author: SMITH, Presiding Justice,

text:
    Donna S. TOLBERT v. STATE of Mississippi.
    No. 52925.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Richard E. Stratton, III, Brookhaven, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before SMITH, P. J., and WALKER and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Donna S. Tolbert was indicted for the murder of Tim Faust. She was tried upon that charge in the Circuit Court of Copiah County, convicted, and sentenced to life imprisonment. She has appealed, assigning for reversal several grounds.

At the time of the homicide, Donna Tol-bert was employed by Faust as bookkeeper and receptionist in the operation of an insurance agency in the City of Hazlehurst. The agency office occupied the ground floor of a building fronting on a public street in the downtown business section of Hazle-hurst. The testimony, including that of Tolbert, is undisputed that there was only one way in or out of the office, and that was by way of the front door which opened upon the public sidewalk.

The office consisted, in addition to the room used for the transaction of business, of a bedroom, a bath and a kitchen. The murder weapon was identified as a butcher knife from the kitchen. The homicide occurred in the agency office at about 8:00 on a week day morning, on a clear day. At that time, there was traffic on the street and people were moving about. Witnesses occupying various points of vantage, had their attention drawn to the front (and only) door of the office by a “noise”, and by the sight of Faust who staggered out of the door covered with blood. It was later determined that Faust had suffered one stab wound in the back and six stab wounds in the chest, one of the stab wounds having pierced his aorta and having penetrated more than six inches into his chest. Faust also had sustained two “defense type” wounds in the left and right forearms. From these injuries Faust died in a very short time.

Faust was seen to emerge from the door of the office the front of the office having been under observation by one or more of several persons on the street on which the office fronted. No person other than Faust himself, and later Tolbert, was seen to emerge from the office. Tolbert's defense is based upon her statement that an unknown “black man” had come into the office and had engaged in an argument with Faust over a debt. She said, and later testified, that it had not been she, but this black man, who had stabbed Faust to death. Tolbert testified that after stabbing Faust the black man had first run toward the back of the apartment (office). She said that there was no possible exit in that direction and that the man had returned and had then left the office following Faust who had previously gone out the door. This black man was seen by no other person of the several who were observing the office entrance through which they had seen Faust emerge.

THE VERDICT OF THE JURY WAS SUPPORTED BY SUFFICIENT EVIDENCE

A number of witnesses saw Faust fall from the front door of his office onto the sidewalk. Each of them saw Tolbert afterward come to the door, return into the office and then come outside again. No one saw anyone else leave the office or flee the scene.

Despite the fact that there were several persons in a position to observe the front door of the agency office from the time Faust emerged until after Tolbert had come out for the second time, no witness observed a “black man” or anyone other than Faust and Tolbert come out of the office. Tolbert had testified that after the black man had stabbed Faust he threatened her “So I went into Mr. Faust’s office and as I went in the man ran past down the hall towards the back of the office building. I looked out and Mr. Faust had gotten to his feet and was making his way to the front door and the man then ran back past, and Mr. Faust had the door open and was going out, and the man ran out directly behind him.” (Emphasis added).

Tolbert reiterated this statement on cross-examination when she had been asked if she had meant to say “That when the alleged black man went out the front door that Mr. Faust had already gone out?” She said again “Mr. Faust was holding onto the door” and also that “He had gone out.”

Witness Hardy Brown said that his attention was drawn to the door of the office by the noise when Faust had “hit up against the door.” He said that after hearing the noise his “eyes was still on Tim Faust’s door, over in that direction.”

Brown testified that when Faust had fallen out the door “A lady come to the door and stood up there about a second or two and walked back in the office.” The witness said that after Tolbert had looked at Faust and returned to the office she afterward came out a second time “bleeding and calling for help.” He stated that it was when she had come out the second time that she began “hollering for help,” and started crying and screaming.

On cross-examination Hardy Brown testified that, after hearing the noise of Faust falling against the door as he came out of the office, in response to the question: “You just kept your eyes glued to the Faust Insurance Agency door?” answered: “Time this happened I did.”

