author: HARRIS, Presiding Judge.

text:
    Freddie Lee PATE v. STATE.
    1 Div. 144.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      Thomas E. Harrison, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Michael E. McMaken, Sp. Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Grand Jury of Mobile County on separate indictments charging him with the rape of two girls on the same night and at the same place. The cases were consolidated for trial and on appeal. Prior to arraignment he was found to be indigent and the court appointed counsel to represent him. At arraignment, in the presence of appointed counsel, he waived the reading of the indictments, and pleaded not guilty. The jury returned separate verdicts finding appellant guilty as charged in the indictments and he was separately sentenced to twelve years in the penitentiary. The trial judge specifically ordered that the sentences were to run consecutively. After sentences were imposed appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on this appeal.

At the conclusion of the State’s evidence appellant made a motion to exclude the evidence on the ground that the State failed to make out a prima facie case against appellant. This motion raised the sufficiency of the evidence. Appellant filed a written request for the affirmative charge as to each victim of the alleged rapes. The sufficiency of the evidence was also raised in a motion for a new trial.

The evidence presented by the State and on behalf of appellant was in sharp conflict and only a jury could unravel the extremely conflicting evidence and arrive at a verdict.

For the purposes of this opinion the victims will be referred to as Kim and Jean. Kim testified that she was eighteen years of age and lived with her parents in Grand Bay, in Mobile County, Alabama. Her parents were engaged in a farming operation and she worked on the farm when she was needed. She had known Jean for. about four years. They were in high school together. On the seventh day of May, 1979, they were out together in Jean’s automobile to celebrate Kim’s birthday. They went to a shopping center first and then to a steak house to eat. They had planned to go to a movie after leaving the steak house but the time was 9:30 p. m. and it was too late to see a movie. Jean suggested that they go to a local bar and dance for a while and Kim agreed. Jean suggested the Fireside Lounge in downtown Mobile and they arrived at this lounge around 10:30 that night. Kim had heard this was a “gay” bar but she had not been there before this occasion. They got a table and talked for a while. They did not drink alcoholic beverages in any form or fashion but danced several times. A “gay” young woman came to their table and asked if she could sit with them and they agreed. This woman was named Rose and she was drinking beer and asking other patrons to buy her beer. It was getting late and Kim and Jean decided it was time for them to go home. They got up to leave and Rose, though uninvited, followed them out the front door of the lounge to the parking lot where Jean had parked her car. When they got to the car Jean walked to the passenger’s side to unlock the door for Kim.

Three men were standing around the car parked next to Jean’s. They turned out to be appellant, Ray Pugh and Paul Harrison. Suddenly and without warning these men grabbed Kim and Jean and forced them into the back seat of another automobile. The girl named Rose knew appellant and she voluntarily got in the back seat of the car with appellant and the other girls. Ray Pugh and Paul Harrison got in the front seat. The car belonged to Paul Harrison’s father and Paul drove the car. They drove around for a long period of time and finally the motor, either accidentally or by design, went dead and the men opened the car door and let Rose out. Then Paul cranked the motor and drove off leaving Rose on the roadway. Kim and Jean protested and told the men to turn around and pick up Rose. The men responded by saying they were just playing a joke on Rose and they would return and get her in a few minutes. Paul drove the car out into the country and stopped in a woody and secluded spot.

Kim and Jean got out of the car and tried to stay close to each other waiting for an opportunity to run. They were restrained by the men from running and were told to calm down, that everything would be all right, that this had happened before, and all they had to do was calm down. According to Kim appellant kept hitting Jean in the face and then pushed her into the bushes. One of the other men had Kim by the neck and shoulders and pulled her further away from the place where appellant had Jean in the bushes. He kept telling her to calm down and not make appellant mad. Kim testified that the man holding her pushed her down, removed her panty hose and had sexual intercourse with her against her will; that after he finished appellant then came to her and forced her to have sexual intercourse with him against her will.

After the crime was committed they forced Kim and Jean back into the car and started driving in a wild and reckless manner. She stated that during this ride appellant put a knife to her throat and said, “You don’t think we can let you go now, do you?” and the men just all laughed. Finally, appellant and the other two men released Kim and Jean on a dirt road near a church. They walked about a block from the church to a residence and banged frantically until a man opened the door. The man was named L. B. Loper. They asked him to call them a cab to take them back to town. The time was around 3:00 a. m. and Mr. Loper told them they could not get a cab that early in the morning and he called the Sheriff’s Department. When the officers arrived the girls told them they had been raped and they were taken to the University of South Alabama Medical Center and were examined by a physician. The officers took the girls back to the scene of the rape where they recovered Jean’s broken glasses and Kim’s panty hose.

On cross-examination Kim testified that it was Jean’s idea to go to the Fireside Lounge and although she had never been there before she knew it was a gay bar. She stated that they arrived at the bar at about 10:30 on the night of May 7, 1979, and that neither had any alcoholic drinks; that she had a coke and Jean drank only water. They danced several times and after a while a girl named Rose invited herself to join them at their table; that Rose was drinking beer and trying to get people to buy her beer. After about an hour and a half Kim and Jean decided to leave and Rose got up to leave with them.

Kim further testified that she did not see appellant until they walked out to get in Jean’s car and did not see his face clearly until she was forced into the other car. This other car was an old blue Nova. Appellant and the three girls were in the back seat and the other two men were in the front seat. The car stalled and Rose got out to fix it and the men drove away leaving Rose.

After they arrived at the dump everyone got out and appellant repeatedly struck Jean in the face. One of the other men forced Kim on the ground and pinned her shoulders to the ground. He then removed her underclothes and raped her.

Jean testified that she was twenty-one years of age and was a college student in Troy, Alabama. On May 7, 1979, she and Kim went to the Fireside Lounge in Mobile after eating supper at a steak house. Jean had been going to the Fireside for about a year and a half and she knew it was known as a gay bar. She and Kim danced for several hours and they met a girl who called herself “Little Rose.” When they left the lounge Jean was grabbed from behind and pulled into a car. In her words: “I went to unlock the car and there was a scuffle behind me and before I could turn around I was grabbed and pulled backwards into the car.” That Kim and Rose were already in the car when she was forced into it. She stated the driver of the car went through the old tunnel and went through an industrial area; that a short time later Rose got out of the car when it stalled. Before Rose got out she heard her say, “Freddie, you know how mad I can get. Don’t pull this_” The car stopped in an isolated area that was woody.

Before she and Kim got out she told Kim to take off her shoes and when she took them off one of the men grabbed them and threw them into the woods. She said she was wanting to run and Kim was wearing heels. She further testified that two of the men held Kim while appellant threw her on the ground and jumped on her and forced her to have sexual intercourse with him; that he slapped her face several times and hit her with his fist real hard; that one of the men kept telling them they might as well give up because they were not the first; that this had happened before and that “we didn’t want to make appellant mad,” because “you don’t know what he could do.” Jean had recently had an operation on her face for an acne condition called “dermabrasion.” The operation was performed by a specialist in skin treatment, and her face was still red and bruised. This was where appellant struck her. After appellant had sexual intercourse with her then one of the other two men did the same thing. When they got ready to leave the rape scene appellant threw Jean’s glasses in the bushes. Jean stated that appellant was the first one to have sexual intercourse with her and she made a positive in-court identification of appellant. After the rapes were completed and while they were riding around appellant held a knife to Kim’s throat and Jean could not watch any more because she thought they were going to be killed.

She further testified that after she was raped she found her glasses but appellant took them from her and threw them back in the bushes. She said when they were finally released they went to the nearest house for help. She banged on the door and a gentleman came to the door and let them in the house. Mr. Loper lived there and he called the Sheriff’s Department and when the Sheriff’s Department came to the house they carried the girls to the South Alabama Medical Center where they were examined by a doctor.

On cross-examination Jean testified that she thought it was a joke at first when she was pulled into the car because Rose kept calling the men by their names. She admitted that she had used marijuana once or twice a week for approximately a year and a half. She stated she had never been to the Fireside Lounge with Kim before that night and that it was her idea that they go and dance a while before going home. She further testified that she had never met or seen Rose before the night of May 7, 1979; that before Rose was put out of the car that night she was cursing a lot.

Jean further testified that appellant kept throwing her around until she just couldn’t fight it any more; that he pulled on her clothes and tried to pull them off but he did not tear them; that he took her pants off and had sexual intercourse with her while the other two men were holding Kim about five feet away.

Mr. Larry W. Tillman testified that he was a Detective Sergeant with the Mobile County Sheriff’s Department and had been for fourteen years; that he was the Chief Detective in charge of this rape case and that he went to the crime scene with the victims; that it took them about two hours to locate the place and the place was located in the County of Mobile, Alabama; that he searched the scene and found a pair of panty hose and a pair of prescription glasses which were identified by the victims. These items were introduced into evidence after defense counsel waived the chain of custody on these two items of evidence. This witness was asked if the victims picked out appellant from a photographic array and defense counsel stated, “There is no problem with the identification of the defendant.”

