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Fitch v. State8/31/2001
ad as a whole is that the legislature passed the act to prevent public officials from using their offices to reap private gains." Rampey v. State, 415 So. 2d 1184, 1186 (Ala.Crim.App. 1982). Thus, the origin of obtained funds is inconsequential to a conviction under § 36-25-5(a), Ala. Code 1975. Proof that personal financial gain was realized from "public funds" is not an element of § 36-25-5(a), nor is it descriptive of the fact or degree of the offense, nor is it material to jurisdiction.
"Unnecessary allegations may be disregarded as surplusage." Smith v. State, 551 So. 2d 1161, 1167 (Ala.Crim.App. 1989).
"`"The rule in our State is that an allegation in an indictment which is but mere surplusage may be disregarded -- it is immaterial for any purpose. The exception to this rule ... is that if the allegation (constituting surplusage) `is descriptive of the fact or degree of the crime, or is material to the jurisdiction' it must be proved as alleged. See McGehee v. State, 52 Ala. 224 [(1875)]." Brown v. State, 30 Ala.App. 339, 343, 7 So. 2d 24 (1941) (emphasis in original).'" Hunt v. State, 659 So. 2d 933, 950 (Ala.Crim.App. 1994)(quoting McCall v. State, 501 So. 2d 496, 507 (Ala.Crim.App. 1986)).
Proof that the origin of Fitch's gain was "public funds" was not an element of the charged offenses. Because the origin of the funds underlying Fitch's alleged direct personal gain is immaterial, the trial court did not err in refusing the requested jury instructions.
V-B.
Fitch argues that the trial court committed reversible error by refusing to give Fitch's requested charges, no. 17, no. 18, and no. 19, concerning the ethics opinion authored by Hugh Raymond Evans III, assistant director and general counsel for the Alabama Ethics Commission. Fitch requested the following charges.
"Defendant's Requested Jury Charge No. 17
"I instruct you that a public official may enter into a contract for public work to be done by a family member; provided, the contract is bid and the family member is the lowest responsible bidder.
"Alabama Ethics Commission, Advisory Opinion No. 97-97." C.R. 187.
"Defendant's Requested Jury Charge No. 18
"I instruct you that if a family member of a public official is the only bidder after a contract has been sufficiently publicized, the public official may enter into the contract; provided, other bidders were not discouraged from submitting a bid, nor were bids let with the preconceived arrangement that the family member would be the successful bidder.
"Alabama Ethics Commission, Advisory Opinion No. 97-97." C.R. 188.
"Defendant's Requested Jury Charge No. 19
"I instruct you that a public official is not guilty of using his office for personal gain when he enters into a contract with a family member if: 1) the contract is bid; 2) the contract has been sufficiently publicized; 3) other bidders were not discouraged from submitting a bid; 4) the bids were not let with the preconceived arrangement that the family member would be the successful bidder and 5) the family member is the lowest responsible bidder;
"Alabama Ethics Commission, Advisory Opinion No. 97-97." C.R. 189.
Fitch argues that these instructions were warranted because the State injected this issue into the trial when it called Evans for a legal opinion as to an ultimate issue in the case. According to Fitch, these instructions were accurate statements of the law, were based on evidence adduced at trial, and went to the heart of the prosecution's case and the defense's theory.
As discussed in art V of this opinion, Advis
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