text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY v. William Clyde WARE.
    Civ. 1622.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.

      William P. Sawyer, Montgomery, for appellant.
    J. Myron Smith, Prattville, for appellee.
   BRADLEY, Judge.

Insurer, Alabama Farm Bureau Mutual Casualty Insurance Company, appeals from an adverse judgment rendered by the Circuit Court of Autauga County entitling the plaintiff-insured to recovery of a sum found to be due under the “automatic insurance” provisions of a certain automobile insurance policy, and awarding an additional sum as punitive damages for the fraudulent conduct of the insurer.

Farm Bureau’s principal contentions on appeal are that coverage under the automatic insurance provisions of the policy was terminated by the insured’s son’s application for another automobile insurance policy, and that no evidence sufficient to sustain a finding of fraud on the part of the insurer was presented to the trial court. We affirm.

This appeal arises out of the following facts. The insured, Mr. William Clyde Ware, owned several automobiles, all of which were insured by defendant insurer. One of these vehicles, a 1976 Ford Elite, was used by Mr. Ware’s twenty year old son, Al, in whose name the certificate of title was issued. The collision and liability insurance coverage for this car, as well as for all the family vehicles, had been purchased from Farm Bureau by Al’s parents.

Certain portions of the policy on Al’s car (policy no. A661914) read as follows:

Newly Acquired Automobile — means an automobile, ownership of which is acquired by the named insured if (1) it replaces an automobile owned by the named insured and covered by this policy, or the Company insures every automobile owned by the named insured on the date of its delivery, and (2) the named insured notifies the Company, applies for such insurance, and pays the premium required because of the application of the insurance to such newly acquired automobile, all within thirty days following the delivery date of such newly acquired automobile.
13. . . .
(a) The insurance with respect to a newly acquired automobile shall not apply to any liability or loss against which the insured has other collectible insurance applicable thereto in whole or in part.
in WITNESS WHEREOF, the ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC., has caused this policy to be signed by its President and Secretary, but the same shall not be binding upon the Company unless the Declarations made a part hereof, is countersigned by a duly authorized officer or representative of the Company. [Emphasis added.]

On or about August 17,1977 Al, using his and his parents’ funds, purchased a Datsun 260-Z automobile to be used as a replacement for the Ford Elite. Because Mr. Ware’s job often necessitated his absence from home, Mrs. Ware initiated efforts to have the new Datsun insured.

Mrs. Ware contacted the Farm Bureau office in Prattville on August 23, 1977 and discussed coverage for the Datsun with agent Henry Hattemer and Martha De-Busk, a Farm Bureau employee. At that time some discussion was had regarding whether coverage for this particular high-performance Datsun vehicle could be provided by Farm Bureau, or whether the car would have to be listed with Farm Bureau’s rated company, Federated Guaranty Mutual Insurance Company. (Federated Guaranty is a separate corporation from Alabama Farm Bureau on paper only, and exists solely for the purpose of insuring high risk persons and automobiles. Both companies are operated by the same officers and employees using the same offices, equipment, etc.) The insurer’s employees also requested certain information about the car which Mrs. Ware was unable to provide. Mrs. Ware stated she would contact them again to supply this information. She did not make application for insurance at this time.

Two days later Mrs. Ware contacted Mr. Hattemer again to give him the requested information and to inquire further about possible coverage for the Datsun with Farm Bureau. She indicated that she desired the same coverage as the family had on their other vehicles, i. e. “full coverage.” Mr. Hattemer stated that he would draw up a proposal and meet with her to discuss the matter. He also told her that his company would need to have a photograph of the Datsun.

On September 2,1977 Mr. Hattemer visited Mrs. Ware at her office in the county courthouse. A co-worker of Mrs. Ware, Linda Buckner, was present during much, if not all, of the discussion between Mr. Hat-temer and Mrs. Ware. The proposal sheet presented to Mrs. Ware by Mr. Hattemer indicated that the premium for six months’ coverage for the Datsun would be $471.70, $197.80 of which represented the premium for liability coverage only.

According to Mr. Hattemer’s testimony, when he left Mrs. Ware’s office that afternoon he had no doubt that she desired liability coverage only for the Datsun. However, Mrs. Ware testified that she was “shocked” at the amount of the premium for full coverage and that the meeting concluded without any agreement having been reached. She told Mr. Hattemer that she had instructed her son to drive the Datsun back down to Prattville from Tuscaloosa where Al attended college, in order to have pictures made of the car, and that she would talk further with Mr. Hattemer about insuring the car.

Mrs. Ware then called her husband, who was in Cullman at the time. He told her that they “didn’t operate with part coverage on anything,” but that the proposed premium was too high and she should shop around. On that same day Mrs. Ware obtained price quotations for full coverage from other insurers. She also called the Farm Bureau office and requested Mrs. De-Busk to have Al call her when he arrived there from Tuscaloosa.

Mrs. Buckner’s testimony confirmed that no agreement concerning insurance for the Datsun was reached between Mrs. Ware and Mr. Hattemer during the discussion in Mrs. Ware’s office, and that after Mr. Hat-temer left the office Mrs. Ware continued to make inquiries with other insurance companies.

Mrs. Ware’s son, Al, testified that after purchasing the car he had taken it back to Tuscaloosa and that he had used the car at school. His mother had telephoned him at about 7:00 a. m. on Friday morning, September 2, 1977, and had instructed him to drive the car down to the Farm Bureau office that afternoon to have a picture of the car taken. Mrs. Ware had instructed him neither to buy insurance nor to sign any application. A1 arrived at the office late that afternoon, having driven directly from Tuscaloosa, and told Mrs. DeBusk that he was there to have the picture made. Mrs. DeBusk saw that the photograph was taken and elicited information from A1 concerning the car, his driving record, etc.

A1 told Mrs. DeBusk that he had a friend waiting in the car and was in a hurry to go to a football game that night. Mrs. De-Busk told A1 to sign some papers. A1 testified that he signed the papers, not knowing what they were at the time, in the belief that by doing so he would not have to make another trip home from college “if we decided to get insurance” from Farm Bureau. Mrs. DeBusk quoted no premiums to him, nor did he pay her any money. A1 testified that she told him that the Datsun was covered until September 17th (thirty days after the purchase date). A1 then went home and related to his mother the events that had occurred at the Farm Bureau office that afternoon. The next day Mrs. Ware called the office to find out what A1 had signed, but the office was closed on Saturday.

Mrs. DeBusk testified that she was instructed by Mr. Hattemer to see that a picture of the car was taken and to get A1 to sign the application. She stated that she did not discuss with A1 the kind of coverage for which the application provided, nor the amount of the premium; and, that she was sure A1 knew he was signing an application, but that A1 apparently did not know he was supposed to sign an application that day because he “fussed” about having to come back inside the office to do so.

The application signed by A1 remained in the Farm Bureau office until Tuesday September 6th, the day after Labor Day, at which time Mrs. DeBusk filled in the rates and signed Mr. Hattemer’s name to the application. The effective date of coverage stated in the application is September 2, 1977. The application indicates that there is no damage to the Datsun and that the insured, A1 Ware, is to be billed for the premium.

However, prior to the time the application was sent to Farm Bureau’s home office in Montgomery, plaintiff personally appeared at the Farm Bureau office in Pratt-ville. Mr. Ware testified that after being reassured that he still had insurance on Al’s Datsun, he informed the insurer’s employees that during the previous weekend A1 had been involved in a one-car accident and had “totaled” the Datsun. He gave them some of the information necessary for filing a claim. In her testimony Mrs. DeBusk denied telling Mr. Ware that morning that the Datsun was still covered. She testified that after receiving this information about the accident she made no changes in the application bearing Al’s signature.

Later that day the application was sent to Farm Bureau’s home office where it was received on September 8, 1977 and countersigned by a Farm Bureau officer the following day. The policy issued on the basis of the application, Federated Guaranty Policy No. G123427, was received by the Wares on September 13,1977. The policy provided for liability coverage only. The Wares were billed $194 for the premium on this policy, but this premium was never paid.

Late in September 1977, the Wares were informed that their claim under the newly acquired automobile provisions of policy number A661914 was being denied. This denial of coverage was based on the insurer’s position that the automatic insurance coverage terminated as of September 2, 1977, “[b]ecause the application [signed by Al] had been made and coverage specified that the applicant wanted [liability only.]”

Mr. Ware filed a two count complaint, alleging in count one that Farm Bureau owed him the amount due under the automatic insurance provisions of the Farm Bureau policy. He also alleged in count two that the Federated Guaranty policy had been fraudulently issued in an attempt to avoid his claim and that the insurer had tortiously failed to settle his claim.