The next witness called by the State was Ms. Fay Wainwright. She stated she was a Deputy Sheriff with the Mobile Sheriff’s Department for twenty-one years and that she investigated all rape cases. In the early morning hours of May 8, 1979, she interviewed the rape victims at the University of South Alabama Medical Center. She stated they were very upset and distressed, very angry at what happened to them.

State’s Exhibit 2 was a written document and was read to the Court and jury. We will continue to refer to the rape victims as Kim and Jean: “Stipulation: It is hereby stipulated between the parties that the following would be the testimony of Doctor Brockway who examined Jean and Kim at the USA Medical Center on May 9,1979, at 4:35 a. m. The testimony of Doctor Brock-way. This is to the regard of the physical condition. Jean — small tender area on side of neck, one breast has red tender area, one arm is tender. No visible bruises. Both cheeks are deeply abraded and red. This is the result of a recent surgical procedure for the treatment of acne called dermabrasion. The vagina showed redness and one or two blood blisters. Ten to twenty sperm were found, three or four were alive. Kim — a red mark on neck, it appears to be a suck mark — no visible bruises. Vagina, no lacerations or tears. Two spots of blood, no active bleeding. Some sperm found, some of which were alive. Demeanor, they were not calm but neither were they hysterical. They appeared upset and somewhat angry. The condition of the girls’ vaginas could have been caused by rape but just as equally could have been caused by many other things, including vaginis, a fall where the vagina is struck by an object, tight blue jeans, prolonged bicycle riding, etc. He has seen many rape victims and often as not the vagina is not torn or lacerated. On the whole examination he is unable to state conclusively whether or not a rape occurred, although recent sexual intercourse is certain. It is impossible to determine if the red areas and tender areas are the result of blows or what. It may or may not be indicative to forcible rape.”

With this stipulation the State rested its case against appellant and his counsel made a motion to exclude on the grounds the State had not made out a prima facie case. The motion was denied and appellant called his first witness, J. B. Loper.

Mr. Loper testified that he lived on Route 2, Wilmer, Alabama, and around 3:30 on the morning of May 8, 1979, two young ladies came to his house. He was awakened by the ringing of the door bell and loud pounding on the front door. He let the ladies inside his house and they asked him to call a cab to take them to their car parked on Conti Street in Mobile. He told them he doubted if they could get a cab at that hour of the morning and suggested that the Sheriff’s Department should be called. Mr. Loper called the Sheriff’s Office. The girls appeared to be scared, quiet, upset and angry. They told him they had been put out of a car. After the Sheriff’s Department arrived they questioned the girls for over an hour. He was in another room and he heard the girls tell the officers they had been raped, and this statement was made about five minutes after the officers arrived.

On cross-examination he stated that the clothes of one of the girls appeared to be messed up and she excused herself to go to the bathroom to straighten her clothes. The girls went to the window and looked out several times and said they were afraid “they” might come back.

Ms. Rosalee Andrews, better known as “Little Rose,” was called as a witness for the defense. She stated she lived at 915, Highway 43, Saraland, Alabama, but had been employed in Tuscaloosa for a period of four months prior to this trial. She testified she met Kim and Jean in the Fireside Lounge on the night of May 7, 1979. She claimed she went to the table where the girls were sitting and they invited her to sit with them. She was drinking beer. While they were sitting at the table appellant came in and ordered three beers to go. After getting the beer he started to leave and saw her and came to the table and said, “Rose, would you like to go outside and smoke a joint?” Rose said “yes” and she left, followed by Kim and Jean who asked Rose if appellant minded their coming. Appellant said he did not care. They got in the car and started driving around with the three girls and appellant in the back seat and two men in the front seat. They drove for about forty-five minutes and no marijuana was produced and Rose asked to be taken back to the Fireside. The car stalled and Rose got out, raised the hood and shook the battery cables. The car was cranked and the car was driven away, leaving Rose.

Rose stated that both of the girls were drinking alcoholic beverages while they were at the Fireside. She said no one was forced into the car and they did not request to leave the car or be taken anywhere.

On cross-examination Rose testified that she and appellant had been friends for several years and that she came from Tuscaloosa to testify in his behalf. She and appellant had smoked marijuana together before and had also drunk alcoholic beverages together. She was not subpoenaed and was not paid her expenses. She voluntarily came to court to help appellant. She stated she did not know what happened after she was abandoned on the road that night. She freely admitted that she was “gay."

Appellant testified that he was divorced, 25 years of age, lived with his parents at 317 South Baldwin Street, Mobile, Alabama, and worked for his in-laws as a carpenter; that five years previously he pleaded guilty to the sale of one pound of marijuana and received a two-year sentence, served eight months and made parole.

From the record:

“Q. And made parole, all right. Now, since the time you made parole, have you ever been convicted of any other crime?
“A. No, sir, I haven’t.
“Q. Have you been in any trouble other than this particular incident right here?
“A. No, sir.”

He stated he was with two friends on the night of May 7, 1979, Ray Pugh and Paul Harrison, and they were just riding around drinking beer; they chipped in and bought a case of beer and he drank six or seven bottles while it was still cold. When the beer got hot he told his companions to stop at the Fireside Lounge and he would pick up three bottles of cold beer. Appellant bought three beers and as he started to leave he saw Rose whom he had known since high school. He had never dated her and never really hung around with her but had seen her on different occasions. They had been good friends in high school and since. He went to the table where Rose was sitting and asked her if she wanted to go outside and smoke a joint and she said, “yeah.” That Rose, Kim and Jean followed him and his friends out of the lounge.

Appellant stated that everyone got in the car and they left to buy some marijuana. They could not find any marijuana and appellant said he had some at his house and Paul Harrison drove the car to appellant’s home and he soon returned to the car and announced he couldn’t find his marijuana and said he must have smoked it. They continued to drive around and the car stopped and appellant and his companions got out to go to the bathroom. While they were outside Ray or Paul said, “Well, look now, I know this Rose girl. You know she is nothing but a dike (sic). We don’t want her in the car. We want to try to be with these girls.” The three men got back in the car and drove until they came to a stop sign and the motor went dead. Rose got out and fixed it and they drove off and left her in the road. They stopped in an alley and everyone got out and appellant and Jean started “making out.” Jean did not try to get away but said it was time to go home. The men discussed the situation and Paul said that unless the girls made love to them they were not going to take them home. Appellant stated the girls were angry but they said, “If we make love with y’all, are y’all going to take us back to our car?” Ray or Paul said, “All right.”

Appellant further stated that Paul and Kim walked down the path away from him and Jean; that Kim did not resist or protest and that he and Jean went to a grassy area when Jean removed her underclothes and they had sexual intercourse. Then they dressed and returned to the car. Appellant said he did not have intercourse with Kim but Paul Harrison did have sexual intercourse with Jean. They all got back in the car and left; that no one held a knife to the girls’ throats and he never saw a knife; that after driving for a while Paul stopped the car and ordered the girls to get out and they complied with that order. Appellant denied slapping, striking or hitting Jean and he denied forcing either one of the girls to have sex with him that night.

On cross-examination appellant admitted that he had been in trouble since he was convicted for selling marijuana, but “not serious trouble.” He admitted confessing to the crime of fraudulent use of a credit card, having been convicted of D.W.I., and serving three months in jail. Finally, appellant stated that he went along with Paul when Paul said they would not take the girls home unless the girls had sex with them. Appellant stated, “They didn’t say they didn’t want to have sex. They said that all they wanted us to do was to take us (sic) home, they didn’t want no part of us any more.”

Appellant contends that reversible error was committed by the trial court in restricting his voir dire examination of the venire. Counsel stated:

“Ladies and gentlemen of the jury, the charges against this young man are rape, probably one of the more heinous of crimes that a person can commit. At this stage there are charges. All it is is an acquisition (sic). To prove that charge testimony is going to be taken from the stand. By the nature of the charge some of the testimony is going to be rather unpleasant. You normal, sociable people don’t normally talk about such things in their conversations, especially between members of the opposite sex. If anyone here would be offended or feel like they would be offended and rather not — just rather serve on a jury involving a rape case, I would ask that you stand and identify yourself.”

At this point the trial judge stated: “All right, you don’t have to answer that question, ladies and gentlemen,” whereupon appellant’s counsel noted an exception.