Witness Ann Jenkins testified that she saw Mr. Faust coming out of his door and holding onto the door and that, at the time, she herself had been “right at the edge of the sidewalk going on to the street.”

Ann Jenkins was coming out of the bakery when she saw Faust fall out of the door onto the sidewalk, covered with blood. She caught a glimpse of some other person behind Faust whom she described as “a white face and whoever it was had dark hair.” She ran toward Faust from the bakery shouting, “He’s bleeding to death,” and it was then that she saw Tolbert emerge from the office. Mrs. Jenkins saw no other person leave the office or flee the scene.

Donna Goodman, also employed in a secretarial capacity by the Faust agency, had stopped at a traffic light when she observed Faust “hanging” on the outside of his office door and observed him as he fell out of the door face down on the sidewalk. Mrs. Goodman saw no other person other than Faust and Tolbert leave the office.

All of these witnesses agree that no black man or anyone else, other than Faust and Tolbert, came out of the office door.

Other witnesses who had been in the vicinity support the fact that no black man was seen to emerge from the office or flee the scene.

There was evidence that prior to the murder Faust had discovered several inconsistencies or discrepancies in his office checkbook, check stubs, and bank accounts, several check signatures which were questionable. One of Tolbert’s duties was to fill out the check stubs and checks. On Thursday, June 26, Faust had asked Debbie Robinson, also an employee of the agency, to examine the signatures on eight Faust checks (numbers 17931, 19504, 18740, 19398, 19404, 19505, 19405 and 19406). These can-celled checks were found to have been in Faust’s pocket at the time he was killed. Mrs. Robinson testified that five of the checks did not bear the genuine signature of Faust. The checks referred to were the last five of those enumerated above. These checks were as follows:

Faust had made inquiries of office personnel, including Tolbert, about the Merchants and Planters Bank and certain refunds. On Thursday, June 26, Tolbert showed Mrs. Robinson the following letter she had written to Faust.

Mr. Faust, I told you when I first started here that if we had a problem to please let’s talk it out. There is a problem, but I don’t know what it is. I have hinted that I am not above making mistakes and I do make them, and I consider a small one as serious as a large one. I do try my best to do the accounts. I know you doubt me, because it seems lately you’ll ask “Are you sure?” All the time. I know I mess up on things, but I’ve never had to check thing like this or send payments or write checks, or deal with so many different companies before. I also admit I tend to carry over old habits from working with one company for so long, but I try. I know that in the last few months there have been so many mistakes that anything wrong can really throw things off. And I am responsible. I catch all the responsibility and I guess I should. Its’ quite a burden. Sometimes I want to throw my hands up. Some days I need three heads and eight hands. I go to bed at night worried. Have I paid this, did this get renewed, did so and so get paid, is this or that late notice paid. I’ve never been under so much pressure or such a work load but I have considered it a part of the job and good experience. Since I have come back from vacation, there has been something wrong. Is it because I cancelled our car insurance? Jimmy wrote it but I figured you knew that and would do the same thing in my place. Besides in lieu of a pay raise you were going to pay this and I know you were worried about money so much lately. Which brings us to something else. You mentioned being $10.00 short. I didn’t take it. You don’t mention things to Timmy and Debbie but I did. Timmy said it came from Curley Johnson. When you said that, I wondered, do you think I took it? No. sir, I don’t need your money. If I cash a check for $10.00 or $110.00 I always take the amount I need. I have been trying to balance your checkbooks since January. That’s the only place I could start. I have tried to catch them up at home, but as you have said so much, that ain’t possible. I made headway. You think I signed a check. I never have, but if I did I’d tell you. I try to catch mistakes and unsigned checks but I don’t sign your checks. I have checked to see what checks cleared, what didn’t and if the stubs are entered correctly. I have caught mistakes where I write all the checks at one time, get in a hurry and not enter them correctly, or something but I also try to find these when statements come in. Granted they aren’t balanced, but I will work Saturday afternoon if you want. Timmy says you worry all the time about overdraft. I know that, and I would gladly give you all I have to help you. I love my work, I love this office and I care a great deal about you and this office. Please talk to me. Holler at me, tell me you think I screw up, am careless, take your money, mess up your accounts, but please let me know what I’ve done. I don’t want you suspicious of me or distrustful. I’d do all I could to take worry off you cause I know you have them. Just let me. I don’t mind being called stupid if I am, and I admit I have said yes when I should say I don’t know, or no. It’s hard to admit you mess up and sometimes we all have to be forced to do that. Talk to me, Mr. Faust. I don’t want you to start thinking I’m a detriment to you.