After hearing the evidence ore tenus the trial court issued a judgment in favor of the insured in the amount of $5,179.72, that being the amount of loss less the deductible amount under the terms of the insurance contract. The insured was also awarded $2,589.86 as punitive damages for the fraudulent conduct of the insurer.

The pertinent issue to be decided in this appeal is the point in time at which the automatic insurance for the Datsun under the Farm Bureau policy terminated. Farm Bureau argues that coverage under the automatic insurance provisions in the Farm Bureau policy terminated upon Al’s application for the Federated Guaranty policy, citing Liberty Mutual Insurance Company v. State Farm Automobile Insurance Company, 262 Md. 305, 277 A.2d 603 (1971); Cook v. Suburban Casualty Co., 54 Ill.App.2d 190, 203 N.E.2d 748 (1964); and 7 Blashfield Automobile Law and Practice § 316.3 (3d Ed. 1966). However, even if the assumption is made that Al’s signature on the application constituted a bona fide application for insurance, a reading of these authorities indicates that automatic insurance coverage terminates when other specific insurance is purchased and the newly-acquired automobile becomes described in the new policy.

In the instant case the Federated Guaranty policy was not introduced into evidence. Thus it is uncertain whether the Federated Guaranty policy contained a provision similar to the above-quoted section 13(a) of the Farm Bureau policy, stating that the policy shall not be binding upon the insurer until the declarations made a part thereof are countersigned by the insurer’s officer. Portions of the record — specifically the testimony of Jane Adams, assistant vice-president of auto underwriting, who was in part responsible for the decision to deny the Ware’s, claim — tend to indicate that the Federated Guaranty policy did contain such a provision.

Nevertheless, the law in this state is that an application for insurance is a mere proposal by the applicant, which must be accepted by the insurer as made before there is a meeting of minds and thereby a resulting contract. Life Insurance Company of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900 (1974) and cases cited therein. The testimony reveals that the Federated Guaranty policy was countersigned and issued on September 9, 1977, approximately six days after the accident and three days after the insurer had notice thereof. Consequently, the Federated Guaranty policy did not constitute “other collectible insurance” which, under § 13(a) of the Farm Bureau policy, would terminate the automatic insurance coverage.

The insurer argues that in order for the automatic insurance provisions to apply, the insured must comply with that provision of the policy requiring notice to the insurer of acquisition of the new vehicle and payment of any additional premium required, citing Southern Guaranty Insurance Co. v. Wales, 283 Ala. 493, 218 So.2d 822 (1969). In the Wales case the trial court erroneously found that a newly-acquired truck was covered by the automatic insurance provisions of a policy, where the policy had been renewed twice subsequent to the acquisition of the truck but the insured had failed to notify the insurer until after the loss had occurred.

In the instant case the insurer was timely notified of the acquisition of the Datsun. The testimony of Jane Adams, the Farm Bureau officer, indicated that it was the insurer’s practice to determine the amount due as the additional premium for the automatic insurance coverage and then bill its customers for this amount, rather than requiring such payment at the time notice to the insurer is given. However, no such bill was ever sent to the Wares. The only premium notice they received was the bill for $194 on the Federated Guaranty policy. Thus, Farm Bureau’s argument is that no coverage existed under the automatic insurance provisions because the Wares failed to pay a premium for which they were never billed and the amount of which was unknown to them. We are unable to agree with this reasoning.

Farm Bureau’s other principal ground for appeal is the trial court’s finding that the insurer fraudulently refused to pay Ware’s claim. It argues that no evidence of fraud on its part was adduced at trial, and cites Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976), for the proposition that a finding of fraud must be based on proof that there existed an intention not to honor a claim when the policy was issued.

We think the record amply supports the trial court’s finding of fraudulent conduct by Farm Bureau. As both parties to this appeal point out, Black’s Law Dictionary 788 (4th Ed. rev. 1968) defines “fraud” as follows:

An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right; a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury.

Farm Bureau’s ex post facto issuance of the Federated Guaranty policy, on the basis of an “application,” the validity of which is, at best, questionable, and with knowledge that the liability “coverage” thereunder was virtually worthless from the date of issuance forward, could properly have been viewed by the trial court as a fraudulent attempt to avoid payment of Ware’s valid claim.

The proposition for which Old Southern Life is cited is inapplicable to the case at bar. That case involved the denial claims under a single hospitalization insurance policy. The insurer was alleged to have induced the insured to purchase an insurance policy by fraudulently representing that claims under the policy would be paid. In the case at bar, however, the fraud complained of does not involve the representations made at the time of the purchase of the Farm Bureau policy, but rather the issuance of the Federated Guaranty policy which the insurer attempted to use as a shield to avoid liability under the Farm Bureau policy.

There being no reversible error, this case is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Eva P. QUICK v. UTOTEM OF ALABAMA, INC., State of Alabama, Department of Industrial Relations.
    Civ. 1628.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.

      James G. Stevens and Stanford H. Dow-ney, Jr., Birmingham, for appellant.
    Frank D. Marsh, Asst. Gen. Counsel, State of Alabama, Dept, of Industrial Relations, Montgomery (for George D. Cocoris, General Counsel, Montgomery), for appel-lee.
   HOLMES, Judge.

This is an unemployment compensation case.

The appellant, Quick, was denied benefits under Alabama’s Unemployment Compensation Act. Thereafter, she followed the statutory procedure for a review of the initial denial of benefits. This review culminated in a decision by the Board of Appeals of the Department of Industrial Relations upholding the denial of benefits. Notice of this decision, postmarked April 28, 1978, was mailed to Quick. Twenty-one days thereafter, on May 19, 1978, she gave notice of appeal of the Board of Appeal’s decision to the Circuit Court of Jefferson County.

The State of Alabama, Department of Industrial Relations, filed a motion to dismiss the appeal to the circuit court on the grounds that the appeal was not timely under Code of Ala.1975, §§ 25 — 4-94, and 25-4 — 95. The trial court granted the motion and dismissed the appeal. Quick appeals to this court from that dismissal.

The dispositive issue on appeal is whether the appeal to the circuit court was timely filed. We find that it was not timely made and affirm.

Quick’s sole contention on appeal is that the statutory time periods in §§ 25 — 4r-94 and 95 for perfecting an appeal from the Board of Appeals to a circuit court are unconstitutionally “vague and over-broad.” We find no merit in this contention as it relates to this appeal.

The time periods as set out in the statute are to this court clear and unambiguous.

Section 25 — 4-94 reads in pertinent part as follows:

“(d) Any decision of the board of appeals . . . shall become final 10 days after the date notification thereof shall have been mailed, postage prepaid, to the parties to the proceeding . . .”

If an appeal from the decision by the board of appeals is desired, § 25 — 4-95 provides that an appeal to the circuit court may be perfected by filing, within ten days after the decision of the board of appeals has become final, a notice of appeal in the circuit court of the county of the residence of the claimant.

Applying the law to the facts in the instant case, we find the following: Notification of the board’s decision was mailed to Quick on April 28, 1978. That decision became final ten days later on May 8. The statutory period for perfecting an appeal from that decision to the circuit court expired in a further ten days on May 18. Quick’s notice of appeal was not filed within this period and was therefore properly dismissed. This is the only result that the trial court would have reached from a reading of the statute. Where a statute is unambiguous, it will be given its plain meaning. State v. Dawson, 264 Ala. 647, 89 So.2d 103 (1956).

To this court, it is clear that the statute is not overbroad. Unemployment compensation is a creature of statute and was unknown at common law. The procedure for pursuing an unemployment compensation claim is therefore completely governed by statute. Ex parte Miles, 248 Ala. 386, 27 So.2d 777 (1946). Code of Ala.1975, § 25-4-96,.states that the statutory procedures in §§ 25-4-94 to 25-4 — 97, for appealing an unemployment compensation claim are exclusive. The appellant has not complied with these procedures, and her appeal to the circuit court was therefore properly dismissed.

For these reasons, this case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BRADLEY, Judge.

text:
    In re Charles C. ROWE v. Honorable William R. HILL, Jr., as Judge of the Shelby County District Court. Ex parte Charles C. ROWE.
    Civ. 1652.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.
    Walter J. Merrill of Merrill, Porch, Doster & Dillon, Anniston, for petitioner.
    James C. Pino of Green, Pino & Tanner, Pelham, for respondent.
   BRADLEY, Judge.

A petition has been filed in this court asking it to issue a writ of prohibition to the District Judge of Shelby County to prevent him from hearing a matter involving the custody of a minor child due to the fact that the custody of this same child is a matter of continuing jurisdiction of the Circuit Court of Calhoun County.