It is settled by the case law of this state that the extent and scope of voir dire examination of prospective jurors are within the sound discretion of the trial court. Much must be left to the sound discretion of the trial court as to the nature, variety, and extent of the questions that should be asked prospective jurors by the parties or their counsel in the process of selecting the jury to try the case. Peoples v. State, Ala.Cr.App., 375 So.2d 561; Radford v. State, Ala.Cr.App., 348 So.2d 880; Slinker v. State, Ala.Cr.App., 344 So.2d 1264.

Most, if not all, of the old cases cited Title 30, Section 52, 1940 Code of Alabama, which provided:

“In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.”

In Clark v. State, 294 Ala. 493, 318 So.2d 822, the Supreme Court said:

“This Court has on occasion said that ‘the clear purpose of the statute is to limit the inquiry to matters that might probably bias the jurors in considering and determining the case ... Nevertheless, there are many cases in which this court has said that the right given by the statute allows a ‘liberal’ inquiry; ... a ‘wide latitude,’ and that ‘the right of inquiry under the statute is a broad right just so it is not exercised in bad faith or merely designed to prejudice the case.’ ”

The Court in Clark, supra, went on to hold that under this section the right to question jurors remains within the sound discretion of the trial court.

In Peoples v. State, supra, Judge Leigh M. Clark, in his usual masterful and illuminating style of writing opinions for this court, stated:

“It appears that there is now no statutory authority that replaces the quoted section of the 1923 Code and the 1940 Code as it expressly pertained to ‘criminal’ as well as ‘civil’ cases. As to trials in civil cases, the mentioned section of the 1923 Code and the 1940 Code, respectively, is largely superseded, but somewhat qualified, by Rule 47(a) of Alabama Rules of Civil Procedure.
“We do not attempt to explain the reason for the absence at this time of statutory authority on the subject of the sections mentioned of the previous Codes pertaining to the right of parties in criminal cases to examine prospective jurors for information that would tend to aid the parties in the process of selecting the jury to try the case. However, in noting this absence of the former codal provision, we do not think that a different decision from that which we now make would be appropriate even if the content of the sections of the previous Codes as quoted above were in the 1975 Code.
“In considering the quoted section of the Code then applicable, it was stated in Rose v. Magro, 220 Ala. 120, 124 So. 296, 299 (1929):
“ ‘... The statute (section 8662, Code) was not intended to take away the discretion of the trial court in such a matter.’ ”

We find no abuse of discretion by the trial court in instructing the jury not to answer the question posed by appellant’s counsel on the voir dire examination of the prospective jurors. The mere possibility that a juror might find testimony in a rape prosecution disquieting and distasteful is not such bias as would affect the verdict of the jury in determining the case.

Appellant contends the trial court erred to a reversal in refusing to give the jury requested charges 8, 9, and 10. These charges are as follows:

“Charge no. 8. The Court charges the jury that if you find from the evidence in this case that the alleged victim is of a bad character then the jury may look to this bad character in determining what credence, if any, you will give to this alleged victim’s testimony.”
“Charge no. 9. The Court charges the jury that if the evidence convinces you that the alleged victim is a person of bad character, and unworthy of belief, then you may disregard the alleged victim’s testimony altogether.”
“Charge no. 10. The Court charges the jury that if from all the evidence in this case, after you have considered same, you are satisfied that any witness in this case has proven to be of bad character, you may look to that fact in saying how much weight you will give to the testimony of such witness.”

We note at the outset that there is absolutely no testimony that the rape victims were persons of bad character or that they had a bad reputation in the community. The refused charges are abstract and misleading and for that reason were properly refused.

The refused charges were apparently grounded on the fact that one of the rape victims admitted that she smoked marijuana once or twice a week for a year and a half. The other rape victim stated that she had tried to smoke marijuana only once.

Courts are not blind to what others know. We judicially know that in recent years the use of marijuana has become prevalent and is easily obtainable throughout the country. It is illegal to possess this drug for any purpose. It is condemned by statute.

We cannot brand a person one of “bad character” simply because that person smokes marijuana on occasions but we do not condone even the personal use of marijuana on a casual basis or on any basis. In our opinion the trial court did not err in refusing to give the requested charges set out above.

The victims in the instant case signed statements relating the facts which gave rise to this prosecution. Counsel for appellant contends that he was entitled to read and inspect such statements. These statements were not used by the victims to refresh their recollections while they were on the witness stand. The trial court correctly ruled that defense counsel was not entitled to inspect and use the statements. Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, certiorari denied, 290 Ala. 363, 276 So.2d 640; Slinker v. State, Ala.Cr.App., 344 So.2d 1264.

Finally, appellant complains that it was error to allow the State to question him about other crimes when appellant testified on direct examination that he had not been in any other trouble since he was convicted on a charge of selling marijuana for which he was sentenced to two years in the penitentiary.

On cross-examination appellant was asked if he had been convicted for D.W.I. and had confessed to the fraudulent use of a credit card. Over objection he was allowed to testify that he served three months in the County Jail on the D.W.I. conviction and the credit card case was still pending against him although he had confessed to this offense.

In Leonard v. State, Ala.Cr.App., 369 So.2d 873, writ denied, Ala., 369 So.2d 877, this court held:

“Of course, it is a general principle that, where a matter has been gone into by one party to a cause, the other party has a right to explain away anything, if he can, that may have been brought out to his detriment.”

When appellant testified on direct examination that he had not been in any other trouble since his marijuana conviction he “opened the door” for the State to adduce evidence that his testimony was untrue.

Where the evidence raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the State’s evidence, refusal to give the affirmative charge and overruling motion for a new trial, do not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte Freddie Lee PATE (In re: Freddie Lee Pate v. State of Alabama).
    80-32.
    Supreme Court of Alabama.
    May 8, 1981.
    Thomas E. Harrison and Richard D. Horne of Hess, Atchison & Horne, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for respondent.
   MADDOX, Justice.

We granted certiorari to review the question whether or when the defendant in a criminal case is entitled to inspection of a statement of a prosecution witness for the purpose of cross-examining or impeaching the witness.

Specifically involved are statements authenticated by rape victims.

The Court of Criminal Appeals, 415 So.2d 1131, found that “[t]hese statements were not used by the victims to refresh their recollections while they were on the witness stand,” and concluded that “[t]he trial court correctly ruled that defense counsel was not entitled to inspect and use the statements.” The court cited Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973), and Slinker v. State, 344 So.2d 1264 (Ala.Cr.App.1977), in support of its conclusion.

We reverse and remand with directions.

The facts of the case are sufficiently stated in the opinion of the Court of Criminal Appeals, and we do not need to restate them in order to decide the question posed, except to state that petitioner was convicted of the rape of two young women, and he defended against the charges on the ground that the two victims had consented.

The discovery question was presented on the first day of the trial when defense counsel inquired of the prosecutrixes if they had made a statement to the police about the facts of the case. Both had.

Petitioner contends that the documents here involved are not the State’s “work product,” and he asks this Court to look at the language in Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973), wherein the Court of Criminal Appeals stated:

The first requisite necessary to secure for inspection production of a “statement” of a witness for use on cross examination of the witness is that the statement must be one in writing prepared by him or prepared by another at his instance and signed by him or otherwise authenticated by him. In the instant case there was nothing to indicate by query of the witness by the defense or otherwise that the witness had given to any officer a written statement signed or authenticated by her. There was not laid in the evidence any showing that any statement made by the witness to officers before trial differed in any respect from statements made to the jury during trial. See Bellew v. State of Mississippi, 238 Miss. 734, 106 So.2d 146, cited with approval in the Mabry [v. State, 40 Ala.App. 129, 110 So.2d 250] case, supra. Neither was there any such showing of inconsistency in testimony given by the witness at a preliminary hearing previously held and the testimony given by her on the trial before the jury. There is no showing that the statement requested, if any, was of such nature that without it the defendant’s trial would be fundamentally unfair. The production for inspection of any such statement as above defined lies within the sound discretion of the court and we find no abuse of that discretion in the ruling here made. See Annotation, Right of Defendant in Criminal Case to Inspection of Statement of Prosecution’s Witness for Purpose of Cross Examination or Impeachment, 7 A.L.R.3d, pp. 181, 217, 219, 213 citing the Mabry case, supra, and the authorities therein noted.
We heartily recommend the in camera procedure set out in Palermo v. United States, 360 U.S. 343, at p. 354, 79 S.Ct. 1217 [at p. 1225], 3 L.Ed.2d 1287, i.e., when it is doubtful whether there exists a “statement” as defined in this opinion, then the trial judge should confer with counsel, the defendant being present, apart from the jury to reach a determination as to the existence of any such alleged statement. The proceedings should be taken by the official court reporter to be made as part of the record.

The State, in its brief, characterizes the documents sought to be produced as a “police officer’s memorandum,” which was a part of the State’s “work product.”

In order to decide the controlling question, we must analyze the nature of the statements and the applicable law governing the discovery of such statements.

