text:
    James Lee PARHAM, Sr. v. CITY OF OPELIKA.
    5 Div. 598.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Joseph L. Dean, Jr., of Walker, Hill, Adams, Umbach, Herndon & Dean, Opelika, for appellant.

      Charles A. Graddick, Atty. Gen., and Guy F. Gunter, III, of Melton, Gunter & Melton, Opelika, for appellee.
   DeCARLO, Judge.

Assault in the third degree; sentence: three months’ imprisonment (suspended) and a $300 fine.

Around 6:30 p. m. on March 13, 1981, appellant arrived uninvited at the residence of his former wife. After she had partially opened the door, he pushed the front door open and gained access. Appellant then pushed the victim out of the way. Mrs. Parham seated herself in a chair near her child whom she had been feeding. Appellant knocked her out of the chair and onto the floor. As she rose, appellant struck her on the left side of her face and jaw with the back side of his hand. The blow left a noticeable bruise and mark which was painful throughout the next day. The blow knocked the victim to the floor and as she rose appellant pushed her into the kitchen and attempted to choke her. Appellant threatened her stating in substance, “I should kill you.”

The evidence was in conflict as to the above sequence of events as well as to whether the victim had previously sustained the facial bruise at her place of employment. The evidence presented a question for the jury which was presented to and resolved by it. Appellant does not challenge the sufficiency of the evidence. Thus, a further recitation of the facts is unnecessary.

I

Appellant asserts that the trial court erred in failing to charge the jury that disorderly conduct, § 13A-11-7(a)(1) Code of Ala.1975 (Amended 1977), was a lesser included offense of assault in the third degree. § 13A-6-22(aXl) Code of Ala.1975 (Amended 1977). Appellant objected to the trial court’s oral charge, but did not submit a requested charge covering the alleged omitted matter.

In Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980), at page 35 we stated:

“In Smith v. State, 53 Ala.App. 657, 303 So.2d 157 (1974), we stated:
“ ‘[W]here a party desires the court to extend its oral charge to cover some applicable law in the trial of a case, his remedy is to request a written charge on the subject, which if refused would protect the record and present the matter to the Appellate Courts. The rules governing objections and exceptions to the oral charge of the court either in the matter of what the court says or does not say require that if the objection is to what the court did say the remedy is only by exception thereto (Passmore v. State, 47 Ala.App. 189, 252 So.2d 115), and if the objection is to the court’s refusal or omission to charge on a particular subject applicable under the evidence the procedure is by way of a requested written charge. (Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Tranholm v. State, 38 Ala.App. 57, 77 So.2d 491).
“ ‘A failure to pursue one of the remedies above set out, if proper and applicable to the case, is a waiver of a review by this court as to the matters in question.’ ”

We therefore hold that appellant did not properly preserve the question for review. Hollis v. State, 399 So.2d 935 (Ala.Cr.App.1981); Travis v. State, 397 So.2d 256 (Ala.Cr.App.), cert. denied, 397 So.2d 265 (Ala.1981).

Nevertheless a close reading of both offenses in conjunction with § 13A-1-9(a)(1), (4), which defines a lesser included offense, reveals that the offenses have totally different aggrieved parties (the public as opposed to an individual), intent, and injury elements. Further, the instant offense is catalogued under the heading “offenses involving danger to the person,” while disorderly conduct falls under “offenses against public order and safety.” Therefore, we find that disorderly conduct is not a lesser included offense of assault in the third degree. See People v. Munafo, 50 N.Y.2d 326, 428 N.Y.S.2d 924, 406 N.E.2d 780 (1980).

Further, neither did the trial court err in restricting appellant’s closing argument on this matter, nor did his trial counsel fail to adequately represent him by not submitting a written requested charge.

II

Appellant argues that the trial court committed two additional errors in its oral charge. First, he asserts that the trial court erred when it stated that the case was very important to the parties involved. Secondly, he argues that error was committed when the trial court made a reference to the prosecutor’s closing argument where the prosecutor had characterized the instant offense as assault and battery.

Appellant took no exception or made no objection to the above alleged errors. Thus, nothing is preserved for our review. Travis, supra; Storie v. State, 390 So.2d 1179 (Ala.Cr.App.), cert. denied, 390 So.2d 1184 (Ala.1980), Yates, supra; Sprinkle v. State, 368 So.2d 554 (Ala.Cr.App.1978), cert. denied, 368 So.2d 565 (Ala.1979); Frazier v. State, 365 So.2d 339 (Ala.Cr.App.1978).