The respondent judge has filed his answer in which he contends that the District Court of Shelby County has exclusive, original jurisdiction to hear and decide the custody of this child by virtue of § 12-15— 30(a)(1) and § 12-15-30(b)(l), Code of Alabama 1975, which are as follows:

(a) The juvenile court shall exercise exclusive original jurisdiction of the following proceedings, which are governed by this chapter:
(1) Proceedings in which a child is alleged to be delinquent, dependent or in need of supervision .
(b) The court shall also exercise exclusive original jurisdiction of the following proceedings, which shall be governed by the laws relating thereto:
(1) Proceedings to determine custody or to appoint a legal custodian or guardian of the person of a child when the child is otherwise before the court. This provision, however, shall not be construed to deprive other courts of the right to determine the custody or guardianship of the person of children when such custody or guardianship is incidental to the determination of cases pending in those courts. Such courts, however, may certify said questions to the juvenile court for hearing and determination or recommendation;

It appears from the record before us that Brett Lloyd Rowe, a fourteen year old male, is the natural child of Betty G. Smith and Charles C. Rowe who were divorced in January of 1976. The divorce was granted in Calhoun County which was then the domicile of the parents. The divorce decree vested the care, custody and control of Brett with the father, Charles C. Rowe. Subsequently, Mrs. Smith (then Betty Rowe) filed a petition for modification of the divorce decree seeking to gain custody of Brett. The petition was denied on January 3, 1978.

On August 18, 1978 Betty Smith filed a petition in the Juvenile Court of Shelby County, Alabama averring that hér son Brett is a dependent child and that the custody of the child is in controversy. Her petition apparently relied on the above-quoted § 12-15-30 and on Code of Alabama 1975, § 12-15-l(10)(c), which defines a “dependent child” as “[a] child [wjhose custody is the subject of controversy.” She also alleged that the child is fourteen years old and wishes to reside with her. There was no averment in her petition that the safety or welfare of the child was threatened.

On September 7, 1978 the District Court of Shelby County denied the father’s motion to dismiss the dependency petition filed in that court by the mother.

The father, petitioner here, argues in brief that the circuit court has concurrent jurisdiction with the district court to hear and decide custody of minors, and the circuit court, which first acquired custody jurisdiction, keeps that jurisdiction until a final determination of the custody is made. The respondent judge replies that the true issue is not whether the District Court of Shelby County is attempting to usurp the jurisdiction of the Circuit Court of Calhoun County but whether the District Court of Shelby County, Juvenile Division, has jurisdiction to change the award of custody when the child is before the court on a petition of dependency.

As previously, noted, the District Court of Shelby County has “exclusive original jurisdiction” over proceedings in which a child is alleged to be “dependent” and that same court also has “exclusive original jurisdiction” over proceedings in which custody of a child is to be determined when the child is otherwise before the court. §§ 12-15— 30(a)(1) and 12-15-30(b)(l). However, § 12-15-30(b)(l) specifically provides that the jurisdiction of the juvenile court is not to be construed as depriving other courts of jurisdiction to decide child custody as an incident to the determination of cases then pending in those courts.

In the case now before us, the custody of the child in question was placed in the father by the Circuit Court of Calhoun County pursuant to a divorce decree in January 1976. Subsequent to that decree the Calhoun Circuit Court was again called on to decide the custody of the child in question as a result of a modification petition filed by the mother, Mrs. Betty Smith, the petitioner in the district court. This request for change of custody was denied.

In Wise v. Watson, 286 Ala. 22, 236 So.2d 681 (1970) our supreme court said:

In case of divorce of the parents, equity courts have inherent power to protect the welfare of the minor children bom of the broken marriage and to make appropriate allowances for them, . . . and, having once obtained jurisdiction over the children of divorced parents, the court retains jurisdiction during their infancy. [Citations omitted.]

In the case at bar the Circuit Court of Calhoun County had taken jurisdiction of the child in question as a result of the divorce decree and had decided its custody, not once, but twice. That court will retain jurisdiction over the custody of this child until the child reaches majority. Wise v. Watson, supra.

In view of the continuing custody jurisdiction of the Calhoun County Circuit Court over the child in question, the Shelby County District Court does not have jurisdiction pursuant to § 12 — 15—30(b)( 1) to determine custody of the child in question under the circumstances of this case. Not only does the juvenile statute, i. e. § 12-15-30(b)(l), recognize that other courts of this state have jurisdiction to hear and decide child custody cases, but the decisions of our supreme court hold that the Alabama circuit courts in equity have inherent jurisdiction to determine questions relating to the custody of minors. Long v. O’Mary, 270 Ala. 99,116 So.2d 563 (1959); Whitfield v. Saulsberry, 247 Ala. 690, 26 So.2d 93 (1946). The Circuit Court of Calhoun County assumed jurisdiction of the custody of the child involved here prior to the filing of the petition in the Shelby County District Court for determination of custody of said child and retains that jurisdiction for determining custody until the child reaches its majority or is otherwise emancipated. Department of Pensions & Security v. Oswalt, 275 Ala. 63, 152 So.2d 128 (1963); Wise v. Watson, supra. We do hasten to point out, however, that this is not a case where the Shelby County District Court is being called on to preserve the best interests or protect the safety and well-being of the child; the sole question posed to the court was the custody of the child.

In the present posture of this case the Shelby County District Court is without jurisdiction to decide the custody of the child in question and the writ of prohibition will issue to the judge of said court to prohibit him from assuming jurisdiction of this custody proceeding.

WRIT GRANTED.

WRIGHT, P. J., and HOLMES, J., concur.


author: HARRIS, Presiding Judge.

text:
    Frederick HALL, alias v. STATE.
    7 Div. 602.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.

      Howard B. Warren, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Eddie Hardaway, Jr., Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted for the offense of carnal knowledge of a girl under twelve years of age. The trial court sentenced him to life imprisonment in the penitentiary. At arraignment, in the presence of counsel, he pleaded not guilty. After sentence was imposed appellant gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent him on this appeal.

The sufficiency of the evidence is not presented for review. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; there was no motion for a new trial; and no exceptions were reserved to the oral charge of the court.

The evidence presented by the State is undisputed. Appellant did not testify nor did he offer any evidence in his behalf.

The victim was a ten year old girl and on the night of October 31, 1977, (Halloween night) she and three of her girl friends went “trick or treating.” The victim was dressed in a costume and had blotches of rouge on her forehead, chin and cheeks. The girls left home at about 5:30 o’clock on that date and during the course of the afternoon they started walking down the railroad track, each carrying a bag of candy and other things they had collected from generous people in the neighborhood. While walking on the track in a group they noticed two men following close behind them. The victim tripped and fell on the track and one of the men grabbed her from behind. Her friends started to her rescue but saw one of the men run his hand in his pocket and they ran from the scene. The victim’s friends went to a house nearby and reported that the victim had been abducted by two black men. The victim’s mother was called and the police were notified. The mother and the police arrived at the scene but were unable to locate the missing girl.

According to the testimony of the victim appellant and his companion forced her to accompany them. They crossed East Broad Street near the James L. Cain School and went behind the school to a cemetery where appellant’s companion, Larry Taylor, ordered the young girl to remove her clothing. She refused to do so. The men carried the victim across Davis Street to an abandoned store where she was again ordered to disrobe and she again refused to remove her clothing. The men became very angry and in a violent and threatening tone of voice directed the victim to undress and lie on the floor. She complied with these commands and Larry Taylor had sexual intercourse with her while she was crying and protesting. She kept begging him to stop as he was hurting her. He refused to heed her outcries and completed the sexual act. Appellant then had sexual intercourse with the helpless victim while she was still crying and begging him to stop. After this traumatic experience the victim was instructed to dress.

After the victim dressed the men forcibly carried her in an automobile and drove her to an unidentified house. They forced her to enter the house and into a bedroom where both men took turns in having sexual intercourse with the girl. They kept her in this house all night. The next morning appellant led the victim from the house and gave her directions to Goss Avenue. When she arrived at Goss Avenue, she went to a house and asked to use the telephone to call her mother. Her mother was not at home at the time. She had been out all night walking the railroad track looking for her daughter with a flashlight. The victim’s brother and stepfather came and picked her up. She was carried home and then to Police Headquarters where she gave the officers a description of her assailants. From there she was carried to the hospital for treatment. She was so distraught and mentally disturbed she lost the following week from school.

In the meantime the officers began an intensive search for the two men involved in the assault upon the young girl. They apprehended and interviewed Larry Taylor first. On the night of November 1, 1977, appellant was arrested at the home of one of his friends. He was taken to jail where he was told he was charged with kidnapping and rape. He was not interviewed at that time but put in a cell while the officers continued their investigation on this particular case.

Approximately three hours later the officers returned to the jail and had the jailer bring appellant to the interrogation room. Before appellant was questioned he was given the Miranda rights and warnings and he told the officers he understood his rights and did not want a lawyer. He signed a waiver of rights form and gave a confesso-ry statement in his own handwriting.