As we understand the law, whether production of a particular document can be compelled depends on (1) the nature of the document, that is, whether it is the witness’s own words, and, (2) the time when production is sought, that is, before trial, or during the trial after the witness has testified.

The “statements” in this case were in writing, and each witness testified that they signed the statements, thereby authenticating them; therefore, we conclude that the statements were in the “witness’s own words,” as those terms are used in the cases. Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).

As to whether the defendant in a criminal case is entitled to inspect a prosecution witness’s statement for purposes of cross-examination or impeachment after the witness has testified on direct examination, the state courts are divided. Anno. Discovery—Impeachment of Witness, 7 A.L.R.3d 181.

Insofar as we can determine this Court has not squarely held that where a prosecution witness has testified on direct examination in the trial of the case, the defendant is not entitled to inspection of a prior statement of the witness for the purpose of cross-examining or impeaching him. The Court of Criminal Appeals has addressed the question in Gillogly v. State, 55 Ala.App. 230, 314 So.2d 304 (1975), a case involving a fact situation which is strikingly similar to the fact situation here presented.

In Giliogly, the prosecution’s main witness was an accomplice of the accused. During the cross-examination of that witness, the following occurred:

Q * * * Have you ever signed a statement as to what you have just testified?
A Yes sir.
Q You have?
A Yes.
Q And who was the Officer that copied it down?
A I don’t know. I don’t remember who copied it down. Some lady.
Q Some lady? And when was this?
A This was awhile back.
Q Uh huh. How long ago?
A I don’t remember the date.
Q Well, how long ago? You said some while back. Two months ago, three months ago, what month was it?
A It was in January.
Q In January. So, in January your conscience told you to testify in this case, is that right?
A Yes, sir.
Q Yes, sir. And not when you got the subpoena like you just told this jury?
A You asked me did I — when did I decide to — I said my conscience told me to do it all along. I decided to do it when this subpoena came. In other words, what I am saying is my final decision is in.
Q All right. At the time you gave a statement in January, tell us the names of the law enforcement officers that were there?
A Ralph Jordan.
Q Uh huh.
A Obie Singletary; one of the Florida men.
Q One of the Florida men?
A The D.A., Mr. Graddick.
Q Uh huh. And whom else?
A And Captain Kater Williams.
Q And do you have a copy of that statement?
A Do I have a copy of it?
Q Yes, sir.
A No, sir.
MR. MARSAL: All right. Now, I now ask the Court to ask the district attorney’s office to furnish me with a copy of that statement.
MR. GRADDICK: Judge, I object to it. It’s a Court’s investigation. It’s privileged communication between the police officer and the district attorney; it’s part of our work product, and it may involve some other crime that may have been committed in the investigation, and no proper predicate has been laid in order to produce that statement.
MR. MARSAL: If the Court pleases, it’s elementary that I have a copy of any statement that any witness has made.

In Gillogly, the Court of Criminal Appeals found that it was error for the trial court to have denied the defendant’s motion, citing Husch v. State, 211 Ala. 274, 100 So. 321 (1924), Strange v. State, 43 Ala.App. 599, 197 So.2d 437 (1966), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This Court denied certiorari. Ex parte State (In re: State v. Gillogly), 294 Ala. 200, 314 So.2d 306 (1976).

We conclude that the rule adopted in Gillogly is probably the majority rule. 7 A.L.R.3d 181.

The State, in its brief, in effect, claims Gillogly is wrong and cites Thigpen v. State, 355 So.2d 392 (Ala.Cr.App.), aff’d, 355 So.2d 400 (Ala.1977), a death case, for the proposition that the trial court did not err in not requiring the State to produce the prior statements of the two prosecution witnesses. In Thigpen, however, the motion by the defendant to require the prosecution to produce the statements was made prior to trial and the request in Thigpen was much broader, in that the defendant asked for the statements of any and all witnesses taken by the investigative authorities. The rule stated in Thigpen is consistent with the general rule that an accused is not entitled to discover statements of government witnesses before trial.

The rule of discovery is different where a prosecution witness has testified on direct examination in the trial of the case.

In such cases, the defendant, upon laying a proper predicate, is entitled to have the Court, at least, conduct an in camera inspection as outlined in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The trial court could determine initially (1) whether the statement made by the witness before trial differed in any respects from statements made to the jury during trial, and (2) whether the statement requested was of such a nature that without it the defendant’s trial would be fundamentally unfair. Cooks, supra.

The production for inspection of any statement, of course, would lie within the sound discretion of the trial judge.

In the instant case, it is apparent that the trial court did not follow the guidelines suggested in Cooks, supra; therefore, the cause should be remanded to the trial court for further proceedings.

Because the Court of Criminal Appeals has concluded, as a matter of law, that the defendant was not entitled to inspect the statements, the judgment of that court is due to be reversed, but that court is not ordered to reverse the conviction and remand the cause to the trial court for a new trial. We deem an alternate procedure would comport with due process of law.

We direct the Court of Criminal Appeals to remand the cause to the trial court for the purpose of conducting a hearing as suggested in Palermo v. United States to determine whether the statements made by the witnesses before trial differed in any respect from the statements made by the witnesses to the jury during the trial and, whether the statements requested were of such a nature that without them the defendant’s trial was fundamentally unfair.

The Court of Criminal Appeals shall direct the trial court to have a court reporter transcribe the proceedings which are held to make the determination above ordered. The Court of Criminal Appeals shall direct the trial court, if it finds that the defendant was entitled to inspect and use the statements, to order a new trial. The Court of Criminal Appeals shall direct the trial court, if it finds adverse to the defendant, to direct the clerk of the trial court to forward a record of its proceedings to the Court of Criminal Appeals to allow the Court of Criminal Appeals to review the discretion exercised by the trial court.

REVERSED AND REMANDED, WITH DIRECTIONS.

All the Justices concur.

      . For a better understanding of the facts, we have gone to the record to determine how the issue was raised and the predicate laid by the defendant. The following is shown in the record:
      Q Did you make a statement to the police at the time?
      A Yes, I believe so.
      Q Did they write it out?
      A They were writing a bunch of things down.
      Q Okay. Did you read over that statement?
      A I signed some statements later on at the hospital.
      Q At the hospital that night?
      A I believe so.
      Q Who gave you those statements?
      A It was either Mrs. Wainright or Mr. Tillman.
      Q One of the police officers? Was it one of the police officers you were talking to at Mr. Loper’s house?
      A 1 don’t remember who gave me the statement.
      Q Was it a police officer?
      A Yes.
      Q Did you read it over?
      A Yes.
      Q Did you sign it?
      A Yes.
      MR. HARRISON: Your Honor, we would ask for a copy of that statement.
      MR. COPELAND: Judge, we have got a hard enough time without giving him our work product. He hasn’t filed a motion for discovery or anything.
      THE COURT: Let me excuse the jury. Ladies and gentlemen — excuse me. Gentlemen of the jury would you just help yourself to the jury room. We have got — it would be a good time to take a break. The court reporter has been at it now for about an hour. He needs to take a break. I will hold the court in recess until — I have got five minutes difference between my clock and that one. Be back in the jury box at ten minutes to three. I have twenty minutes ’til three by my watch. Don’t discuss the case, please.
      MR. HARRISON: Your Honor, we are going to have some more questions of this witness.
      THE COURT: Don’t talk to any of the jurors but you can step outside.
      (Whereupon the following proceedings were had and done outside the presence of the jury:)
      THE COURT: Alright, there is a motion before the Court for the State to produce a statement from the prosecutrix that was signed by the prosecutrix shortly after the complaint was made. What says the State?
      MR. COPELAND: If Your Honor please, discovery is a discretionary right with the court. He doesn’t have any right to obtain it. He has filed no motion for discovery or production. The witness has not used it to refresh her recollection on the stand. To my knowledge she has not looked at it since I have been involved with her in this case. No, strike that. The first time I talked to her I did let her look at it approximately a month ago. I know she hasn’t seen it since then. She did not use it to refresh her recollection on the stand. I don’t think he is entitled to it. I have got a tough enough hold to row [sic] without giving him my work product.
      THE COURT: Being tough enough is not a legal argument. Go ahead.
      MR. HARRISON: Your Honor, as to any matter—
      THE COURT: What is your authority for being entitled to that?
      MR. HARRISON: Your Honor, as for the purpose of impeachment. The whole thing— she made a statement to the police, she read over the statement, she signed that statement, she said this is what happened. The State just testified this event occurred almost a year ago and she re-read that statement merely a month ago. Now, as to what point in time a party has to be to refresh their memory before they go to trial, that is a very questionable item. I am certainly not entitled to the statement as a matter of course before the trial but once the person testifies under oath, I believe I am entitled to see it.
      THE COURT: The State didn’t go into anything about a statement or any excerpts therefrom on direct examination. I will deny the motion.
      Likewise, during the testimony of the second prosecutrix the following was had:
      Q Alright. Later on that night, did you give a more detailed statement?
      A Yes sir.
      Q Alright. To a police officer?
      A Yes sir, to a Mrs. Wainright.
      Q Did she write it down?
      A Yes sir.
      Q Did you read it over?
      A Yes sir.
      Q Did you sign that statement?
      A Yes sir.
      MR. HARRISON: Your Honor, we move to have that statement produced.
      MR. COPELAND: The same objection.
      THE COURT: Denied.