Donna

Mrs. Robinson testified that on Tuesday, prior to the murder on Friday, Faust had shown the eight checks to Tolbert and had told Tolbert “To get the money up.” Robinson testified that Tolbert then left the office but later returned and had given Faust a note saying “You will be reimbursed Friday morning.” Robinson recognized and identified Tolbert’s handwriting on the note and this note was placed in evidence.

The president of Merchants and Planters Bank on which the checks were drawn, testified that on Tuesday, July 8, Faust had come to his office with seven of the checks and he had attempted to assist Faust in determining the authenticity of the purported Faust signature which appeared on the checks. The president testified that he had determined at Faust’s request that these checks had been used to purchase money orders. The money order department in New Orleans was contacted to ascertain who the payee had been on the money orders. In this investigation the president was assisted by Mrs. Hutchinson, assistant cashier and head teller of the bank. The assistant cashier testified that on July 10, Faust had brought in the eighth cancelled check, 17931, for $302.00. Mrs. Hutchinson testified that she had consulted her proof tape and that on July 10 had given Faust the following information concerning the checks:

Check # 17931 In the amount of $302.00 purchased money order #034 2000 7 for $302.00; payee for money order: James C. Tolbert; payor: Donna Tolbert
Cheek #19404 In the amount of $380.00 Endorsed: Donna Tolbert, for deposit only; purchased money order #034 25526 for $380.00; payee for money order: Donna Tolbert; payor: J. C. Tolbert, Sr.
Check # 19405 In the amount of $230.00 purchased money order #034 25525 for $230.00; payee for money order: Styled Room; payor: Donna Tolbert
Check # 19504 In the amount of $288.00 Endorsed: Donna Tolbert, for deposit only; purchased money order #034 25870 for $280.00; payee: Donna Tolbert; payor: J. C. Tolbert, Sr.
Check # 18740 In the amount of $460.00 exchanged for cash on 1/28/80

Three of these money orders were traced to appellant’s bank accounts. Money orders numbers 034 25526 and 034 25870 were deposited in appellant’s account number 338 1621 at the Bank of Hazlehurst. Additionally money order number 034 2007 was deposited into the savings account of appellant at the Bank of the South.

ADMISSION OF TESTIMONY TENDING TO ESTABLISH MOTIVE IN CIRCUMSTANTIAL EVIDENCE CASE NOT ERROR

Tolbert contends that admitting this testimony was error since it consisted of a violation of the general rule that proof of a crime distinct from that alleged in the indictment should not be allowed in evidence against an accused.

However, in 29 Am.Jur.2d Evidence § 321 (1967), appears the following relevant statement:

It is not to be inferred, from the rule regarding the inadmissibility in criminal prosecutions of evidence of other crimes or offenses, that such evidence must be excluded in all cases and under all circumstances; rather, there are a number of well-recognized exceptions to and limitations upon the general rule.... Evidence of other criminal acts is usually competent and admissible to prove the accused’s identity, knowledge, intent, and motive, to show a common criminal scheme or plan, and in negation of the likelihood that the crime was committed as a result of inadvertence, accident, or mistake. Evidence is admissible for such purposes on the theory that the other crimes are so connected with the offense charged as to throw light upon it....
As a further exception to the rule of inadmissibility, when the fact of a former crime is an element in the offense charged, evidence of it is admissible. Evidence covering the commission of other offenses is likewise admissible where two or more crimes are so linked together in point of time or circumstance that one cannot be fully shown without proving the other, or where they form part of the res gestae. ... [Footnotes omitted].