Appellant filed a motion to suppress the statement written by him. A voir dire hearing was conducted out of the presence and hearing of the jury to determine the voluntary character of the confessory statement. At this hearing it was shown that appellant was not threatened or coerced in any manner to get him to make the confes-sory statement. It was further shown that no promises, rewards or hopes thereof, or inducements of any kind were made, or held out to appellant, to get him to write the statement or to sign the waiver of rights form. At the conclusion of the hearing the trial court ruled that the confessory statement was voluntarily, knowingly and understandingly made.

Back before the jury the State laid the proper predicate and the waiver of rights form was admitted into evidence without objection. Appellant objected to the introduction of the written confession on the ground the officers had told appellant that he was charged with kidnapping and rape and not carnal knowledge of a girl under twelve years of age.

Appellant contends that the officers should have told him that he would be charged with carnal knowledge of a girl under the age of twelve and that consent to such a charge was no defense.

The officers testified that they went to the District Attorney’s Office and gave them the facts of the case and that it was the District Attorney’s Office who made the decision to charge the appellant with offense for which he stands convicted.

The trial court determined at the voir dire hearing that the confession was voluntarily made and upon the proper predicate being laid the written confession made by appellant was introduced into evidence.

“STATEMENT OF:

Date: 11-1-77 Page No. 1 “Frederick Hall 21 — 1707 Litchfeil Ave. 7:30. Larry 'Taylor and I left his house went over by Hillside Circle. Saw about four girls walking we went over by the realroad (sic) Track, thay (sic) was in front of us. Larry grab one of them, trow (sic) her on the ground see (sic) hollow (sic) Larry hit her in the face, we went down the track. I kept telling him to let her go he never said a word, we got off the track went cross east Broad went behind the school went trou (sic) the grave yard stop at the old store on davis (sic). Larry told her to take off her close (sic) and lay down Larry made love to her first then me Larry left went to he (sic) house Came back with Jimmy and the car. Larry put the coat over her head walked her to the car. got in the back seat, I got in the front, we went to Larry house got out the car. Larry picked her up carryed (sic) her to the house, went right to the bedroom Larry went first again Jimmy and I was in the Living room then roger Came said what’s happyining (sic) I said it’s a girl in the back. He came in and sit down then Larry came out then I went in after I got through Jimmy went in then Later on Victor came, roger had left. Victor said that he had talk to some police man’s on his was (sic) up. but he never did call no name. Larry had went out the back door went to the front door put the lock on it. Came back in the house through the back, lock the screem (sic) and back door from the inside. After Victor had goten (sic) through
/s/ Frederick Hall Witness: Sgt. N. W. Griffin
Officer J. B. Jeffers “STATEMENT OF:
Date: 11-1-77 Page No. 2%bi “Frederick Hall — 21—1707 Litchfeil Ave “he came in Liveing (sic) room where I was at the time Larry, Victor and me was the only one there beside the girl everyone els (sic) had left, so after Victor came in the liveing (sic) room Larry went back in the bedroom and got back in the bed. Victor and I talk for a while, then Victor left saying he was going home, the girl kept saying she was sleepy and tirded (sic) by that time I was laying on the softer (sic) in the liveingroom (sic) and I went to sleep leaveing (sic) Larry and the girl on the bed. This Statement is true and courect (sic) to the best of my nolet (sic) and no trate (sic) or promise had been made to me
/s/ Frederick Hall
Witness: Sgt. N. W. Griffin Officer J. B. Jeffers”

The rule is that extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether or not a confession is voluntary and, unless it so appears, it should not be admitted. Myhand v. State, 259 Ala. 415, 66 So.2d 544; Phillips v. State, 248 Ala. 510, 28 So.2d 542; Hines v. State, 260 Ala. 668, 72 So.2d 296; Womack v. State, 281 Ala. 499, 205 So.2d 579; Bass v. State, 55 Ala. App. 5, 312 So.2d 576; Botsford v. State, 54 Ala.App. 482, 309 So.2d 835.

Once the trial judge has made a determination that a confession was freely and voluntarily made the probative effect to be given to the confession is for the jury. Myhand v. State, supra.

This was a horrible crime, cold, deliberate and calculated, and it took the jury only fifteen minutes to return a verdict finding appellant guilty as charged in the indictment. As we have said on other occasions it is a sad commentary upon the very name of civilization of the ease with which human beings are transformed into beasts.

We hold the confession was properly admitted into evidence.

Appellant asserts that the statute under which he was indicted and prosecuted is violative of the Equal Protection Clause of the Fourteenth Amendment. We do not agree.

The State has a vital interest in the protection of young girls from the animalistic instincts of such men. It is the declared public policy of this State and in no wise runs afoul of the Equal Protection Clause of the Fourteenth Amendment, or any other constitutional provision.

In Powell v. State, 53 Ala.App. 30, 297 So.2d 163, we held:

“Carnal knowledge is a statutory crime and was unknown to the common law. Title 14, Sections 398 and 399, Code of Alabama, has the effect of changing and broadening the common law and they fix the public policy of this state with respect to the crime of rape and kindred offenses. While consent is a defense in rape cases it is absolutely no defense to prosecutions under our carnal knowledge statutes, supra. This court said in Owens v. State, 29 Ala.App. 53, 191 So. 899:
“ ‘A different rule applies in prosecutions for rape and kindred statutory offenses. If the female is over sixteen years of age she may consent, and if the intercourse is had with her consent it is not rape. If, however, the intercourse is had by force and against her will the offense is complete, and the defendant would be guilty of rape. If the female is under sixteen years of' age and sexual intercourse is had, with or without the consent of the female, the statutory offense of carnal knowledge would be complete. The effect of the statutes, hereinabove cited, is to raise the age of consent and to fix a different punishment on convictions for rape and kindred statutory offenses where the intercourse is with the consent of the female, and she is of an age between twelve and sixteen years. If the intercourse is had by force and against the will of the female, there would be no reduction in the punishment.’
“The design and breadth of our carnal knowledge statutes are to protect young girls of tender years from falling victims to the wiles, schemes, debasedness, and depravity of over-sexed men who use arts of flattery and other inducements to persuade them to surrender their most precious possession to the gratifications of men who have lost their moral values and think of nothing save their animal instincts regardless of specific intent on the part of an accused to carry forward by force the sexual act to completion, and regardless of consent or non-consent of the child. Smith v. State, 34 Ala.App. 45, 38 So.2d 341.”

We have carefully searched the record for errors affecting the substantial rights of appellant and have found none. He was accorded a fair and impartial trial, and the sentence imposed fits the crime for which he was convicted.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Frederick HALL.
    78-129.
    Supreme Court of Alabama.
    Jan. 19, 1979.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: BOOKOUT, Judge.

text:
    David CROW v. STATE.
    8 Div. 44.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.
    Robert M. Shipman, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Possession and sale of lysergic acid diethylamide (LSD); sentence: three years imprisonment.

The trial of this case commenced on the morning of December 7, 1977. After the State presented its case in chief and rested, the defense proceeded with its case. A lunch recess was taken during the presentation of the defense. After the lunch recess, and before proceeding with the presentation of the defense, a juror presented a note to the trial court. The trial court passed the note on to the attorneys for both sides. The note concerned the testimony of a State’s witness, Officer Charles Lee Baker. Officer Baker had testified that the alleged crime had taken place in appellant’s automobile and that he had the license tag number of that automobile. The note from the juror stated as follows:

“Was the car tag number which the officer referred to registered in the name of the defendant?”

After the defense rested, the State recalled Officer Baker as a rebuttal witness. Baker was allowed to testify, over the appellant’s objection, that he got the tag number and what the number was. Emmett Sanders, the County License Director, was then called as a State’s rebuttal witness. He testified that the tag number was registered in the name of appellant. No objection was taken to the testimony of Sanders.

I

Appellant contends on appeal that the trial court was in error for not granting a mistrial because he contends that the rebuttal testimony admitted was not rebuttal but was in fact testimony that should have been brought out on direct examination.

It is within the discretion of the trial court to admit rebuttal testimony. Hall v. State, Ala.Cr.App., 352 So.2d 40 (1977). This discretionary rule also applies to testimony which more properly should have been offered as part of the case in chief. Alexander v. State, 51 Ala.App. 267, 284 So.2d 292 (1973); Nichols v. State, 276 Ala. 209, 160 So.2d 619 (1964); Title 7, § 252, Code of Ala.1940 (now § 15-14-4, Code of Ala.1975). We do not think the trial court abused its discretion.

II

Appellant’s next contention is that the trial court committed error by allowing a portion of the testimony to be read to the jury after they had begun deliberations without consulting with appellant’s counsel. Appellant says that the portion of testimony read was not the complete testimony the jury had requested to hear, it was highly prejudicial, and put undue emphasis on a certain part of the testimony.