Nevertheless, we find that the above statements taken individually and collectively, when read in context with the whole charge, were not prejudicial to appellant.

Having reviewed the record for error and finding none, the judgment of conviction by the Lee Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Anthony JONES v. STATE.
    5 Div. 645.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    John I. Cottle, III, of Cottle & Cottle, Tallahassee, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for burglary in the third degree. Alabama Code 1975, Section 13A-7-7 (Amended 1977). He was sentenced as a habitual offender to 15 years’ imprisonment.

I

There is no “automatic exception” to refused written requested charges. In order to preserve for review any alleged error in the trial judge’s refusal to give a written requested charge objection with supporting grounds must be made before the jury retires to begin its deliberation. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981).

II

The trial judge properly denied the defendant’s motion in limine to prevent the State’s use of an eleven-year old burglary conviction to impeach the defendant. Burglary is a crime involving moral turpitude. C. Gamble, McElroy’s Alabama Evidence, Section 145.01(9)(e) (3rd ed. 1977). The conviction was not rendered inadmissible simply because it was eleven years old. McDaniel v. State, 365 So.2d 350 (Ala.Cr.App.1978).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Ray WILLIAMS v. STATE of Alabama.
    5 Div. 650.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Larkin Radney, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Ray Williams was indicted for the murder, by use of a rifle, of his son, Hank Williams, in violation of § 13A-6-2, Code of Alabama 1975. The jury found him guilty of manslaughter for which the trial court set sentence at seven years’ imprisonment.

On May 29, 1981, just outside his residence, Hank Williams was shot and killed with a .22 caliber bullet. Several of his friends and relatives, including his father, the appellant, had come to visit Hank that day before the shooting. Most of the visitors were “drinking” and “shooting birds.”

At approximately 2:00 p. m. Jimmy Cosby and Mike Walls saw the appellant attempt to leave in his truck with his grandson, the deceased’s son. The appellant backed into a car that had blocked him in. After the owner of the car had moved it out of the way, Hank Williams, the deceased, began arguing with the appellant, insisting that the appellant could not take his grandson home with him. Cosby quickly escorted the child into the house. (R. 16). Walls took a shotgun away from the appellant who was attempting to point it at the deceased. Walls then saw the appellant pull out into the road, stop, and point a .22 rifle out his truck window “at all of them.” (R. 25). He (R. 26) and Cosby (R. 16) both heard the shots that killed Hank Williams, but neither actually saw the appellant pull the trigger.

As soon as he realized that Hank had been shot, Walls picked him up and took him to the hospital, where he died the next day.

Dr. Watwood testified (R. 39) that Hank Williams died from massive internal bleeding due to a bullet which entered his abdomen just left of his naval. Dr. Gilchrist performed an autopsy and recovered three bullet fragments which he turned over to Lonnie Hardin. Hardin, a ballistics expert determined that the bullet fragments that killed Hank Williams were fired from the .22 caliber rifle that the appellant had “pointed at” him. (R. 58).

Joe Neighbors, the police investigator who retrieved appellant’s .22 caliber rifle as evidence, also obtained a statement from the appellant which he summarized for the jury. (R. 73). He stated that the appellant denied arguing with Hank Williams but admitted that he pointed the rifle out of his truck window. However, the appellant told him that he pointed the gun at his brother-in-law, Sam McGee, that he did not think the gun was loaded, that he did not intend to shoot anybody, and that “the shooting was an accident.” Neighbors stated that appellant never actually admitted that he pulled the trigger.

The funeral home director who embalmed the deceased’s body and subsequently delivered it to Dr. Gilchrist for the autopsy testified to complete the chain of custody of the corpse and in so doing he identified a picture Dr. Gilchrist had taken of the corpse (Exhibit 3). This photograph was admitted into evidence over the appellant’s objection. (R. 64).

In his own defense, the appellant testified (R. 101) that he did not back into anyone’s car, that he did not argue with Hank Williams and that he did not point his rifle out of his truck window in Hank’s direction.

Thelma and Sam McGee were with the appellant earlier that day and saw him “run out of bullets” while shooting blackbirds. Sam was also at Hank’s house when he was shot, but did not witness the shooting.