      . Proposed Alabama Rules of Criminal Procedure, Rule 16.1(f), follows the general rule regarding pre-trial discovery. It provides:

        Information Not Discoverable. Except as otherwise provided in this rule, the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney, his agent, or by law enforcement agents in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses to agents of the state is not authorized.


text:
    Freddie Lee PATE v. STATE
    1 Div. 144.
    Alabama Court of Criminal Appeals.
    Aug. 4, 1981.
    On Return to Remand May 18, 1982.
   AFTER REMANDMENT BY THE SUPREME COURT OF ALABAMA

HARRIS, Presiding Judge.

Pursuant to the mandate of the Supreme Court of Alabama in the case of Ex parte: Freddie Lee Pate (In re: Freddie Lee Pate v. State of Alabama, 415 So.2d 1140 (1981) this case is remanded to the Circuit Court of Mobile County to conduct an evidentiary hearing in strict compliance with the opinion of the Supreme Court.

REMANDED, WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

HARRIS, Presiding Judge.

Pursuant to the mandate of the Supreme Court of Alabama this case was remanded to the Circuit Court of Mobile County to conduct an evidentiary hearing to determine if the pre-trial statements of the two rape victims differed in any respect from the statements made by them to the jury during the trial. The trial judge conducted such hearing and made the following return to the remand:

“The Court conducted a hearing in compliance with the remand in the case of Freddie Lee Pate vs. State of Alabama, and holds that the pre-trial statements of Jean Marie Joan Delmas and Kimberly Anne McFarlain do not differ in any respect from their testimony during the trial before a jury and that the statements requested by the defendant at trial were not of such a nature that without them the defendant’s trial was fundamentally unfair.
“Done this the 6th day of November, 1981.
/s/ D. J. Matranga
Judge, Circuit Court, Mobile County, Alabama.”

This court has again reviewed the entire record on appeal, including the testimony of the rape victims, and has concluded there is no reversible error in the record. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Pete J. BUFFO v. STATE.
    3 Div. 97.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant, a California real estate appraiser, was indicted in a three-count indictment with aiding, abetting, encouraging or otherwise assisting Vanguard Security Life Insurance Company, an Alabama corporation, in a securities fraud in violation of Act 542, now codified as Ala.Code § 8-6-17 (1975). Appellant was properly arraigned in the presence of counsel and interposed a plea of not guilty. Appellant was convicted as charged and the jury assessed a fine of $4,000.00. As additional punishment the trial court sentenced appellant to three years in the state penitentiary. These penalties are provided in Alabama Code § 8-6-18 (1975). After sentencing, appellant gave notice of appeal and is represented here by counsel of his choice as he was at trial. The trial court ordered appellant’s sentence suspended pending this appeal.

Omitting only its formal parts, appellant’s indictment is set out as follows:

“Count I . . . Pete J. Buffo, whose name is to the Grand Jury otherwise unknown, did, in connection with the offer, sale, or purchase of any security, to-wit: Surplus notes issued by Vanguard Security Life Insurance Company, a corporation, (hereinafter referred to as Vanguard), directly or indirectly employ a device or devices, scheme or schemes, or artifice or artifices to defraud, to-wit: the said Pete J. Buffo did aid, abet, encourage or otherwise assist Vanguard to falsify, inflate, or exaggerate appraisals of certain real estate owned or held by Vanguard, in that on two occasions the said Pete J. Buffo did provide appraisals on real estate in Palm Springs, California owned or held by Vanguard; and further, that the said Pete J. Buffo knew or should have known that the said appraisals would be submitted by Vanguard to the Insurance Commission of the State of Alabama, (hereinafter referred to as the Commission) in accordance with the laws of the State of Alabama and provide in whole or in part the monetary basis, economic foundation, or capital assets upon which the commission could determine the standing of Vanguard to do business in the State of Alabama; and further, that relying on the falsified, inflated or exaggerated appraisals, the Commission did allow Vanguard to do business in the State of Alabama, contrary to Act 542, Section 1, Regular Session of the Legislature of Alabama, 1959, ...”
“Count II ... Pete J. Buffo, whose name is to the Grand Jury otherwise unknown, did, within five years of the finding of this indictment, in connection with the offer, sale, or purchase of any security, to-wit: Surplus notes issued by Vanguard Security Life Insurance Company, a corporation, (hereinafter referred to as Vanguard), directly or indirectly make an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, to-wit: the said Pete J. Buffo did aid, abet, encourage or otherwise assist Vanguard to falsify, inflate, or exaggerate appraisals of certain real estate owned or held by Vanguard, in that on two occasions the said Pete J. Buffo did provide appraisals on real estate in Palm Springs, California, owned or held by Vanguard; and further, that the said Pete J. Buffo knew or should have known that the said appraisals would be submitted by Vanguard to the Insurance Commission of the State of Alabama, (hereinafter referred to as the Commission) in accordance with the laws of the State of Alabama and provide in whole or in part the monetary basis, economic foundation, or capital assets upon which the Commission could determine the standing of Vanguard to do business in the State of Alabama; and further, that relying on the falsified, inflated or exaggerated appraisals, the Commission did allow Vanguard to do business in the State of Alabama, contrary to Act 542 Section 1, Regular Session of the Legislature of Alabama, 1959, .... ”
“Count III ... Pete J. Buffo, whose name is to the Grand Jury otherwise unknown, did, within five years of the finding of this indictment, in connection with the offer, sale or purchase of any security, to-wit: Surplus notes issued by Vanguard Security Life Insurance Company, a corporation, (hereinafter referred to as Vanguard), directly or indirectly engage in an act, practice or course of business which operated or would have operated as a fraud or deceit upon any person, to-wit: the said Pete J. Buffo did aid, abet, encourage or otherwise assist Vanguard to falsify, inflate, or exaggerate appraisals of certain real estate owned or held by Vanguard, in that on two occasions the said Pete J. Buffo did provide appraisals on real estate in Palm Springs, California owned or held by Vanguard; and further, that the said Pete J. Buffo knew or should have known that the said appraisals would be submitted by Vanguard to the Insurance Commission of the State of Alabama (hereinafter referred to as the Commission) in accordance with the laws of the State of Alabama and provide in whole or in part the monetary basis, economic foundation, or capital assets upon which the Commission would determine the standing of Vanguard to do business in the State of Alabama; and further, that relying on the falsified, inflated or exaggerated appraisals, the Commission did allow Vanguard to do business in the State of Alabama, contrary to Act 542, Section 1, Regular Session of the Legislature of Alabama, 1959, ... . ”

Alabama Code § 8-6-17 (1975), upon which the indictment is based, reads in its entirety:

“It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly, to:
(1) Employ any device, scheme or artifice to defraud;
(2) Make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
(3) Engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.”

The Honorable George Beck testified that, while serving as Deputy Attorney General, he had a telephone conversation with appellant in late spring of 1976. Appellant was in California and Beck was in Alabama. Beck informed appellant he was investigating the operations of Vanguard Insurance Company on behalf of the Alabama Department of Insurance and that he wanted to discuss certain appraisals appellant had made for Vanguard in 1974 and 1976. The appraisals concerned California property located near Palm Springs. Appellant told Beck he had made the 1974 and 1976 appraisals and that they were accurate.

On cross-examination Beck stated that the capital account of Vanguard had become impaired and that receivership proceedings were filed against Vanguard because of that deficiency. Beck indicated that appellant talked openly during the conversation which was recorded and volunteered to come to Alabama if necessary. The transcript of this conversation, which was admitted into evidence, bears appellant’s frankness out and does not hint of any conspiracy to defraud the Department of Insurance. Nor is the offer, sale or purchase of a security even mentioned.

Beck further testified that Vanguard acquired the California property from Dari-International, Inc., a Washington corporation doing business in California, partially through the issuance of a surplus note, the purported security appellant allegedly conspired with Vanguard to “offer, sale or purchase.” In addition to the surplus note, Vanguard was to “pay Dari one half of the net profits derived from the subdivision, development, and sale of the land.”