The question posed to the trial court by the jury during their deliberations was as follows:

“During Officer Baker’s testimony he said he had the tag number of the car. We are not clear on how and when he got this information. We would like clarification.”

The trial judge instructed the court reporter to read the following portion of Officer Baker’s testimony to the jury:

“Q. Now, on the day that you met David Crow, could you tell me the car again that he drove up in? I think you said it was a—
“A. It was a silver car, I am not sure if it was a Chevrolet. At that time I thought it was a Chevrolet.
“Q. Do your notes reflect what it was? “A. Yes, sir, they reflect a Chevrolet. I have a tag number of the car.
“Q. Officer Baker, you have referred to your report and your notes there. When were those notes and when was that report prepared by yourself?
“A. Right after I sealed the evidence, the same night.
“Q. So, the notes and the description contained therein were made when your memory was fresh, it was made the same day?
“A. Approximately an hour later, somewhere in there.”

After which the following occurred:

“A JUROR: Yes, Judge, that was the point we were not exactly sure what we had.”

The jury then returned to the jury room and resumed deliberations. At this point, appellant’s counsel requested that other parts of the officer’s testimony be read to the jury. The trial court denied the request and an objection was taken.

Appellant waited until after the testimony was read and the jury had returned to deliberations before objecting. The objection came too late. Carter v. State, Ala. Cr.App., 356 So.2d 682 (1978), cert, denied, Ala., 356 So.2d 689. Likewise, in order for this court to review an alleged erroneous admission of evidence in the trial court, a timely objection must be made to the introduction- of the evidence. Gibbs v. State, Ala.Cr.App., 342 So.2d 448 (1977); Oatsvall v. State, Ala.Cr.App., 57 Ala.App. 240, 327 So.2d 735 (1975), cert, denied, 295 Ala. 414, 327 So.2d 740 (1976).

Even if the objection had been timely, we fail to find any prejudice resulted from the reading of the testimony. Carter, supra. The portion of testimony read by the court reporter was an accurate account of Officer Baker’s testimony. The comment by the juror following the court reporter’s reading of the testimony indicates that the jury was satisfied with the portion read. As stated in Morrow v. State, 52 Ala.App. 145, at 149, 290 So.2d 209, cert, denied, 292 Ala. 743, 290 So.2d 213, cert, denied, 419 U.S. 853, 95 S.Ct, 97, 42 L.Ed.2d 85 (1973), quoting from Autry v. State, 34 Ala.App. 225, 38 So.2d 348 (1949):

“. . . Where a jury itself requests that certain testimony be read over to them by the court reporter, to refresh their recollection concerning it, the emphasis on this portion of the testimony is already inherently present in the jury’s mind, and certainly the mere rereading of the requested portion of the testimony, to clarify the jury’s recollection thereof cannot add any emphasis not already present as to such testimony. . . . ”

III

During oral argument in this court, appellant’s counsel argued that the State failed to prove its case, especially the .identity of the appellant. That argument was not made in appellant’s brief. However, in reviewing the record, we find there was no motion to exclude the State’s evidence, no request for the affirmative charge, and no motion for a new trial. Thus, the sufficiency of the evidence is not subject to review. Youngblood v. City of Birmingham, Ala.Cr. App., 338 So.2d 526 (1976).

Counsel contended in argument that the identity of the appellant was not proved since appellant had an alibi. A jury question is always presented where there is a conflict between the State’s case and the appellant’s alibi. Mullins v. State, Ala.Cr. App., 344 So.2d 539, cert, denied, Ala., 344 So.2d 543 (1977); Oatsvall, supra. The record reveals sufficient evidence of identity which, if believed by the jury, would support the verdict. The prosecuting witness was questioned and responded as follows:

“Q. Officer, Baker, take a look at the defendant over here next to Mr. Ship-man. Is that the man you bought the LSD from, the man you gave the two twenty-dollar bills to?
“A. Yes, sir, it is.”

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte David CROW.
    78-135.
    Supreme Court of Alabama.
    Jan. 26, 1979.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Ernest Corbitt WILLIFORD v. STATE.
    4 Div. 626.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied Dec. 19, 1978.
    Ernest H. Hornsby of Lewis & Hornsby, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the unlawful possession of valium in violation of the Alabama Controlled Substances Act. Section 20-2-20, Code of Alabama 1975. The trial judge sentenced him to twelve years’ imprisonment.

The appellant was arrested in the process of making a sale to an undercover agent of the Dothan Police Department. Five thousand tablets of valium were discovered in the appellant’s motel room where the arrest was made. Uniformed officers executed a search warrant at the time of arrest. The validity of that warrant is not challenged on appeal.

I

In his motion for new trial the appellant raised the issue of the constitutionality of Section 20-2 — 20, Code of Alabama 1975. The constitutionality of The Alabama Uniform Controlled Substances Act was upheld in Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975), and followed in Napier v. State, 338 So.2d 463 (Ala.Cr.App. 1976). The appellant presents no objection or ground for declaring the Act unconstitutional which was not considered in Cassell. Therefore the motion for new trial on this ground was properly denied.

II

The appellant’s contention that there was a break in the chain of accountability of the controlled substances is without factual merit. The record before this court simply does not support such a finding or allegation.

The purpose of establishing a chain of custody is to show a reasonable probability that evidence has not been tampered with. Bell v. State, 339 So.2d 96, 98 (Ala.Cr.App.1976). Such a reasonable probability was definitely established in the present case. Washington v. State, 339 So.2d 611, 615 (Ala.Cr.App.), cert, denied, 339 So.2d 616 (Ala.1976); Cartlidge v. State, 52 Ala.App. 495, 294 So.2d 462, cert, denied, 292 Ala. 715, 294 So.2d 467 (1974).

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain. (Citations omitted).”
Sexton v. State, 346 So.2d 1177, 1180 (Ala.Cr.App.), cert, denied, 346 So.2d 1180 (Ala.1977).

Reviewing the testimony we find no missing link in the chain of identification or possession of the seized valium.

Ill

Though the appellant objected to the closing argument of the prosecutor “about popping pills at Dothan High School” the language deemed objectionable was not sufficiently identified in the objection or set forth in the record to inform this court of what the District Attorney actually said and the context of the remark. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973).

We have carefully reviewed the record and found no error adverse to the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.

      . From the record:
      “MR. HORNSBY (Defense Counsel): Judge, we object to that and not for the sake of argument. This is so farfetched that good gracious. Talking about popping pills at Do-than High School. Good Lord.
      “MR. MARTIN (Assistant District Attorney): I am just telling how . _ _
      “MR. HERRING (Defense Counsel): This argument is just outside the realm of argument and - . _
      “THE COURT: If one of ya’ll will talk at a time, maybe I can decide if it is admissible or objectionable. What is it that _ _ _
      “MR. MARTIN: I was arguing that this was good police work to go through Melvin Adams (a witness who testified during the trial) to get to this man.
      “THE COURT: Stick to that and don’t be getting into that.
      “MR. HERRING: Your Honor, we object to him going into detail about how the police handles their drug operations. There is nothing in evidence about that.
      “THE COURT: As related to this case, I think he has the right to do it. Go ahead.”


text:
    Ex parte Ernest Corbitt WILLIFORD.
    78-210.
    Supreme Court of Alabama.
    Jan. 26, 1979.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


text:
    J. Howard ESTES v. STATE.
    6 Div. 573.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied Dec. 19, 1978.
    Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of buying, receiving or concealing stolen property, the value of which was set by the jury at $7,000. Appellant was sentenced by the trial court to a term of four years in the penitentiary. At arraignment, in the presence of counsel, appellant entered a plea of not guilty. Following sentencing, he gave notice of appeal and trial counsel represents him on this appeal.

Appellant was charged by indictment with buying, receiving, concealing, or aiding in concealing one two-door Lincoln automobile, valued at $9,675, the personal property of Victor C. West, knowing that it was stolen and not having the intent to restore it to the owner.

A motion for new trial was timely filed on grounds, among others, as follows: (1) there was a fatal variance in the pleadings and proof in that the indictment averred ownership of the stolen property in Victor C. West and the proof was that ownership was in West Food Services, Inc., a corporation; and (2) the trial court erred in allowing the jury to separate without consent of the appellant. Appellant also filed an amended motion for new trial, attaching affidavits of appellant and his counsel that appellant did not consent to separation of the jury. Following a hearing, the motion for new trial was denied.

The State’s evidence tended to prove that appellant purchased a 1975 Lincoln Continental Mark IV, which was the same vehicle stolen from Victor C. West in Birmingham. Appellant was in possession of the car when it was located by police.