The testimony of which appellant complains was admissible to show motive. Recently in Gardner v. State, 368 So.2d 245, 248 (Miss.1979), this Court held:

The general rule is that proof of a crime distinct from that charged in the indictment should not be admitted into evidence against an accused. Cummings v. State, 219 So.2d 673 (Miss.1969). There are, however, exceptions to this rule as noted in Floyd v. State, 166 Miss. 15, 148 So.2d 226 (1933), and which has been elaborated upon in Horton v. State, 288 So.2d 467 (Miss.1974), as follows:
... [T]hat proof of such other crime is admissible if it sheds light upon the motive for the commission of the crime charged in the indictment. Tanner v. State, 216 Miss. 150, 61 So.2d 781 (1953). Proof that defendant is guilty of another crime is admissible when that fact (1) tends to show that the deceased officer had a right to arrest the appellant without a warrant, or (2) tends to show that the accused knew why he was being arrested, and therefore sheds light on the motive for the commission of the crime for which accused is being tried. White v. State, 70 Miss. 253, 11 So. 632 (1892). (288 So.2d at 468)

Also, in Gray v. State, 351 So.2d 1342 (Miss.1977), this Court said:

It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See, Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970).
[351 So.2d at 1345].

Circumstantial evidence need not exclude every possible doubt but only every reasonable doubt, or reasonable hypothesis of innocence. Sauer v. State, 166 Miss. 507, 144 So. 225 (1932). See also: Thorne v. State, 348 So.2d 1011, (Miss.1977), Walton v. State, 212 Miss. 270, 54 So.2d 391 (1951).

A conviction may be had on circumstantial evidence alone. Fortenberry v. State, 216 Miss. 243, 62 So.2d 325 (1953).

In Bonnett v. State, 317 So.2d 907 (Miss.1975) and Burge v. State, 282 So.2d 223 (Miss.1973), both cited and quoted from Johnson v. State, 23 So.2d 499 (Miss.1945). In dealing with the sufficiency of circumstantial evidence, this Court said in Bonnett v. State, supra:

The only question in this case is, is the circumstantial evidence sufficient to support the verdict of the jury? In Johnson v. State, 23 So.2d 499 (Miss.1945), we said:
. .. The question must be determined by a jury in each particular case within the principles prescribed by law; within these limitations, the power of circumstances to satisfy the understanding and conscience of the jury beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence, is always the test of the sufficiency of circumstantial evidence.
It was long ago held by this Court in the case of Browning v. State, 33 Miss. 47, citing Cicely v. State, 13 Smedes & M. 202, 211, and the principle has been uniformly adhered to since that time, that the sufficiency of circumstantial evidence is peculiarly for the determination of the jury, “because it is always solemnly to be weighed and acted upon by their understandings and consciences, and is, from its very nature, the subject of inferences and conclusions in their minds,” and that “a verdict, therefore, found on circumstantial evidence, will always be permitted to stand unless it is opposed by a decided preponderance of the evidence, or is based on no evidence whatever.” (23 So.2d at 500.) (Emphasis supplied.)
See also Burge v. State, 282 So.2d 223 (Miss.1973); Bone v. State, 207 Miss. 868, 43 So.2d 571 (1949); Dickins v. State, 208 Miss. 69, 43 So.2d 366 (1949).
[317 So.2d at 909-910],

THE ALLEGED HEARSAY TESTIMONY WAS PROPERLY ADMITTED

It is contended that the trial court erred in admitting testimony regarding the conversations between Faust and Debbie Robinson and between Faust and the bank officials. When objection was first made to the admission of this testimony, the trial court sustained the objection. But when the State informed the court that the testimony was not being offered for the purpose of establishing the truth of what was said but only for the purpose of showing “an independently relevant fact.” This was, as the trial court noted, that the testimony of Debbie Robinson tended to prove that Faust, the victim of the homicide, recently had discovered the disparity between the check stubs and checks themselves and his bank accounts and had confronted Tolbert with this fact. The testimony of the bank officials also tended to show that Faust had recently discovered these discrepancies and believed they represented a misappropriation of his funds. This evidence is particularly significant in the light of Tolbert’s letter to Faust and her note to him saying that “You will be reimbursed Friday.”