Renee Williams, the deceased’s wife, testified for the appellant, but stated that he called her after the shooting and told her he thought that “he had shot Hank.” (R. 93). The appellant later explained (R. 102) that he told Renee “he thought Hank had been shot” even though he did not know who had shot him. (R. 103).

Evidence was introduced that Walls and the deceased had been charged with drug violations and that the deceased was “scared” that he might not live until his trial. (R. 91). Several witnesses testified that Walls placed a pistol in the deceased’s casket at the funeral.

I

Appellant argues that there was insufficient evidence to sustain his conviction. We disagree.

It is true that the state did not produce an eyewitness to the actual “pulling of the trigger.” However, two eyewitnesses, Walls and Cosby, described the events up to the point where the appellant pointed the rifle out his truck window at the deceased. Also, the state’s ballistics expert testified that the bullet which killed the deceased was fired from the appellant’s .22 caliber rifle.

Furthermore, the statement appellant gave to the investigating officer with reference the accidental nature of the shooting as well as the testimony of the deceased’s wife, appellant’s own witness, that appellant called her and told her that he had shot the deceased lend credence to appellant’s guilt.

“Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court.” Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1978).

There was more than enough evidence before the jury to support its conclusion that the appellant shot and killed his son, Hank Williams. Taylor v. State, 405 So.2d 946 (Ala.Cr.App.) cert. denied, 405 So.2d 951 (Ala.1981), and cases cited therein.

II

Appellant also challenges the admissibility of Exhibit 3, the photograph of the deceased’s body. Appellant contends that the prejudicial effect of this picture outweighed any probative value.

The photograph (R. 53) was a frontal view of the deceased’s face. It was not gruesome. For aught that appears, it was introduced to complete the chain of custody of the corpse. The bullet fragments subsequently removed from that corpse were then matched to appellant’s rifle.

The trial court did not err in admitting this photograph. Townsend v. State, 402 So.2d 1097 (Ala.Cr.App.1981), and cases cited therein.

This cause is, therefore, due to be and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Robert Earl SNOW v. STATE.
    6 Div. 652.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Charles A. Graddick, Atty. Gen., Rivard Melson, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The defendant was indicted and convicted for rape in the first degree. Alabama Code 1975, Section 13A-6-61 (Amended 1977). Sentence was ten years’ imprisonment.

The record contains a pro se “Request to Dismiss Appeal” sworn to and signed by the defendant. Defendant’s appellate counsel, on the basis of this motion, also requests this Court to dismiss the appeal. The defendant has filed no brief on appeal.

In view of these facts the defendant’s appeal is hereby dismissed. Rule 42, Alabama Rules of Appellate Procedure. See also Johnson v. State, 56 Ala.App. 627, 324 So.2d 341 (1975); Winfrey v. State, 43 Ala.App. 659, 199 So.2d 177 (1967).

APPEAL DISMISSED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Charlie Tyrone WILLIAMS v. STATE.
    6 Div. 717.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    John E. Amari, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was charged with robbery in the first degree. He was subsequently convicted of the charge and sentenced to 10 years imprisonment.

The State’s first witness was the victim, Hart White. Mr. White, a 76 year old electrician, testified that, at 1:30 p. m. on February 2,1980, he left a local barber shop where he and some friends had been watching a televised basketball game and walked to a package store to get some whiskey for his friends. After leaving the store for the return trip to the barber shop, Mr. White was approached by two black men. One of the men asked the victim for a cigarette. When Mr. White replied that he did not smoke, the assailant responded, “Well, give me what you got in your pocket.” The assailant then walked behind Mr. White and held a knife to his throat. As the assailant held Mr. White at knife point, his partner went through the victim’s pockets. The two men took the whiskey the victim had bought and Mr. White’s wallet containing $120.

Mr. White was asked if he could identify the assailant. He responded affirmatively and made an in-court identification of the appellant as the man who held the knife on him. Mr. White stated that he saw appellant’s face while appellant went through his pockets and the victim was able to describe with some detail appellant’s appearance at the time. He also stated that the transaction took approximately 25 minutes.

After the state rested, appellant testified that he was at home with his family the day the robbery occurred. Other members of his family substantially corroborated the appellant’s alibi.

The state, on rebuttal, placed Detective Bino Barefield, of the Birmingham Police Department, on the stand. Detective Bare-field, over the objections of the appellant, was allowed to testify that the victim identified appellant as his assailant from a pretrial lineup.