Victor C. West, a resident of Mississippi, testified that his 1975 silver Lincoln Mark IV had been stolen in Birmingham on April 11, 1976. The car was locked and Mr. West had the key. West produced at trial copies of the original invoice, bill of sale and application for Certificate of Title.

On October 20, 1976, Mr. West identified a 1975 silver Lincoln at Birmingham Wrecker Service as the car stolen from him. The keys to his car, still in his possession, fit every lock except the passenger door lock which was broken. In addition, he identified the Lincoln as his through other physical markings unique to his car.

Mr. West testified that he purchased the car and as president of West Food Services, Inc., signed the Certificate of Title application; that the car had been in his continuous possession or control from the time it was bought until April 11,1976, and that he estimated its value when stolen at $9 — $10,-000. The purchase price was $10,800. He also testified that the Lincoln was primarily driven by his wife in her capacity as corporate Secretary of West Foods Services, Inc., but he also drove it occasionally.

Sergeant Wideman of the Birmingham Police Department, Auto Theft Detail, testified that he located the 1975 Lincoln at appellant’s residence in Birmingham on October 5, 1976. Appellant told the officer the car belonged to him and gave him permission to examine the car.

Sergeant Wideman was qualified as to training in vehicle identification. He then testified that the original vehicle identification number plates on the Lincoln had been removed. The number on the dash was not a true vehicle identification number plate, but a number stamped onto plastic tape which identified the car as a 1974 model. He further testified, over objection, that the motor number on the car found at appellant’s residence was a derivative of the correct vehicle identification number on the Certificate of Title of the stolen Lincoln, thus establishing a positive identification.

The bill of sale and tag receipt produced by appellant bore the same number found on the dash tape and indicated the car was a 1974 Lincoln, purchased by appellant from James Morton. The address for Morton on the bill of sale was a rural route in Sipsey, Alabama. James Morton had not been located and the address was nonexistent. The date of sale was June 18,1976. At the conclusion of the State’s evidence, defendant moved to exclude. The motion was denied.

The classified billing department manager of the Birmingham News testified for appellant that an ad was run on June 17, 1976, by a Mr. Morton to sell a 1974 Continental Mark IV, but no records were kept as payment was made by cash.

Appellant testified in his own behalf that he had called a Mr. Morton in response to the newspaper ad. Mr. Morton brought the car to appellant’s home. Appellant paid him $6,300 in cash for the car. Appellant did not purchase a new tag for the car, but continued to use the tag registered in the name of James Morton.

Two witnesses testified that appellant’s general reputation in the community was good.

On rebuttal, the State introduced testimony that the telephone number in the newspaper ad run by Mr. Morton was that of a public pay station at Wald Park in Vestavia, and that the number had been the same for at least three years.

Appellant’s first contention is that the trial court allowed the jury to separate without his consent, placing upon the State the burden to affirmatively show, upon motion for new trial, that no injury to appellant resulted from the separation. This contention is without merit.

After the jury had been selected and the oath administered in this cause, the following occurred:

“THE COURT: All right, is it agreeable for the jury to separate for the night? “MR. BARNETT: Yes, sir, it is agreeable with the Defendant, Your Honor.
“THE COURT: What about the State? “MR. BLACK: Yes, Your Honor.
“THE COURT: All right, the State had already said so, I just wanted to _ _ all right, they will separate for the night, and I will put it this way, if it suits you, unless there is a request by one of you, we will understand that the agreement, will that be all right to continue, unless you let me know to the contrary.
“MR. BARNETT: Except, Judge, I would like to make one statement. I ran into this problem once before.
“THE COURT: Yeah.
“MR. BARNETT: When the jury begins their deliberation than I would want to withdraw my right for the jury to separate.
“THE COURT: Well _ . you _ . all right.
“MR. BARNETT: Because I had run into that problem one time before and I don’t want to have it ever happen again.
“THE COURT: Yes, all right.
“You can let them back in now if they are ready to come back in.”

The trial court then instructed the jury as follows:

“Ladies and gentlemen, you are about to be excused for today, and you will be able to separate and go home, but be sure to keep in mind the instructions that I gave you; not to talk to anybody or let anybody talk to you about the case. That applies to anybody, don’t talk with anybody about the case or let anybody talk to you about the case, as I say, don’t even talk with one another about the case until the case is submitted to you for your verdict.”

The judgment entry reflects that appellant was present on this occasion. Further, the evidence taken on the motion for new trial shows that defense counsel consulted with the appellant prior to the agreement to separate and that appellant told him to do “whatever he thought best.” According to the record on the hearing it was also the recollection of the prosecuting attorney that when appellant’s counsel stated to the court that separation was “agreeable with the defendant,” appellant nodded his head affirmatively, although appellant testified that he did not recall so nodding in agreement. The evidence presented a question of fact for the trial judge and every presumption will be indulged by this court in favor of the ruling thereon. Binion v. State, 57 Ala.App. 234, 327 So.2d 729.

These circumstances adequately demonstrate that appellant personally consented to the separation of the jury as required by Code of Alabama 1975, Section 12-16-9. That section provides that the court may allow the jury to separate in a felony case without a presumption of prejudice against the accused upon consent of the accused, his counsel and the prosecuting attorney. Appellant having thus consented to the separation, he may not place the State in error for failing to affirmatively show that he was not injured thereby. When consent of the necessary parties is given, under the Statute the burden falls upon the accused to establish prejudice. Wright v. State, 57 Ala.App. 401, 328 So.2d 650.

Appellant relies on the decision of the Alabama Supreme Court in Nelson v. State, 253 Ala. 246, 43 So.2d 892, to support his contention that consent of counsel is insufficient to supply lack of consent by the accused. In Nelson the Court found that the accused did not enter into the agreement nor was he consulted. The facts therein are thus distinguished from those presented here, and error cannot be predicated upon that authority.

Appellant further contends that there was a fatal variance in the indictment and the proof. The indictment alleged personal ownership in Victor C. West. The evidence showed ownership in a corporation, West Food Services, Incorporated, of which Victor C. West is president. The evidence further tended to show however that Victor C. West purchased the automobile and signed the Certificate of Title application as the authorized representative of the corporation, that the car was continuously in his possession or control from the time it was purchased until the time it was stolen in Birmingham, and that the car was in his lawful possession at the time it was stolen.

It can be seen from the evidence that Victor West, President of West Food Services, Inc., and his wife, Secretary of West Food Services, Incorporation, were the only two people authorized to drive the 1975 Lincoln, and that it was in fact bought for their use. The corporation may have been the record owner of title of the vehicle but the useful owners were Victor West and his wife.

It has been held in this state that ownership is properly laid in the bailee or the party in lawful possession of property which is stolen. Eddy v. State, Ala.Cr.App., 353 So.2d 67.

A careful search of the record reflects no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte J. Howard ESTES.
    78-182.
    Supreme Court of Alabama.
    Jan. 26, 1979.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: SANDERS, Chief Justice. CALOGERO, J., DENNIS, Justice,

text:
    STATE of Louisiana v. Daniel W. BURCH and Wrestle, Inc., d/b/a Midtown News.
    No. 62127.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Concurring Opinion Jan. 26, 1979.

      Jack Peebles, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Wrestle, Inc. and its president, Daniel Burch, with two counts of displaying and exhibiting obscene material. LSA — R.S. 14:106. The six-person jury unanimously found Wrestle, Inc. guilty as charged as to one count but acquitted it as to the other. Burch was acquitted on both counts. The trial court sentenced Wrestle, Inc. to pay ^ fine of one thousand dollars, plus court costs. The defendant relies upon four assignments of error for reversal of its conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The defendant argues that the trial court erred in overruling its motion to quash. In that motion, the defendant alleged that a prior adversary judicial hearing on the obscenity of the two magazines in question had not been held as required by LSA — R.S. 14:106F(1). That statute mandates that a prior hearing must be held unless the materials in question “show actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, closeup depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts.” The defendant also contends that the term “ultimate sexual acts” is unconstitutionally vague and overbroad.

In State v. Gambino, La., 362 So.2d 1107 (1978), this Court dealt with the identical issue. In that case, the material at issue was photographs in a magazine entitled “National Screw,” which depicted women engaged in the act of cunnilingus. The Court held that the term “ultimate sexual acts” was not constitutionally vague or overbroad and that the term applied to depictions of cunnilingus. Since the material consisted of photographic depictions of ultimate sexual acts, the Court also held that a prior adversary hearing was not required.

In the instant case, the magazine is “Sex Bizarre” and contains explicit photographs of cunnilingus and fellatio. Applying the rule in State v. Gambino, supra, we hold that the trial court correctly ruled that a prior adversary hearing was unnecessary.

The second contention is that the Bill of Information failed to charge an offense punishable under a valid statute. The defendant argues that Louisiana Code of Criminal Procedure Article 782, permitting conviction by a non-unanimous six-person jury, offends the right to the jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. We disagree. Recently, this Court rejected this contention and upheld the constitutionality of Louisiana’s six-person jury system. State v. Wrestle, Inc., La., 360 So.2d 831 (1978).