The terms of the surplus note itself were that Vanguard was to pay Dari-Interna-tional $50,000.00 with 6% interest per an-num on or before June 30,1979, but only if Vanguard’s surplus account exceeded $3,100,000.00 as determined in accordance with the insurance laws of Alabama. The surplus note was executed on June 30, 1974 by James L. Hinton and Robert H. Pink-ston, the president and treasurer, respectively, of Vanguard. The surplus note was incorporated by reference in the contract for the sale of the two parcels of property in question. This contract was also executed on June 30,1974 by representatives of Vanguard and Dari-International. Appellant’s name or participation in this land purchase transaction is nowhere mentioned in either the contract or surplus note.

The contract instrument does provide that Dari-International was to furnish Vanguard appraisal reports, prepared by appraisers acceptable to the Department of Insurance of the State of Alabama, demonstrating the present market values of the two parcels to be in aggregate not less than $1,180,775.00. It should be noted the contract provided that, in lieu of the surplus note/division of net profit arrangement previously described, Dari-International had the option to receive eight surplus notes in the amount of $100,000.00, four surplus notes in the amount of $50,000.00 and one surplus note in the amount of $55,777.00. In short, according to the terms of the contract, Dari-International was to give up property just about equivalent in value to what it received from Vanguard and vice versa. Vanguard and Dari-International appeared to be dealing at arm’s length and there is no evidence whatsoever that either party fraudulently offered, sold or purchased any security from or to the other. The record is devoid of any evidence that appellant took any part in these transactions at all.

Beck stated on redirect that, on June 3, 1974, appellant submitted an appraisal report to Vanguard valuing one parcel of the California property, the 360 acre tract of “slope property,” at $2,000.00 per acre. Appellant’s appraisal report, state’s exhibit one, was addressed to Leland Jones, the secretary of Vanguard. In the report appellant certified that neither his employment nor compensation was contingent upon the value he reported. Moreover, appellant specifically did not guarantee the information in the report and stated that it could not “be used for any purpose by [anyone] except the addressee without the previous written consent of the appraiser.” Again, there is no reference, suggestion or allusion in appellant’s appraisal report concerning the offer, sale or purchase of any security, or to any device, scheme or artifice to defraud the Department of Insurance or any other person. Appellant’s June 3, 1974 appraisal report on the 360 acre slope property from the record before us was simply an appraisal for Vanguard, whether accurate or not, and nothing more.

Nelson Thompson, an independent real estate appraiser from Los Angeles, California, testified that appellant retained his services to appraise the 360 acre slope property on February 24, 1976. Appellant gave Thompson a copy of his 1974 appraisal report in which he had valued the parcel at $2,000.00 per acre. Thompson obtained comparable sales data from Robert G. Hill, a Palm Springs appraiser, prior to compiling his appraisal report for appellant. Also, at appellant’s request, Thompson appraised a 290 acre tract of valley property on February 26, 1976. After making his analysis of the two parcels, Thompson valued the 360 acre slope property at $55.00 per acre and the 290 acre valley property between $250.00 and $400.00 per acre. Thompson submitted his reports to appellant on March 2, 1976.

Appellant informed Thompson he could not use his appraisals. “He said I can’t use these, he said hell, the appraisal that I put together [in 1974] is much higher, how am I going to look when I send these down with your figures.” Appellant told Thompson “for you to get paid we’ll have to change this around.” Thompson explained to appellant what figures and information would have to be altered and together, Thompson and appellant changed Thompson’s appraisals. Thompson’s original appraisal was destroyed in appellant’s office. Appellant told Thompson Vanguard needed the appraisals for a capital statement. “He implied to me that we would have to at least support his 1974 appraisal or better.” The “transformed” appraisals valued the 360 acre tract at $4,000.00 per acre and the 290 acre tract at $5,000.00 per acre. Thompson saw appellant sign the 1976 appraisals and himself supplied a letter stating that he concurred with the “final estimate of fair market value.” Appellant “gave me a check and I left.”

Thompson reported that the $2,000.00 check “bounced” but that appellant assured him he would “take care of it.” On March 10, 1976, appellant called Thompson’s office and appeared to be “quite nervous” asking if anyone had contacted him from Alabama. “He said well I understand there’s a fellow by the name of Hartley who has been in Palm Springs and he’s talked to Robert Hill already and he’ll probably be calling you but I wish you wouldn’t tell him anything.” Thompson stated appellant finally paid him $2,000.00 for his services.

Charles Skinner, an examiner with the Department of Insurance, testified that he examined Vanguard Security Life Insurance Company in 1974 and 1975. Skinner stated that Vanguard was insolvent by $474,000.00 on December 31, 1973. Vanguard’s records demonstrated, however, that their insolvency was cured in June or July of 1974 because of the purchase of two parcels of land in California and two parcels in Tennessee. The value attributed to the combined real estate totaled $1,509,918.00. Because of this representation Vanguard appeared to have a net worth of $478,773.00 on December 31,1974. Skinner stated that, in the absence of the $2,000.00 per acre appraisal on the 360 acre slope property (totalling $720,000.00) submitted by Vanguard to the Department of Insurance, Vanguard would not have been solvent and would have been placed into receivership at that time. Skinner further stated that the real estate was valued at $3,100,105.00 on December 31, 1975 based on Vanguard’s annual financial statement which was filed on March 16, 1976. Thus, the same real estate was represented by Vanguard to have approximately doubled in value between the end of 1974 and the end of 1975.

Skinner testified on cross-examination that appellant did not appear at the Department of Insurance or anywhere else in support of Vanguard’s annual financial statements.

On redirect Skinner stated that the surplus note given to Dari-International by Vanguard was not registered under the security laws of Alabama. Skinner referred to the last paragraph of the surplus note which read: “This Surplus Note has not been registered under the Securities Act of 1933, as amended, or any State Securities Law; the issuance and/or negotiation of this Surplus Note, if it is a security otherwise required to be registered, is issued in a transaction not involving any public offering.” Skinner testified that Vanguard paid very little cash for the California property it purchased from Dari-International. “In the beginning, very little, it may have been $5,000.00 but practically no cash was paid.”

Robert G. Hill, a real estate appraiser and broker from Palm Springs, California, testified that Nelson Thompson solicited his help on an appraisal in March, 1976. Hill gave Thompson information concerning comparable properties he had recently appraised near the subject property and provided Thompson with old appraisal reports as a convenience. Hill pointed out various discrepancies between the comparable data he provided Thompson and the information contained in appellant’s 1976 appraisal reports for the 360 acre slope property and the 290 acre valley property.

Hill, at the request of the Department of Insurance, conducted independent appraisals of the 360 and 290 acre parcels in April of 1976. Through meticulous and laborious examination Hill explained that, based on his determination, the 360 acre tract was worth $50.00 per acre for a total value of $18,000.00 and that the 290 acre tract was worth $330.00 per acre for a total value of $95,000.00. Hill characterized much of appellant’s 1976 appraisal reports as being “absolutely false” or “misleading.” Concerning appellant’s June 3,1974 appraisal of the 360 acre tract Hill stated, “I think that it just has to be either a lack of sincere effort in investigating the factors involving value and could very well be a justification of some preconceived figure.”

James Robert Carlisle, Chief Examiner with the Department of Insurance, testified that the financial condition of Vanguard Security Life Insurance Company was impaired in 1974. He stated that Vanguard’s financial impairment was cured based on the values enumerated in appellant’s appraisal.

Paul E. Wallace, an Insurance Examiner serving as Deputy Receiver for Vanguard, stated that Vanguard was placed in receivership on November 29,1976. Wallace testified that Vanguard did business in Alabama subsequent to June 3, 1974 and had 1880 unpaid claims totaling $2,137,852.66.

At the conclusion of Wallace’s testimony the State rested its ease. Appellant then moved to exclude the evidence on several grounds, the principal grounds being that the State failed to prove a prima facie case of securities fraud and that no evidence was presented which proved that a conspiracy existed between appellant and Vanguard to defraud the Department of Insurance. Appellant’s motion to exclude was denied; however, the trial court did instruct the jury that they could consider the 1976 appraisals only for the purpose of determining appellant’s intent since there was no evidence a security was issued in 1976. Consideration of the 1976 appraisals as a substantive crime or for any other purpose than the limited exception was excluded.

Based on the above evidence, and viewing it in the most favorable light to the State, as we are required, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), we find it insufficient to prove a prima facie case of securities fraud. Appellant’s conviction must, therefore, be reversed.

In reviewing the action of the trial court in overruling a motion to exclude the evidence, only the evidence before the trial court at the time the motion was made can be considered. James v. State, 351 So.2d 693 (Ala.Cr.App.1977); Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968). The standard of review is whether there exists legal evidence before the jury, at the time the motion was made, from which the jury could by fair inference find the accused guilty. Stewart v. State, 350 So.2d 764 (Ala.Cr.App.1977).