Appellant’s only contention on appeal is that appellant’s Sixth Amendment rights were violated in that he was improperly denied assistance of counsel during the pretrial lineup. Consequently, appellant argues that the trial court erroneously allowed into evidence the lineup identification testimony of Detective Barefield. Appellant never moved that the victim’s in-court identification be excluded.

Further, appellant never contended that the pre-trial lineup was in any way unduly suggestive or that there was any high risk of misidentification. The evidence suggests that the lineup was properly conducted. Detective Barefield testified that six black men, all dressed alike and all of roughly the same age, were used in the lineup. Mr. White spent only about one minute studying the participants before he emphatically picked appellant from the lineup. The lineup was conducted four days subsequent to the crime.

Appellant bases his contention on the United States Supreme Court’s mandate that a defendant is entitled to the assistance of counsel during certain pre-trial lineups. The court held in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, that this right does not attach until the time “adversary judicial proceedings” have been initiated against the defendant. Appellant in the present case had no attorney at the lineup.

On the day of the lineup, a Jefferson County judge issued a warrant for appellant’s arrest based on an information sworn by the victim in which the victim charged appellant with the crime of robbery. At least one case has held that issuance of such a warrant marks the beginning of an “adverse judicial proceeding” and consequently requires the assistance of counsel at a subsequent lineup or an intelligent waiver of such rights. United States ex rel. Robinson v. Zelker, 2d Cir., 468 F.2d 159 (1972).

However, assuming arguendo that such a warrant began prosecution for purposes of the Sixth Amendment, there is no evidence in the record that the warrant was issued before appellant was subjected to the lineup. Detective Barefield only testified that he met the victim at his office at City Hall and transported him to the City Jail for the lineup. The lineup occurred at 10:25 a. m. on February 13. The warrant of arrest did not have the time it was issued on it, but the warrant was not received in the Sheriff’s Office until 2:23 p. m., February 13. Appellant was apparently not booked at the County Jail until 7:55 p. m., February 13, 1980.

If any inference is to be drawn from the evidence at all, it appears more likely that the victim first identified appellant at the lineup at 10:25 a. m., and then swore out the arrest warrant. In any event, this court can only consider a case presented in the record and will not presume a fact not shown and make it ground for reversal. McGinnis v. State, Ala.Cr.App., 382 So.2d 605, cert. denied, Ala., 382 So.2d 609 (1980).

Moreover, even if we were to find that the warrant was issued before the lineup, which we cannot from the record, there is evidence from the record that appellant was advised of his right to counsel prior to the lineup but knowingly and voluntarily waived that right.

After being advised of his rights, appellant only stated that he wished to talk. He never indicated before the lineup that he wanted an attorney.

Alibi testimony, like all other conflicting evidence in a criminal prosecution, presents a question for the jury to resolve. Ala. Digest, Criminal Law, Key No. 739(2).

A careful search of the record reveals no error and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Mark CHAPMAN v. STATE.
    7 Div. 921.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    A1 Shumaker of Burns, Shumaker & Davis, Centre, for appellant.
    Charles A. Graddick, Atty. Gen. and Jan A. Wade, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

This is an appeal from the denial of a petition for writ of error coram nobis.

The defendant pled guilty to three indictments charging the offense of robbery. Alabama Code 1975, Section 13-3-110. Sentence in each case was eleven years’ imprisonment (to run consecutively).

Section 13-3-110 specifically provides that the punishment for robbery is “imprisonment in the penitentiary for not less than 10 years, or as otherwise specified by law.” Section 15-18-23 provides: “When no maximum limit to the duration of the imprisonment is prescribed by law, the court may, in its discretion, sentence the offender to imprisonment for the term of his natural life.”

Before accepting the guilty plea, the trial judge erroneously advised the defendant of the maximum punishment.

“THE COURT: All right, let me explain to you that under the law the range of punishment for a conviction for the offense of robbery is no less than ten years in the state penitentiary, and is there any limit?
“MR. BUTTRAM (Defense Counsel): No, sir.
“THE COURT: And the law does not impose a maximum number of years that could be imposed, which means you could receive any number of years in excess of ten upon a conviction for the offense of robbery.”