Finally, the motion to quash challenged the constitutionality of LSA-R.S. 14:106 under the state constitution. The defendant contends that the terms “contemporary community standards,” “prurient interest,” and “patently offensive” are so indefinite as to render LSA — R.S. 14:106 unconstitutional, because a person of ordinary intelligence could not determine what conduct was governed by the statute. The defendant further argues that these terms do not provide adequate objective criteria, thus delegating to the jury a legislative function. The identical issue was raised in State v. Wrestle, Inc., supra, wherein this Court stated:

“The Louisiana obscenity statute, in the portions quoted in this opinion . clearly complies with the federal constitutional requirements of regulating only specifically defined sexual conduct, limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray this conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2614^15, 37 L.Ed.2d 419 (1973). (Likewise, our statutory guidelines for the trier of fact comply with the federal constitutional standard for factual determination of obscenity, including by the use of contemporary community standards. Id.)
“As Miller notes, compliance of a state statute with these constitutional prerequisites ‘will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.’ 413 U.S. 28, 93 S.Ct. 2616-17. We are satisfied that such notice not only satisfies federal due process but also similar notice requirements of our state constitution.”

The trial court properly overruled the defendant’s motion to quash. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defense counsel filed a motion for a bill of particulars in which he asked the State to furnish the following information:

“Please state whether the material alleged to be obscene appeals to the prurient interest of the average person or to some deviant group. If it is alleged that the material appeals to the prurient interest of some deviant group, please identify such group.”
“Please state what the community standard is within the appropriate community relative to (1) the prurient appeal and (2) the patent offensiveness of the materials alleged to be obscene.”

Both matters relate to issues of fact to be determined by the jury as the trier of facts. It is immaterial whether the magazines appealed solely to a deviant sexual group or to the public at large. Miskin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966). Likewise, the contemporary community standard is an issue at the trial. Neither request was directed to the nature or cause of the charges against the defendants. Instead, these requests would require the State to disclose the details of its evidence. The granting or refusal of a bill of particulars is within the sound discretion of the trial court; the ruling will not be disturbed unless a clear abuse of that discretion is shown. LSA-C.Cr.P. art. 484; State v. Meunier, La., 354 So.2d 535 (1978); State v. Thorton, La., 351 So.2d 480 (1977). We find no abuse of discretion in the present case.

ASSIGNMENT OF ERROR NO. 3

The defendant Burch testified at trial and related the steps he took to ascertain what the community standards were in the metropolitan area of New Orleans. He stated that he discussed the matter with several attorneys and visited ten to fifteen bookstores in Orleans and Jefferson Parishes which sold adult reading material. Burch also testified that he relied upon the ruling of the Orleans Parish Criminal District Court in State v. Baronne Bookstore, District Court Docket No. 359-628 (May 4, 1977), holding that several magazines were not obscene. The defense then introduced those magazines into evidence.

During the State’s cross-examination of Burch, the prosecutor questioned him concerning his reliance on State v. Baronne Bookstore, supra. After the witness reiterated that he relied upon that ruling, the State elicited testimony concerning three other obscenity prosecutions in the Orleans Parish Criminal District Court. The witness recalled one of these prosecutions because Wrestle, Inc. was the defendant in it. Burch denied any knowledge of the other two cases. The State then introduced documents from these proceedings, establishing that the Orleans Parish Criminal District Court had found specific magazines to be obscene. The defense objected to this evidence as irrelevant.

In the presentation of its ease, the defense elicited testimony of a recent proceeding in the Criminal District Court and undertook to show that the community had a very permissive attitude towards sexually explicit material. Burch testified that he believed that the community accepts sexually explicit magazines if children are not depicted in the material, and children are not allowed to purchase them. The reference to State v. Baronne Bookstore, supra, tended to support this conclusion. The State had a right to rebut this testimony. The defendant had initiated the line of inquiry.

The trial court’s determination of relevancy will not be disturbed in the absence of a clear abuse of that court’s discretion. State v. Weems, La., 358 So.2d 285 (1978); State v. Winston, La., 343 So.2d 171 (1977); State v. Gallow, La., 338 So.2d 920 (1976). This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

During his rebuttal argument, the prosecutor stated:

“He tells you about Judge Winsberg’s ruling, but he doesn’t tell you about a ruling against his own corporation that occurred in July, some six weeks before he was arrested on this particular charge, where this Court, this Section of Court, this judge, told him that six publications that he was handling were, in fact, obscene. And he is put on notice thereby to check what he is selling . . . ”

The defense objected, arguing that the prosecutor was imposing upon defendant a duty to inspect the store’s inventory. Relying upon Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), the defendant contends that he has no duty to inspect his stock to ascertain whether the various publications are obscene.

The Smith case dealt with a state statute imposing strict criminal liability on bookstore owners and eliminating scienter, or knowledge, as an element of the crime of selling obscene materials. The United States Supreme Court struck down the statute because of the elimination of scienter, stating:

“We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissive prosecution of a bookseller for carrying an obscene book in stock . [or] whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene, but we consider today only one which goes to the extent of eliminating all mental elements from the crime.”

The State had the burden of establishing scienter. The State need not, however, show the defendant knew the legal status of the materials to be obscene. It is sufficient that the State show the defendant either knew or had reason to know the nature of the materials exhibited for distribution. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Miskin v. New York, supra. The prosecutor properly pointed out that the defendants had prior notice of the court ruling that some materials in their store were obscene.

This assignment of error is without merit.

For the reasons assigned, the conviction and sentence are affirmed.

DIXON, J., dissents.

CALOGERO, J.,

dissents. See dissent in State v. Gambino, 362 So.2d 1107 (1978).

DENNIS, J., concurs and will assign reasons.

DENNIS, Justice,

concurring.

I respectfully concur, being unable to join in the majority opinion because a majority of this Court has again refused to give an authoritative interpretation of the term “ultimate sexual acts” contained in the obscenity statute. However, the photographs in question in the instant case depict conduct which falls within any reasonable definition of ultimate sexual acts, including the definition suggested by my concurring opinion in State v. Gambino, 362 So.2d 1107, 1113 (La.1978).


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Kenneth JOHNSON and Sterling Winfield, Appellants.
    No. 61932.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearings Denied Jan. 26, 1979.

      Raymond A. McGuire, New Orleans, for appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Fred P. Harper, Jr., Asst. Dist. Atty., for appellee.

       Dixon and Calogero, JJ., would grant a rehearing.

   TATE, Justice.

The defendants, Kenneth Johnson and Sterling Winfield, were jointly charged by bill of information with one count each of attempted armed robbery in violation of La.R.S. 14:27, 64, and five counts each of attempted second degree murder in violation of La.R.S. 14:27, 30.1 (1975), all allegedly arising out of a March 13, 1976, attempted armed robbery. After joint trial by jury, both defendants were found guilty on all six counts and received long consecutive sentences on each count.

Upon their appeals, the defendants rely upon twelve assignments of error. The most arguable of these concern (a) an allegedly unjustified restriction of cross-examination (Assignments 4 and 5) and (b) the trial court’s failure to require the state to furnish by a requested bill of particulars which of the two statutory methods of committing attempted murder was charged, if known by the state. (Assignment 12).

For reasons to be stated below, we find the trial court’s rulings in these respects to be erroneous, but we do not find that the errors were of reversible dimensions under the particular facts of the present case.

Limitation of Cross-Examination (Assignments 4 and 5)

Under the facts of this case (set forth in the discussion of Assignments 7 and 11 below), a crucial issue involved the identification by Officer Bullock of the defendant Winfield as being near the scene of the alleged attempted robbery when it occurred. The witness described the individual as wearing a sailor-type hat.

Sustaining state objections, the trial court cut off cross-examination by the defendant’s counsel concerning the witness’s observation of the defendant’s ears and forehead (“what type of forehead did he have?” was asked, after the witness stated he could see the individual’s forehead).

The questions were obviously proper, insofar as counsel was attempting to question the witness’s ability to identify the suspect in what was an almost-fleeting observation at a distance. Limitations upon the important confrontation right of cross-examination, designed to test the veracity and accuracy of a witness’s testimony, are ordinarily regarded as improper and as creating substantial prejudice, in the absence of excessive repetitiousness of questioning or some other specifically recognized principle which is clearly applicable. See, e. g., State v. Senegal, 316 So.2d 124 (La.1975).

Ultimately, and with some hesitation, we do not find to be reversible the clear error presented by this assignment (Assignment 4). By the remainder of the cross-examination, the accused’s counsel was sufficiently able to test the witness’s ability to observe and his memory of his observation, so as not to sustain substantial prejudice by the ruling in question. By further questioning, the accused’s counsel was enabled to bring home to the jury the opportunity to observe and the memory of his observation, or lack of it, by this witness.