Initially, it must be noted that there is not one shred of evidence that appellant conspired with Vanguard “in connection with the offer, sale, or purchase of any security” in order to defraud the Alabama Department of Insurance. Although appellant’s indictment is by no means a model of perspicuity, this is essentially what it alleged. All three counts of his indictment charge that appellant “did aid, abet, encourage or otherwise assist Vanguard.” The indictment does not charge appellant with the substantive offense of securities fraud.

The evidence simply indicates that appellant was hired in 1974 by Vanguard to appraise 360 acres of California property. There is not even a scintilla of evidence that appellant knew his 1974 appraisal would be submitted by Vanguard to the Department of Insurance and that, based on his appraisal, Vanguard would be allowed to stay in business. Appellant’s 1974 appraisal, no matter how faulty or exaggerated, in no way linked him to a scheme with Vanguard to practice a fraud upon the Alabama State Department of Insurance.

There is evidence, by way of Nelson Thompson’s testimony, that, in 1976, when the 360 acre parcel was “reappraised”, appellant knew his appraisal was needed for Vanguard’s “capital statement”; however, there is, again, no evidence whatsoever that appellant knew the appraisal would be submitted by Vanguard to the Department of Insurance. Vanguard could have needed a capital statement for a variety of reasons. It is true that in 1976 the evidence is much stronger that appellant’s appraisals were the product of deliberate falsification; still there is no hint that appellant had a prearranged plan with Vanguard to defraud the Department of Insurance. At most, Nelson Thompson’s testimony revealed that appellant did not want to be embarrassed in front of Vanguard in 1976 after he realized he had probably made a mistake in his 1974 appraisal. “[H]ow am I going to look when I send these down with your figures.” Appellant’s intent to defraud the Department of Insurance, for which purpose the 1976 appraisals were admitted, was not shown. In all his meetings with Thompson the Department of Insurance was never mentioned. The appraisals were simply being done for Vanguard.

Department of Insurance representatives who testified made it clear that appellant’s 1974 and 1976 appraisals were submitted by Vanguard in its annual financial statement and that appellant had no contact with the Department in support of Vanguard’s representations. Appellant’s June 3, 1974 appraisal report itself specified that it was only to be used by Vanguard and not for any other purpose without appellant’s consent. No one from Vanguard testified as to Vanguard’s relationship with appellant.

In summary, appellant did not submit either his 1974 or 1976 appraisal report to the Department of Insurance. There is no evidence that he knew or should have known Vanguard would. Appellant only knew Vanguard needed his 1976 appraisals for its “capital statement.” But, most importantly, there is absolutely no evidence that appellant conspired in any way, shape, form or fashion with Vanguard to defraud the Department of Insurance. This, in essence, was what was alleged and what had to be proved for appellant’s conviction to be sustained. The critical element of intent to be a part of a conspiracy is missing.

When, by prearrangement or on the spur of the moment, two or more people enter on a common enterprise or adventure and a criminal offense is contemplated, each is a conspirator and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. McCovery v. State, 365 So.2d 358 (Ala.Cr.App.1978). And, while evidence of a conspiracy need not be proved by positive testimony, but may be established circumstantially, Hudson v. State, 354 So.2d 328 (Ala.Cr.App.1978), the intent to conspire must be shown. Mackreth v. United States, 103 F.2d 495 (5th Cir. 1939). Conspiracy requires a community of purpose, Kendrick v. State, 377 So.2d 1112 (Ala.Cr.App.), cert. denied, 377 So.2d 1114 (Ala.1979), or a meeting of the minds by all the participants. Howell v. State, 339 So.2d 138 (Ala.Cr.App.1976).

While conspiracy to do an act is evidence tending to connect a defendant with its consummation, there must be some evidence tending to prove a conspiracy before a jury is authorized to reach such a conclusion. Stephenson v. State, 27 Ala.App. 122, 166 So. 620 (1936). Furthermore, an alleged conspirator cannot be bound by the acts and declarations of other participants in the conspiracy until after it has been established that a conspiracy existed and that he was one of its members. United States v. Maddox, 492 F.2d 104 (5th Cir.), cert. denied, 419 U.S. 851, 95 S.Ct. 92, 42 L.Ed.2d 82 (1974).

In the instant case there is not one scintilla of evidence, either direct or circumstantial, to show that appellant conspired with Vanguard. No community of purpose, meeting of the minds, or conspiracy of any sort between Vanguard and appellant was ever established. To hold appellant a conspirator to defraud the Department of Insurance would be based on sheer speculation, surmise or conjecture.

While a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction. Thomas v. State, 363 So.2d 1020, 1022 (Ala.Cr.App.1978); Smith v. State, 345 So.2d 325 (Ala.Cr.App.), writ. quashed, 345 So.2d 329 (Ala.1976). A defendant should not be convicted on mere suspicion or out of fear that he might have committed the crime. Harnage v. State, 49 Ala.App. 563, 274 So.2d 333 (1972). Mere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence. Thomas, supra; Sauls v. State, 29 Ala.App. 587, 199 So.2d 254 (1941).

As a corollary to the above principles, the State did not properly establish venue over appellant. This issue was timely raised in appellant’s motion to exclude the State’s evidence. The record shows that appellant never performed a single act in Alabama, much less in Montgomery County. The 1974 and 1976 appraisals for Vanguard were done in California. Since there was no evidence of a conspiracy between Vanguard and appellant, the acts of Vanguard in Alabama cannot be deemed the acts of the appellant. Williams v. State, 383 So.2d 547 (Ala.Cr.App.1979), affirmed, 383 So.2d 564 (Ala.1980).

In a criminal prosecution the accused has a constitutional right to a trial “[in] the county or district in which the offense was committed.” U.S.Const. Amendment VI; Ala.Const. Article 1, § 6, Williams, supra. Proof of venue is necessary to sustain a conviction, Grace v. State, 369 So.2d 318 (Ala.Cr.App.1979), and “must be properly laid to give jurisdiction.” Barlow v. Garrow, Minor 1 (Ala.1820). Unless otherwise provided by law, venue of all public offenses is in the county in which the offense was committed. Stokes v. State, 373 So.2d 1211 (Ala.Cr.App.), cert. denied, 373 So.2d 1218 (Ala.1979). The burden of establishing venue is on the State. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969). In the instant case, since the State failed to prove a conspiracy it also failed to meet its burden of proof in establishing venue.

Assuming, arguendo, that the State had been successful in proving a conspiracy between appellant and Vanguard to defraud the Department of Insurance, which we have held it was not, appellant’s conviction still cannot stand because neither the actions of appellant nor of Vanguard were in violation of Alabama Code § 8-6-17 (1975). This was simply not a case involving securities fraud.

As stated by this court in Manson v. State, 349 So.2d 67, 73 (Ala.Cr.App.), cert. denied, 349 So.2d 86 (Ala.1977) concerning Section 8-6-17:

“The quoted provision of the statute is in all respects, other than in the insertion of the word ‘offer’ and that which is necessary to a delineation between the area of sovereignty of Alabama and that of the United States, identical with the language of Rule 10b-5 [17 C.F.R. § 240. 10b-5] of the Securities and Exchange Commission pursuant to its authority under the Securities Act of 1933 (15 U.S.C. § 77a, et. seq.) and the Securities Exchange Act of 1934 (15 U.S.C. § 78a, et. seq.).”

Laws governing the exchange of securities, such as Section 8-6-17, are commonly referred to as “blue sky laws.” Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480 (1916). And, as the court noted in Manson, supra, “there is remarkable scarcity of reported cases under ‘blue sky laws’ or the like, whether state or federal.” 349 So.2d at 77. In Gallion v. Alabama Market Centers, Inc., 282 Ala. 679, 213 So.2d 841, 845 (1968), a securities case involving investment contracts, our Supreme Court acknowledged the appropriateness of turning to federal decisions interpreting federal securities law in construing identical sections of Alabama securities law.

Many of the federal cases cited in appellant’s brief, which interpret the application of Rule 10b-5 in civil suits, contain principles which are directly applicable in this case. Without question, the securities act cannot be construed less strictly in a criminal prosecution than in a civil suit. A basic rule of review in all criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).

Before delving into the federal authority which provides basic guidelines in this area, it is necessary to review certain critical facts. The evidence is unequivocal that the security in this case, the surplus note executed on June 30,1974, was issued by Vanguard to Dari-International. Reading Ala. Code § 8-6-2(10) (1975) we find:

“SECURITY. Any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease, annuity contract unless issued by an insurance company, bankers’ shares, trustees’ shares, investment participating bonds, investment trust debentures, units, shares, bonds and certificates in, for, respecting or based upon any form of securities or collateral, subscriptions and contracts covering or pertaining to the sale or purchase on the installment plan of any security as herein defined, or subscription or contracts covering or pertaining to the sale or purchase of beneficial interest in title to property, profits or earnings, or any right to subscribe to any of the foregoing or any instrument of any kind commonly known as a security.” (Emphasis added.)