Two weeks after the guilty plea had been accepted, the defendant adjudged guilty and sentenced, the defendant was brought back before the court and the maximum sentence was properly explained to him.

“THE COURT: I explained to you the law in regard to the sentences that could be imposed for a conviction of robbery. I told you on that occasion that the range of punishment for the offense of robbery was from ten years in the state penitentiary to a period of time for which the statute mentioned no maximum time. In fact, the maximum period of time for the offense of robbery is life in the state penitentiary. I wanted to make that known to you and ask you if you still, with that information, wish to have your pleas of guilty entered in those cases.
“MR. CHAPMAN: Yes, sir.”

The defendant testified that no one told him he could withdraw his pleas of guilty and that it was his own impression that he could get the death penalty.

Defense counsel testified that he had advised the defendant of the proper minimum and maximum sentence prior to the entry of the guilty plea: “To the best of my knowledge, according to the sentences provided by law, I advised him it would be a minimum of ten up to life.” Defense counsel also indicated that, after the trial judge had incorrectly stated the range of punishment, “the Judge was going to instruct him further as to the limits of punishment as to these cases and if he didn’t desire to adhere to his plea of guilty that he could withdraw his plea of guilty and go to trial on it.”

Informing a defendant of the nature of the charge and the consequences of a guilty plea is a crucial element in fashioning an intelligent and voluntary waiver. The defendant must be informed of maximum and minimum possible sentences as “an absolute constitutional prerequisite to acceptance of a guilty plea.” Carter v. State, 291 Ala. 83, 85, 277 So.2d 896 (1973). However, the subjective beliefs of a defendant on the matter of how much sentence will be imposed, when unsupported by any promise from the State or indications by the court, are insufficient to invalidate a guilty plea. Bailey v. State, 375 So.2d 519, 521 (Ala.Cr.App.1979). The fact that the defendant pled guilty because he thought he would face the electric chair if he did not is insufficient, in and of itself, to warrant the granting of the writ. Brown v. State, 373 So.2d 1232 (Ala.Cr.App.1979).

The reason a defendant must be advised of the maximum sentence he could receive in pleading guilty is so that his plea will represent a knowing and intelligent choice among known alternatives. Here, the record shows that the defendant still wanted to plead guilty after learning the correct maximum sentence he could receive in each case. This removes any speculation as to what the defendant might have done had he been properly informed at the outset. The facts of this ease hardly afford any basis for a finding that the defendant was misled by the erroneous advice of the trial judge.

In a coram nobis proceeding the petitioner bears the burden of submitting clear, full and satisfactory proof. The degree of proof is “highly exacting” as to facts and “always means more than reasonably satisfying” the judge of the truth of his allegations. Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979). In reviewing the allegations contained in a petition for writ of error coram nobis, the trial court’s judgment is presumed correct as is the voluntariness of a guilty plea. Ware v. State, 44 Ala.App. 679, 219 So.2d 910 (1969); Champion v. State, 44 Ala.App. 660, 219 So.2d 416 (1969).

Our review convinces us that the guilty plea was voluntarily and intelligently entered by the defendant with a full understanding of the maximum punishment he could receive.

The fact that a defendant who has knowingly and intelligently pled guilty later becomes dissatisfied with the sentence he received does not constitute a ground for invalidating the guilty plea. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Thomas Glenn HARRIS v. STATE.
    8 Div. 582.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.

      James H. Tompkins, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton of McLain & Hampton, Sp. Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for assault with intent to murder. Alabama Code 1975, Section 13-1-46. Sentence was ten years and six months’ imprisonment.

I

The defendant argues that his motion to dismiss the indictment should have been granted because he was denied a speedy trial.

The initial warrant for the defendant’s arrest based upon the complaint of the victim is dated June 29,1979. The indictment was returned in January of 1980 and the defendant was tried in August of 1981.

After a hearing on the motion was held on the day of trial, the trial judge denied the motion for two reasons: (1) because there was no showing of any prejudice resulting from the delay and (2) because there was never any demand for a speedy trial. The motion to dismiss is not dated and the record does not indicate when it was actually filed. The trial judge made findings that the defendant had been represented by five different attorneys and that on more than one occasion defense counsel had requested a continuance.

After considering the facts of this case in light of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we find no error in the denial of the motion to dismiss. Tidmore v. City of Birmingham, 356 So.2d 231 (Ala.Cr.App.1977), cert. denied, 356 So.2d 234 (Ala.1978). The record supports the findings of the trial judge.