Again, by Assignment 5, the defendant’s counsel complains that he was not permitted to ask certain questions of a physician who had treated Johnson after his wounding, and had identified his blood-type as “A”. (A police technician identified the bloodstains in Winfield’s vehicle, the alleged getaway car, as type “A”).

The defense counsel asked this physician if he knew what percentage of the population had type “A” blood. The obvious purpose of this query was to suggest that the blood in Winfield’s vehicle could have come from many other persons than Johnson.

The doctor replied, “I can’t give you an exact percentage.” The attorney then asked, “Do you have any idea?” The trial court cut the attorney off, noting inaccurately that the doctor had said “No”, and further prevented the doctor from replying to a question as to whether, “for instance,” a certain percentage of the population (“about 45%”) had a certain blood-type, with the admonition “Don’t go back on that subject again. I’m warning you.”

Again, we are cited to no authority which would justify the limitation of cross-examination upon this obviously relevant issue.

Ultimately, however, we again do not find reversible error in this assignment (Assignment 5), principally because in the later examination of the police technician the defendant’s counsel was able to develop for the jury’s consideration his point that 40% of the population has blood type “A” and that there is no way of identifying from what person came the “A” type blood on the alleged getaway vehicle interior.

We have ultimately concluded that the arbitrary rulings restricting cross-examination are not reversible under the circumstances of this case. We do not imply that we approve them or that in the future reversal may not be required in order to effectuate the constitutional confrontation right of cross-examination when the accused has been deprived of it, as a substantial violation of his constitutional and statutory rights. Cf. La.C.Cr.P. art. 921.

Denial of Requested Bill of Particulars (Assignment 12)

The defendant was charged with attempted second-degree murder. At the time of the March, 1976 offense, second-degree murder could be committed in two ways: (1) the killing with specific intent; or (2) the killing when the offender was engaged in the perpetration or attempted perpetration of armed robbery (as here) and other serious crimes. La.R.S. 14:30.1, subsections (1) and (2) (as enacted by Act 380 of 1975).

The defendants applied for a bill of particulars to request the state to specify which of the statutory methods of committing the crime was charged, in order to permit them to prepare their defense'. The state refused to furnish this particular, stating that it was not required to specify the subsection(s) under which it was prosecuting. The trial court ruled this answer sufficient.

The court was in error in this ruling. As stated in State v. Nelson, 306 So.2d 745, 747 (1975), “the bill of particulars is designed to permit the accused to obtain further information, in a proper ease, regarding what the State intends to prove, in order that, in fairness, the accused may more properly defend himself.”

The use of a short-form indictment, as in this case, contemplates that the accused may procure details as to the alleged statutory method(s) by which he committed the crime charged through a bill of particulars. Official Revision Comment (b), La.C. Cr.P. art. 465 (authorizing short-form indictments). See also State v. Mason, 305 So.2d 523 (1974) and State v. Clark, 288 So.2d 612, 615-16 (1974) and jurisprudence therein summarized.

Nevertheless, as in Mason, we are not prepared to hold that reversible failure resulted from the state’s rather obstinate refusal to specify that, under the obvious facts and other admissions of the particulars, it was proceeding under both subsections. (Further, the state’s answer might possibly be so construed.) Taken as a whole, the short-form indictments adequately informed the accused of the nature and cause of the prosecution, and the factual basis upon which it was founded, insofar as constitutionally and statutorily required in order to afford the accused a fair opportunity to defend against the charges brought against them.

Other Assignments

The other assignments do not present reversible merit:

Assignment 1: The trial court did not abuse its discretion in regulating the voir dire examination of the prospective jurors, by refusing to permit counsel to inform the prospective jurors regarding the penalties of the offenses charged. See State v. Brent, 347 So.2d 1112 (La.1977) and State v. George, 312 So.2d 860 (La.1975). Cf. State v. Abram, 353 So.2d 1019 (La. 1976) (discretionary penalties).

Assignment 2: The trial court’s refusal to permit the accused to ask a hypothetical question of a witness, while arguably wrong, does not represent a reversible abuse of discretion.

Assignment 3: The police witness’s unsolicited and inadvertent reference to “police photographs, B of I photographs,” which the jury was immediately admonished to disregard, does not require reversal. It was not of a sufficiently prejudicial nature, as clearly involving the accused’s police record or his involvement in non-related crimes, as not to be curable by the prompt admonition. See State v. Jones, 332 So.2d 466 (La.1976); also, State v. Hardy, 344 So.2d 1018 (La.1977).

Assignment 6: The prosecutor’s rebuttal comment did not, in context, constitute an indirect comment upon the failure of the accused to take the stand.

Assignments 7 and 11: The defendants forcefully contend that there was no evidence of an attempted armed robbery, nor (consequently) of attempted murders .in the perpetration of such an offense. Accordingly, they suggest their motions for a new trial should be granted.

The factual evidence shows:

At about 7:30 p. m., near closing time of a meat market, two armed men walked up to two employees cleaning up, grabbed one of them, and shot both of them. Previously, the owner and employees of the meat market had noticed four men hanging around the area, acting suspiciously, and had informed the police.

The police detectives had therefore earlier come to the scene in an unmarked car and conducted a surveillance. Prior to the incident described above, they had noted an automobile (later identified as the defendant Winfield’s) moving slowly, with two men in the back peering about the neighborhood. One of the watching detectives radioed a request that other police officers in the vicinity watch for the vehicle. Shortly before the shooting incident, two officers cruising in the neighborhood, so alerted, noted the vehicle parked, with motor running, around the corner a block away; with a man they later identified as the defendant Winfield standing by the driver’s side of the car.

The police detectives at the scene identified the defendant Johnson as one of the individuals who shot one of the employees. (The other, Porter, was killed in the subsequent shootout, see below.)

After the shooting of the employees, the detectives yelled, the two individuals (Porter and Johnson) commenced shooting at the officers, and in the shootout Johnson was wounded and Porter killed. Johnson and the other individuals escaped from the scene. The police, who had noted the license number of the vehicle, later arrested Winfield, who denied knowledge of the robbery or that he knew that blood was found in the interior of his vehicle (which he had parked away from his home).

The defendants principally contend that, because Porter and Johnson (the armed individuals who approached and shot the store employees) did not ask for money, there is no evidence that an armed robbery was intended. The defendant Winfield additionally contends that there is no evidence connecting him with the criminal intent of Porter and Johnson.

Under the evidence presented to the jury, it could reasonably infer that beyond a reasonable doubt Porter, Johnson, and Winfield were in a group which intended through Porter and Johnson to rob the store, with Winfield through his vehicle to provide the means of escaping from the scene after the intended robbery. Winfield, as a principal in the-attempted armed robbery, La.R.S. 14:24, is thus criminally responsible for any killing which resulted from its attempted perpetration, La.R.S. 14:30.1(2) (1975).

We find no merit to these assignments of error.

Assignments 8 and 9: No abuse of discretion is shown by the trial court’s failure to sever the joint trial of these two defendants nor of these five interrelated charges arising out of the same incident of attempted robbery.

Assignment 10: Article 1, Section 14, Louisiana Constitution of 1974 provides that all crimes punishable by life imprisonment must be charged by grand jury indictment. By this assignment, the defendants contend that the trial court should have sustained their motions to quash the bills of information filed by the prosecutor, because the offenses so charged in cumulation provided a penalty equal to or greater than the natural lifetimes of the two accuseds.

No crime charged was punishable by life imprisonment. The trial court therefore properly overruled the motions to quash. The mere fact that a sentence which may be imposed may be greater than the accused’s life expectancy does not mandate charge by grand jury indictment, which is required only for crimes in which the statutory penalty is life imprisonment or death. State v. Qualls, 353 So.2d 978 (La.1977); State v. Williams, 341 So.2d 370 (La.1976).

Decree

Finding no merit to the assignments of error, we affirm the convictions and sentences.

AFFIRMED.

      . As the decisions note, the state is not required to specify which of the statutory methods has been used to commit the crime or to choose between alternative methods equally applicable under the facts of the case. See also Comment, 12 La.L.Rev. 457, 460-62 (1952). The state should, however, so respond to the notice for the particulars, rather than refusing to answer it. Here, both subsections of the act were apparently applicable to the defendant Johnson (and possibly also to the defendant Winfield if the proof to be educed showed (it did not) that he was one of the would-be robbers who engaged in the gunfight). Insofar as the evidence educed at the trial, however, only subsection (2) applied to him; and perhaps the state should have so informecj him, if the facts developed at the trial were known to it at the time of its response to the application for the bill of particulars.