The surplus note in question was issued as part of a land purchase transaction between Vanguard and Dari-International. Appellant was not involved in this transaction. From all that appears in the record, Vanguard and Dari-International were dealing at arm’s length and neither party was defrauded by the other. From the terms of the land purchase contract itself, Dari-International had certain options it could exercise at its election. There is no evidence that Vanguard, “in connection with the offer, sale or purchase” of the surplus note, directly or indirectly (1) employed any device, scheme or artifice to defraud Dari-International; (2) made any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made, in the light of the circumstances under which they were made, not misleading; or (3) engaged in any act, practice or course of business which operated as a fraud or deceit upon Dari-In-ternational.

It is nowhere shown that the value of what Dari-International conveyed to Vanguard was not about the same as the value of the obligation which Vanguard gave Dari-International. Neither Vanguard, its stockholders, creditors, nor the Department of Insurance were adversely affected by the issuances of the surplus note. No investor was victimized. Of even greater importance here, concerning Vanguard’s issuance of the surplus note, there is no evidence that appellant was even aware that Vanguard had issued a surplus note in its negotiations with Dari-International for the land purchase. In other words, not only is there no evidence of a securities fraud involving Vanguard and Dari-International, there is no indication that appellant was even cognizant that a security had been issued.

Referring now to federal cases which discuss Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 it becomes even more apparent that under the present facts a prosecution for violation of Alabama Code § 8-6-18 (1975) runs far afield of the statute’s intended purpose. Foremost in importance in this area, the securities acts have as their fundamental and dominant purpose the protection of investors. McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490, 495 (5th Cir. 1974); Little v. United States, 331 F.2d 287, 294 (8th Cir. 1964). In a 10b-5 action any fraud alleged to have occurred must occur in connection with the sale or purchase of securities. Penn Central Securities Litigation, 494 F.2d 528, 533 (3rd Cir. 1974). “Congress by 10(b) did not seek to regulate transactions which constitute no more than internal corporate mismanagement.” Superintendent of Insurance of New York v. Banker’s Life & Casualty Co., 404 U.S. 6, 12, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (1971); Penn Central Securities Litigation, supra.

In the landmark case of Birnbaum v. Newport Steel, 193 F.2d 461, 464 (2d Cir. 1952), Judge Hand writing for the Second Circuit held the following:

“[S]ection [10(b) ] was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and ... [Rule 10b-5 extends] protection only to the defrauded purchaser or seller.” (Emphasis added.)

The “Birnbaum rule" has been approved in unequivocal terms by the Supreme Court in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). A plaintiff in a civil suit asserting a claim for damages based on violation of Rule 10b-5 “must either be a purchaser or seller of securities.” Blue Chip Stamps, supra, 421 U.S. at 749, 95 S.Ct. at 1931. Clearly, the statute cannot be less strictly construed in this criminal action. Spurlock v. State, 37 Ala.App. 390, 69 So.2d 293 (1953). The Supreme Court in Blue Chip Stamps, supra, recognized that 10b-5 was a private cause of action and did not extend to a nonpurchasing offeree of a stock offering. 421 U.S. 754.

It has been recognized that while certain transactions may involve flagrant violations of fiduciary duty that in itself is no justification for straining statutory language to bring the transaction within the prohibitions of the Securities Act of 1933 and the Securities Exchange Act of 1934 which, sensibly construed, do not apply to them. Securities & Exchange Com’n v. Fifth Avenue Coach Lines, Inc., 289 F.Supp. 3, 37 (S.D.N.Y.1968).

In Chess v. Nieport, 386 F.Supp. 312 (E.D.Cal.1974), the plaintiff-purchasers of real estate alleged that the defendant conspired and entered into a common scheme to defraud and deceive them by purposely selling them real property at prices much greater than their value and obtaining secret profit and commissions. The plaintiffs alleged that they executed promissory notes and deeds of trust in favor of the defendants in connection with the real estate transaction. In dismissing the plaintiff’s action the court stated:

“The Supreme Court has held that the courts must approach a determination of whether there has been a ‘purchase or sale’ within the Securities Act of 1934 on a case by case basis. . .. The courts must look to see whether the alleged conduct is the type of fraudulent behavior that Congress intended to forbid.... In the instant case the court is presented with a land sales transaction involving allegations of fraud and misrepresentation. The ‘crux’ of this transaction was not the sale of an investment security, i.e. the giving of a promissory note in return for money as a part of a scheme to engage victims to invest in money venture. ... Here the promissory notes were exacted from the victims rather than the promoter and they were executed and delivered only as an incident to a double-barreled scheme to skim fraudulently concealed profits from a real estate transaction and to fraudulently misrepresent the value of the real estate in order to encourage its purchase. I cannot find, under the circumstances of this case, where the alleged victims in a fraudulent real estate transaction give a promissory note which is secured by a deed of trust on existing land, the promoters of the allegedly fraudulent scheme are thus involved in the sale of security within the meaning of the Securities Exchange Act.” (Emphasis added.) 386 F.Supp. at 314-15.

And in Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 194 (3rd Cir. 1976) the Third Circuit held:

“The ‘purchase’ or ‘sale’ requirement, derived as it is from the actual language of the 1934 Act which makes unlawful any deceptive or manipulative device employed ‘in connection with the purchase or sale of any security,’ contemplates a causal connection between the alleged fraud and the purchase or sale of stock.” (Emphasis added.)

The case of Vincent v. Moench, 473 F.2d 430 (10th Cir. 1973) involved a situation where the defendant devised a scheme to defraud the plaintiffs. In furtherance of the scheme, the defendant deceptively purchased securities from a third party. The plaintiffs were not privy to the transaction, but claimed a 10b-5 securities fraud. The Tenth Circuit held:

“In the final analysis, we have a scheme, a sale, and an injury, but this does not necessarily spell jurisdiction. The question is whether there is a causal connection between the deceptive sale and the injury to the plaintiffs. Although the deceptive purchase was, to be sure, a link in the chain of causation, the plaintiff’s injury was the direct result of corporate mismanagement, not of the deceptive purchase. There was, therefore, no requisite causal connection between the deceptive purchase and the plaintiff’s injury.... ” (Emphasis added.)

Alleged fraud arrangements have likewise been held “too remote” to satisfy the “in connection with the purchase and sale” requirement as contemplated by Blue Chip Stamps, supra, in the Fifth Circuit. Wilson v. First Houston Investment Corp., 566 F.2d 1235, 1243 (5th Cir. 1978). The alleged fraud simply must be “intrinsic” to the securities transaction itself. Rich v. Touche Ross & Co., 415 F.Supp. 95, 100 (S.D.N.Y.1976). Further recitation of authority on this issue would serve no useful purpose.

Obviously, the Department of Insurance was not a purchaser or seller of Vanguard’s surplus note. The Department of Insurance was by no stretch of the imagination an “investor” in the land purchase negotiations between Vanguard and Dari-Interna-tional, and it was privy to none of the transactions between the two companies. At most, the Department of Insurance acted as a policing agency over Vanguard’s financial affairs, but was far removed from actual participation with Vanguard in the purchase or sale of securities. There was no causal connection at all, even a remote one, between Vanguard’s alleged fraudulent misrepresentation to the Department of Insurance and the purchase or sale of any securities, i.e., the surplus note. What is even more unfathomable in this case is appellant’s non-existent connection with any of the transactions between Vanguard and Dari-International, or Vanguard and the Department of Insurance, much less his connection in a securities fraud.

Clearly, what the state did was to attempt to combine two causally unconnected transactions, i.e., Vanguard’s issuance of a security in order to acquire the land, which did not involve any fraud or deception, and Vanguard’s misrepresentations to the Department of Insurance as to the value of the land, a transaction which did not involve the sale of a security. Even had the State been successful in proving that appellant conspired with Vanguard to accomplish both these transactions, which it did not, such structuring of transactions would have been insufficient to prove a prima facie case as charged in the indictment.

Although there are other issues raised on this appeal seeking a reversal of this cause, we pretermit their discussion in this opinion since the State failed in its duty to prove a prima facie case. Appellant’s motion to exclude the State’s evidence was due to be granted. To hold otherwise would be to ignore the plain wording of Alabama Code § 8-6-17 (1975) and set a precedent at odds with all other jurisdictions. Appellant has not been shown to be guilty of the crime for which he was convicted. We have no alternative but to reverse and render appellant’s conviction. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED AND RENDERED.

All the Judges concur except BOOKOUT, J., not sitting.