II

The trial judge did not err in failing or refusing to charge the jury on any lesser included offenses. This alleged error has not been preserved for review because there were no written requested charges on lesser included offenses submitted by the defendant. “(I)t is necessary, to present the action of the trial court in refusing special charges requested for review by this court, to show affirmatively by the record that the charges requested were in writing.” Gilbert v. State, 2 Ala.App. 94, 96, 57 So. 127 (1911); Alabama Code 1975, Section 12-16-18.

The refusal to instruct on lesser included offenses was not error for a second reason. The State proved a prima facie case of assault with intent to murder. The defense was alibi. Consequently, the defendant was either guilty of the crime charged in the indictment or he was guilty of nothing. An accused is not entitled to charges on lesser included offenses when he denies committing the crime itself. Williams v. State, 377 So.2d 634, 637 (Ala.Cr.App.), cert. denied 377 So.2d 639 (Ala.1979).

III

While a portion of Colbert County Sheriff’s Investigator Ronnie May’s testimony did constitute hearsay in that he was testifying to information which he had received from the victim, the overruling of defense counsel’s objection and motion to exclude was not reversible error. This same information had previously been adduced, without objection, when defense counsel on cross examination of the witness asked, “How do you explain that that bullet hole is there?” Furthermore, the victim had already testified to these same facts on both direct and cross examination. Under these circumstances, allowing Investigator May to testify to information that Mrs. Malone had given him was only harmless error where both Investigator May and Mrs. Malone had previously testified to the substance of this information before objection was made. Love v. State, 377 So.2d 8 (Ala.Cr.App.1979); Rule 45, Alabama Rules of Appellate Procedure.

IV

The defendant argues that the trial judge committed reversible error in her oral charge to the jury. From the record:

“If you are not satisfied beyond a reasonable doubt from the evidence that the Defendant assaulted Delores Malone with the intent to murder her you cannot find the Defendant guilty of the offense of Assault with Intent to Murder. I further charge you ladies and gentlemen of the jury, that if you believe the evidence in this case beyond a reasonable doubt and to a moral certainty you may not find the defendant not guilty. Ladies and gentlemen of the jury, all 11 of you must agree before you can reach a verdict in this case... I have no opinion as to the facts of this case and I don’t want you to think from anything that I have said in this charge or otherwise or ruling that I have made that I think one way or the other about the facts of this case.... If after you have considered all of the testimony — all of the evidence in the case and all proper and reasonable inferences therefrom you are satisfied beyond a reasonable doubt that the Defendant was guilty of the offense ... then it would be your duty to find him guilty and the form of your verdict would be: We, the Jury, find the Defendant guilty as charged. If on the other hand ladies and gentlemen of the jury, if after you have considered all of the testimony in this case, all the evidence and all reasonable and proper inferences therefrom, and the law as given to — as the Court has given it to you, if from all that you are not satisfied beyond a reasonable doubt that the defendant was guilty . .., then it would be your duty to find him not guilty and the form of your verdict would be: We, the Jury, find the Defendant not guilty.” (emphasis added)

At trial defense counsel made the following objection:

“And the defendant objects also to that part of the oral charge wherein the Court charged that if you believe beyond a reasonable doubt that the defendant is guilty of the offense as charged you cannot find the defendant not guilty.”

No matter how conclusive the evidence, the trial court may not direct a verdict of guilt in whole or in part. United States v. Ragsdale, 438 F.2d 21, 27, (5th Cir.), cert. denied, 403 U.S. 919, 91 S.Ct. 2231, 29 L.Ed.2d 696 (1971).

“(I)t was erroneous in the court below to charge the jury, that if they believed the evidence, they must find the defendant guilty. Such a charge can never properly be given, when there is any conflict in the evidence or any material question of fact in the cause.”
Arnold v. State, 29 Ala. 46, 50 (1856).

“The giving of the general affirmative charge for the State is of doubtful propriety. . .. Further, in criminal cases, the jury are the judges of fact, and the credibility of the witnesses is for the jury even if the evidence is without dispute.” Roberts v. State, 36 Ala.App. 491, 494, 59 So.2d 821 (1952); Brasher v. State, 21 Ala.App. 360, 108 So. 266 (1926). The defense in this case was alibi. Where there is evidence of an alibi offered by the defendant, the trial court may not instruct the jury that if they believe the State’s witnesses, the defendant is guilty. State v. Connelly, 5 N.J.Misc. 393, 136 A. 603 (1927); Anno., 72 A.L.R. 899, 910 (1927).

