Poole v. State8/31/2001
equivalent of an element of a greater offense, an element that, by definition, is material because it must be proven to a jury beyond a reasonable doubt and because it provides the jurisdictional basis for imposing the enhanced sentence, I would hold that a grand jury must first find probable cause to believe that these sentence-enhancement factors can be proven and that the factors must be alleged in the indictment. See Art. I, § 6, Ala. Const.; Amendment 37, Ala. Const., amending Art. I, § 8; Rule 13.2, Ala.R.Crim.P.; Summers v. State, 348 So. 2d 1126, 1132 (Ala. Crim. App. 1977), cert. denied, 348 So. 2d 1136 (Ala. 1977), and cert. denied, 434 U.S. 1070 (1978) ("The constitutional right of an accused to demand the nature and cause of the accusation against him is not a technical right, but is fundamental and essential to the guaranty that no person shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense."); Nelson v. State, 50 Ala. App. 285, 278 So. 2d 734 (Ala. Crim. App. 1973); Young v. State, 348 So. 2d 544, 546 (Ala. Crim. App. 1977) ("We must be ever mindful that the right of an accused to demand the nature and cause of the accusation is one of the cornerstones of our Bill of Rights; that he fully and intelligently understands the charge against him, so that he may adequately prepare his defense, is the first requirement of due process."); Newberry v. State, 493 So. 2d 995, 996 (Ala. 1986) (" nder Article I, Section 6, the right of the accused to demand the nature and cause of the accusation is a fundamental component of the right to due process"); Kennedy v. State, 39 Ala. App. 676, 690, 107 So. 2d 913, 926 (1958) ("The constitutional requisition of indictments generally in all cases of felony is not one conferring a mere personal privilege upon an accused person, but is so imbued with the public concern for due and proper administration of the law that no individual may waive it."); 42 C.J.S. Indictments and Informations, §§ 2, 4, 71, 113 (1991); 41 Am. Jur. 2d Indictments and Informations §§ 2, 69, 152 (1968); H. Maddox, Alabama Rules of Criminal Procedure § 13, p. 453 (2d ed. 1994). I note the following from 41 Am. Jur. 2d § 2:
"At common law, and from the earliest colonial days in this country, it has been the settled rule that a formal accusation is an essential condition precedent to a valid prosecution for a criminal offense, and that no criminal proceedings can be said to be brought or instituted until a formal charge is openly made against the accused, by indictment or presentment by a grand jury...."
In Gayden v. State, 262 Ala. 468, 80 So. 2d 501 (Ala. 1955), Justice Simpson, writing for two other members of the Alabama Supreme Court, noted:
"Indictments must always conform to the mandates of our organic law. The emphasis in our cases `that in all criminal prosecutions, the accused has the right to demand the nature and cause of the accusation' now § 6 of the Constitution of 1901 -- is not meaningless tautology, but one of the cornerstones of our Bill of Rights. As was observed by the late lamented Mr. Justice Brown in Spooney v. State, 217 Ala. 219, 222-223, 115 So. 308, 312;
"`"It is but an expression of the fundamental principle that inspired civilized man to form a government, the ultimate purpose of which is to protect the individual in working out his destiny, and finds expression in our Constitution in these words: `That in all criminal prosecutions the accused has a right to be heard by himself and counsel, or either; and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law.' Constitution of Alabama 1901,
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