The above testimony was offered by the State to establish motive. In a case where circumstantial evidence is relied upon, it is especially proper that motive be shown. Such evidence is relevant as rendering more probable the inference that the defendant committed the homicide. See Ladner v. State, 197 So.2d 257 (Miss.1967). In admitting the evidence for the restricted and limited purpose for which it was offered, the trial court relied upon and quoted several authorities to support his action:

McCormick on Evidence, 2nd Ed., West Publishing Co. 1972 defines hearsay evidence as follows: “Hearsay evidence is testimony in court, or written evidence, of the statement made out of court; the statement being offered as an assertion to show the truth of the matters asserted and thus resting for its value on the credibility of the out-of-court asserter.” (Emphasis added).
“Where the fact that a particular statement was made is of itself a relevant fact, regardless of the truth or falsity of such statement, the statement is admissible in evidence as an independently relevant fact.” Handshoe v. Daly, [211 Miss. 189, 193, 51 So.2d 230, 232 (1951)]. See 31A C.J.S. Evidence Sec. 239 (1964).... Also Lawler v. Skelton, [241 Miss. 274, 130 So.2d 565 (1961) ].
Franklin v. State, [189 Miss. 142, 196 So. 787 (1940)], a phone conversation of officer with informant was not inadmissible as hearsay. Hampton v. State, [99 Miss. 176, 54 So. 722 (1911) ], evidence of an out of court conversation was competent to show the information on which a witness acted, and not for the purpose of establishing a material fact. Also U.S. v. Williamson, 450 F.2d 585 [ (5th Cir. 1971), Cert. Denied, 405 U.S. 1026, 92 S.Ct. 1297, 31 L.Ed.2d 486 (1972)] and McGowan v. State, [375 So.2d 987 (Miss.1979) ].
31A C.J.S. [Evidence] Sec. 239 [1964] ‘Where the fact that a particular statement was made is of itself a relevant fact, regardless of the truth or falsity of such statement, the statement is admissible in evidence as an independently relevant fact.’

We have given careful consideration to the record of the proceedings in this case and have found that there was ample evidence to support the jury’s finding that Tolbert was guilty of the murder of Faust. While there are some contradictions in the evidence and some statements by Tolbert directed toward an innocent interpretation of certain of the circumstances in evidence, the jury was not required to accept these interpretations in the light of the overall evidence. The trial court did not err in declining to direct a verdict of not guilty.

We find no reversible error in the trial of this case and the conviction and sentence appealed from will be affirmed.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    David E. WORLEY v. DISCIPLINARY BOARD OF THE ALABAMA STATE BAR.
    80-329.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Gary L. Rigney, Huntsville, for appellant.
    William H. Morrow, Jr., Gen. Counsel, Alabama State Bar, Montgomery, for appel-lee.
   JONES, Justice.

This is an appeal from an order entered by the Disciplinary Board of the Alabama State Bar disbarring Appellant David E. Worley, a practicing lawyer. Among the charges filed by the Huntsville-Madison County Bar Association — the basis of the disbarment order — is the charge of violating Disciplinary Rule 1-102(A)(4), which rule states:

“A lawyer shall not:
“(4) Engage in conduct involving dishonesty. ...”

The scope of review to which this Court must adhere in these cases was settled in Hunt v. Disciplinary Board of the Alabama State Bar, 381 So.2d 52 (Ala.1980):

“Under the present rules of disciplinary enforcement, where the members the Disciplinary Board hear the evidence and observe the demeanor of the witnesses, the Supreme Court, on review, will presume that the Board’s decision on the facts is correct; and the disciplinary order will be affirmed unless the decision on the facts is unsupported by clear and convincing evidence, or the order misapplies the law to the facts.”

Hunt at 54.

Applying this standard, then, we must determine whether the evidence of record (which includes both written and oral testimony) and the reasonable inferences to be drawn therefrom, clearly and convincingly support the Disciplinary Board’s findings of fact, the ultimate determination of Appellant’s guilt, and the sentence of disbarment. We hold that it does; and we affirm.