The charge should not have been given. Clemmons v. State, 167 Ala. 20, 52 So. 467 (1910); Amos v. State, 73 Ala. 498 (1883). However, the fact that isolated instructions are erroneous or misleading is no ground for reversal where the instructions as a whole present the case properly. Johnson v. State, 81 Ala. 54, 1 So. 573 (1886). Where a portion of the oral charge is erroneous or misleading, the whole charge may be looked to, and the entire charge must be construed together to see if there be reversible error. Gosa v. State, 273 Ala. 346, 139 So.2d 321 (1962); Baugh v. State, 218 Ala. 87, 117 So. 426 (1928); Stewart v. State, 381 So.2d 214 (Ala.Cr.App.), cert. denied, 381 So.2d 220 (Ala.1979); Standard v. State, 51 Ala.App. 176, 283 So.2d 627 (1973); Barber v. State, 11 Ala.App. 118, 65 So. 842 (1914).

Looking to the entire oral charge, we find that the objectionable character of the portion objected to was cured and that the objection advanced on appeal is not well taken. The misleading quality of the court’s instruction is self-correcting when considered in the context of the entire oral charge when the charge is considered as a whole and when each instruction is considered in connection with the others. We think it a reasonable assumption that the jury took a common sense view of the instructions and gave to them their plainly apparent meaning.

Additionally, we find that the objection made at trial misses its intended mark and fails to preserve any error for review. An exception to an oral charge must be taken and reserved to the particular language the exceptor conceives to be erroneous. Allford v. State, 31 Ala.App. 62, 65, 12 So.2d 404, cert. denied, 244 Ala. 148, 12 So.2d 407 (1943). “A reservation to a portion of the court’s oral charge must be specific and designating, rather than descriptive and referable.” Head v. State, 35 Ala.App. 71, 77, 44 So.2d 441 (1950). The exception must be “to a particular exactly designated statement of the judge.” Ferguson v. State, 24 Ala.App. 491, 492, 137 So.2d 315, cert. denied, 223 Ala. 521, 137 So. 317 (1931). “If parts of the charge are objectionable, it is incumbent upon the defendant to specifically point out the objectionable parts and to preserve an exception to the trial court’s failure or refusal to correct it.” Fuller v. State, 269 Ala. 312, 324, 113 So.2d 153 (1959).

“(T)he objector or exceptor should recite, or state the substance of that part of the court’s instructions to which the objection is made or the exception taken.” Crear v. State, 376 So.2d 778, 783 (Ala.Cr.App.), cert. denied, 376 So.2d 788 (Ala.1979); see also Jones v. State, 387 So.2d 284, 286 (Ala.Cr.App.1980). “(T)he exceptor must select and recite what was said, or state the substance of what was said, and thus, specifically bring to the attention of the trial court and this court the matter and ruling of which was made.” McClary v. State, 291 Ala. 481, 483, 282 So.2d 384 (1973).

“The reason for our rule that the exception be specific is to allow the judge to correct his error, if any, and to do so his approximate language should be quoted to him.” Orr v. State, 40 Ala.App. 45, 57, 111 So.2d 627, affirmed, 269 Ala. 176, 111 So.2d 639 (1959); Oates v. State, 375 So.2d 1285 (Ala.Cr.App.1979).

Here, the defendant’s objection to the court’s oral charge did not recite substantially or essentially what the trial court actually charged. The trial judge could properly have charged the jury on the principle made the basis of the defendant’s objection, that “if you believe beyond a reasonable doubt that the defendant is guilty of the offense as charged you cannot find the defendant not guilty.” Defense counsel’s objection merely stated that the jury must find the defendant guilty if they believed him guilty beyond a reasonable doubt. This objection would not have pointed out or called to the attention of the trial judge any objectionable portion of her oral charge. Harmon v. State, 23 Ala.App. 468, 126 So. 896 (1930); Dunn v. State, 8 Ala.App. 410, 62 So. 996 (1913).

