1967).

Speeding - Dean v. Johnston , 281 Ala. 602, 206 So.2d 610 (1968).

Of course, I am sure you are aware that a restoration of civil and political rights granted by the Alabama Board of Pardons and Parole will restore the right to vote to a person convicted of one of the disqualifying crimes.

I hope that I have answered your questions sufficiently.

Sincerely, CHARLES A. GRADDICK, Attorney General.

LINDA C. BRELAND, Assistant Attorney General.