Specifically, Appellant was charged with the false witnessing of signatures on an instrument purporting to convey shares of stock in B.B.R. Motor Sales, Inc., a small used car dealership owned jointly by Ned Bedsole, his son Maurice, and Robert Reynolds. Ned Bedsole, who, according to the terms of the instrument, had conveyed his stock in the company to Robert Reynolds, filed a complaint with the Huntsville-Madison County Bar Association claiming that he had never signed the stock transfer in question and alleging misconduct on the part of the Appellant.

At the hearing before the Disciplinary Board of the State Bar, the four-member panel heard the oral testimony of a variety of witnesses, including Ralph Hornsby, the lawyer retained by Ned Bedsole to investigate the matter of the alleged fraudulent stock transfer; Aubrey Lammons, the corporate lawyer for B.B.R. Motor Sales, Inc.; Maurice Bedsole; Jimmy Shelton, a former business associate of Ned Bedsole and the party from whom Robert Reynolds originally purchased his portion of B.B.R. Motor Sales, Inc. stock; Susan Dixon Perry, the former secretary of Appellant, who was present in Appellant’s office at the time of the alleged stock transfer’s execution; and Appellant David Worley himself. The panel members had before them, in written form, the questioned stock transfer certificate, the deposition of handwriting expert Andrew Miller, the deposition of Robert Reynolds, who was unavailable for the hearing before the State Board, the deposition of Susan Dixon Perry, and the depositions of Ned Bedsole, who had died prior to the State Disciplinary Board’s hearing (all of which depositions were taken in preparation for the hearing before the Huntsville-Madison County Bar Association hearing), and a page from Appellant’s office telephone message book.

We can not say, under these circumstances whereby “... the members of the Disciplinary Board hearfd] the evidence and observe[d] the demeanor of the witnesses. . . ,” that the evidence received by the Board was insufficient to support a finding of Appellant’s guilt or the sentence of disbarment. Indeed, the allegation of the fraudulent witnessing of the stock transfer clearly states a violation of Disciplinary Rule 1 — 102(A)(4) and is amply sustained by the record before us under the Hunt standard of review.

We are compelled, then, to hold that the Disciplinary Board’s findings were supported by and based upon clear and convincing evidence and that the order of disbarment was the result of a proper application of the law to those findings and was not excessive.

In light of our holding that the gravamen of the charge as discussed herein correctly warranted the disbarment of Appellant, we need not address Appellant’s additional averments of error.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    STATE of Alabama, ex rel. Attorney General of Alabama, Charles A. GRADDICK v. Ronnie RAMPEY.
    80-698.
    Supreme Court of Alabama.
    Dec. 11, 1981.

      Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., Roy S. Moore, Deputy Dist. Atty., for appellant.
    Rowan S. Bone and Edward Cunningham, Gadsden, for appellee.
   EMBRY, Justice.

This appeal is from a judgment dismissing a petition for quo warranto of the State of Alabama, on relation of the Attorney General, pursuant to Code 1975, § 6-6-591, seeking an order declaring vacant the office of Mayor of Glencoe, Alabama, and, further, enjoining respondent, Ronnie Rampey, from continuing to exercise the powers of that office.

Rampey, the present mayor of Glencoe, was indicted by an Etowah County grand jury on charges of second degree theft and use of his official position for personal financial gain in violation of Code 1975', § 36-25-5(a), a section of the Code of Ethics for Public Officials and Employees, and others. The State, required to elect between the two counts of the indictment, chose to proceed on the Ethics Code violation, for which Rampey was tried, convicted, and fined $5,000. Under Code 1975, § 36-25-27(a), a violation of the Code of Ethics is punishable by a fine not to exceed $10,000 or imprisonment not to exceed 10 years, or both.

Following the conviction, the Glencoe City Council requested Mayor Rampey to resign. He refused, whereupon the State filed the petition for quo warranto pursuant to Code 1975, § 6-6-591. The petition alleged that, as a result of his conviction, Rampey was usurping, intruding into and unlawfully holding the office of mayor under Const. 1901, Art. IV, § 60 and Code 1975, § 36-2-1. Section 60 of the Constitution provides:

No person convicted of embezzlement of the public money, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state.

In pertinent parts, Code 1975, § 36-2-1, reads:

(a) The following persons shall be ineligible to and disqualified from holding office under the authority of this state:
(1) Those who are not qualified electors, except as otherwise expressly provided;
(3) Those who shall have been convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery or any other crime punishable by imprisonment in the state or federal penitentiary and those who are idiots or insane; [Emphasis added.]

Rampey’s motion to dismiss the petition was granted and the trial court issued an order, the pertinent parts of which read:

This cause coming on to be heard on the oral and written arguments of both parties on motion to dismiss heretofore filed by the Defendant, the Court has carefully considered the briefs and arguments of both parties and after due deliberation holds that in accordance with the definitions, as contained in the law dictionaries and the law that the violation of the State Ethics Law is not per se an infamous crime. The Court further finds that the State Ethics Law is a hybrid creature providing a maximum fine and sentence, but not a minimum. The Alabama Criminal Code states a felony as “an offense for which a sentence to a term of imprisonment in excess of one [year] is authorized by this Title.” The Ethics law is not contained in the Criminal Code, but is a separate Section and Title of the Alabama Code. Therefore, this definition is not controlling in this ease and the Court must look elsewhere for an answer.
Ordinarily and historically, a felony is one of which a sentence has been imposed of more than 1 year. The jury brought in a verdict of guilty and the Court imposed a fine of $5,000.00, but no jail or prison term was imposed, therefore, the Court holds the conviction of the Defendant as a misdemeanor.
The Court, therefore, grants the Defendant’s motion to dismiss these proceedings.

It is apparent that final judgment was grounded on the conclusion that a violation of § 36-25-5(a) does not constitute commission of an infamous crime. The trial court’s references to felony definitions relate to the State’s arguments below that all felonies are infamous crimes.

No mention is made in the judgment of the State’s alternative theory of disqualification under § 36-2-1. Similarly, Ram-pey’s brief here devotes only one sentence to the issue, dismissing § 36-2 — 1 as inapplicable because Rampey was eligible to hold office at the time of his election. Obviously, § 36-2-1 warranted closer scrutiny.

One convicted of a crime “punishable by imprisonment in the state or federal penitentiary” is “ineligible to and disqualified from holding office” under subsection (a)(3) of § 36-2-1. It is Rampey’s view that this provision pertains only to the qualifications of a candidate for public office or of an incumbent duly elected but who has not yet assumed office.

Rampey argues there are only three possible mechanisms by which an officeholder can be removed: (1) impeachment under §§ 173 and 175 of the Alabama Constitution; (2) sentence to imprisonment under Code 1975, § 36-9-2; and (3) ineligibility or incapacity under the provisions of § 60 of the Alabama Constitution.

He does not refute that quo warranto is a proper remedy for preventing one who fails to meet the qualifications of § 60 to assume office; but rather he contends, the qualifications of one to hold an office, duly elected and qualified at the time he assumed that office, may only be tested by that section of the Constitution.

However, initially it was made clear in Finkles v. Farish, 160 Ala. 230, 49 So. 366 (1909), that the legislature has full authority to impose qualifications for public office in addition to those required by the Constitution.

Thereafter, in State ex rel. Coe v. Harrison, 217 Ala. 80, 114 So. 905 (1927), this court held that a Dothan city councilman who was eligible to that office when elected but who failed to pay a poll tax while in office thereby vacated the office because of Code 1923, § 1761, which required every city councilman to be a qualified elector of the city in which he “shall have been elected.” In so holding, the court stated:

Appellee’s view is that the section governs eligibility to office, but not the qualification of the councilman to continue to hold office, once he is elected and inducted into office according to law. We have been unable to accept that view.

Although § 1761 was not the same provision which we presently consider, it was construed in conjunction with Code 1923, § 2575, the precursor of Code 1975, § 36 — 2— 1, to stand firmly for the proposition that an officeholder duly elected and inducted into office may become disqualified during his tenure, thereby vacating his office.

Such was the mandate of this court in State ex rel. Chambers v. Bates, 233 Ala. 251, 171 So. 370 (1936), where, in affirming the ouster of a Mobile city commissioner in a quo warranto proceeding, the court declared:

But the Legislature cannot prescribe as a cause for removal any conduct or omission while in office, except such as is authorized by section 173 for impeachment, but may provide for removal by quo warranto, for something which renders him incapable of holding the office or ineligible to it. If the candidate or officeholder violates the Corrupt Practice Act in a way which makes him ineligible or disqualified, by its terms, he thus becomes a usurper or intruder, or unlawful holder of the office, and may be removed by quo warranto. [Citation omitted and emphasis added.]

Similarly, interpreting the progenitor provision of Code 1975, § 36-9-2, in State ex rel. Moore v. Blake, 225 Ala. 124, 142 So. 418 (1933), this court pronounced:

. . . We do not question the power of the Legislature to declare a public officer convicted by due process of law and sentenced to imprisonment ineligible to further hold the office, and to declare the office vacant unless and until the judgment of conviction is reversed and the sentence to imprisonment vacated. [Emphasis added.]

Although none of these decisions were primary interpretations of Code 1975, § 36-2-1, we think it abundantly clear from the language of those cases that a duly elected public official may vacate his office by statutory disqualification. This position is consistent with the generally accepted view that eligibility to public office is of a continuing nature and must exist at the commencement of the term and during the occupancy of the office. The fact that the candidate may have been qualified at the time of his election is not sufficient to entitle him to hold the office, if during the continuance of his or her incumbency, he or she ceases to be qualified. 63 Am.Jur.2d Public Officers and Employees § 42 (1972); Annot. 88 A.L.R. § 12 (1934).

Furthermore, we think the natural import of the language of § 36-2-1 is harmonious with this generally accepted view and with the cases discussed above. Accordingly, we hold that one may become “ineligible to or disqualified from holding office under the authority of this state”, by virtue of § 36-2-1, during the term of office, even though duly elected and qualified at the time of assuming office.

The remaining issue is whether Rampey’s conviction for violation of § 36-25-5(a), constitutes conviction of a “crime punishable by imprisonment in the state or federal penitentiary” within the terms of subsection (a)(3) of § 36-2-1. The legislature’s use of the term “punishable” directs our inquiry to the maximum punishment which Rampey could have received upon his conviction for violation of § 36-25-5(a), rather than the actual punishment meted out to him.

As mentioned, although Rampey was only fined, in the amount of $5000, any person found guilty of violating the Code of Ethics for Public Officials, Employees, and others, is subject to a possible punishment of a $10,000 fine and 10 years imprisonment under the provisions of § 36-25-27(a). Additionally, any sentence of imprisonment for more than three years must be served in the penitentiary. Code 1975, § 15 — 18-1. Consequently, Rampey’s conviction for violation of § 36-25-5(a) was a crime punishable by imprisonment in the state penitentiary within the meaning of § 36-2-l(a)(3), and operated to disqualify him from office under that code provision.

Having determined, from our examination of § 36-2-l(a)(3), that the trial court erred in granting Rampey’s motion to dismiss the petition for quo warranto, we do not find it necessary to consider whether a violation of § 36-25-5(a) is an infamous crime within the meaning of § 60 of the Constitution.

Also, we need not address the State’s contention that Rampey was disqualified from office under subsection (a)(1) of § 36-2-1, as a person who is not a qualified elector, after he was disqualified as an elector under § 17-3-3, because of his conviction. However, we are compelled to note that § 17-3-3 was repealed by the legislature in 1978, long before these proceedings were initiated and appellate briefs written.

The judgment of the trial court granting the motion to dismiss is reversed and this cause is remanded for further proceedings consistent with this opinion. Taking judicial notice of the fact that Rampey’s conviction, which serves as the basis of this action, is presently on appeal before the Court of Criminal Appeals, we suggest the trial court take that fact into consideration in determining when to go forward with further proceedings in this case.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.