The defendant did make specific objection to that portion of the trial court’s oral charge now complained of in his motion for new trial. Although the giving of such an instruction is a good ground for setting aside the verdict and granting a new trial, Crawford v. State, 44 Ala. 45 (1870), objections to portions of the court’s oral charge cannot be raised for the first time on motion for new trial. Gurley v. State, 216 Ala. 342, 113 So.2d 391 (1927).

For these reasons, the trial judge’s oral instructions to the jury do not constitute reversible error. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . The record reflects that one of the jurors was excused, with the consent of both the State and the defendant, after the trial had begun.


text:
    Ronnie Lee FAGAN v. STATE.
    8 Div. 598.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Charles M. Allen, II, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted for the offense of rape in the first degree. After one mistrial necessitated by a dead-locked jury, appellant was tried again and convicted as charged and sentenced by the court to 50 years imprisonment in the state penitentiary.

The prosecutrix testified that she had returned to bed at 7:30 a. m. on March 18, 1981, after seeing her husband and children off to work and school. She was awakened by a hand being clapped over her mouth by a man standing beside the bed. He then straddled her stomach, pinning her to the bed. The man wore panty hose and a mask over his face and was clothed in thermal “long john” bottoms. She noticed the man had an extremely bad body odor. As she struggled, she bit the assailant on the last two fingers of his left hand. He then threatened to beat her if she did not stop screaming. She then hid her face with her hands out of fright and embarrassment and the attacker sexually penetrated her. When he told her he had further plans, she became terrified and told him her sister was to arrive shortly. He then got up and told her not to leave the bed for 15 minutes, or he would “get” the prosecutrix and her children. He left the house at approximately 8:45 a. m. She stated she recognized the attacker as appellant, her next-door neighbor, by his voice and by his slumped manner of walking.

The victim’s husband testified he returned from work at 10:30 a. m. after receiving a call from his sister-in-law telling him of the attack on his wife. Shortly after he arrived, appellant appeared at his door, asking what, if anything, had happened. Appellant appeared to be trembling, and was so nervous he could hardly speak. He also had a rag wrapped around the last two fingers on his left hand. Appellant told the prosecutrix’s husband he had gone to work that day, but had returned home at 9:00 a. m.

Sheriff Grady Rose picked up appellant after receiving the identification from the prosecutrix. Sheriff Rose stated the appellant had a strong odor about him. Appellant had a band aid which covered a jagged cut on his left little finger, as well as scratches on his arms. After obtaining written permission from appellant to search his house, the Sheriff found the bottom portion of a pair of thermal underwear in the bathroom showing what appeared to be bloodstains.

Blood samples from the victim’s sheets and semen stains found on the victim’s clothing matched the ABO system analysis of the appellant’s blood. The appellant’s and the victim’s blood type differed, with appellant being type 0 and the victim type A.

Appellant contends that he was custodially questioned by Deputy Randy Forrester without the benefit of a second Miranda warning, and hence the trial court’s failure to exclude his statement to Forrester was reversible error. This issue has not been preserved for review, however, because appellant failed to object to the introduction of the evidence at trial. Murry v. State, 367 So.2d 985 (Ala.Cr.App.) cert. denied, 367 So.2d 989 (Ala.1979). Even had appellant properly objected to the introduction of the evidence, his complaint still would have been for naught. The evidence clearly shows appellant was given his Miranda rights by Officer Hancock, and that appellant stated he understood his rights and was willing to talk with the officers. Appellant’s statement to Deputy Forrester occurred not later than three and one-half hours after the Miranda warnings were given to him by Officer Hancock. This court has repeatedly rejected the proposition that the failure to repeat the Miranda warnings before each separate interrogation, when the same has once been given and a waiver made, precludes the admission into evidence of any inculpatory response. Smoot v. State, 383 So.2d 605 (Ala.Cr.App.1980). Whether the Miranda warning must be repeated depends upon the facts of each individual case, with the lapse of time and the events which occur between interrogation being relevant factors to consider. Smoot, supra; Jones v. State, 47 Ala.App. 568, 258 So.2d 910 (1972). Neither the time lapse nor the events occurring in the intervening time period were excessive or so out of the ordinary as to have required repetition of the Miranda warnings. Love v. State, 372 So.2d 414 (Ala.Cr.App.1979).

Appellant contends that the fifty-year prison sentence imposed by the trial judge for his conviction of rape in the first degree was excessive, and thereby cruel and unusual punishment. § 13A-6-61(b) Code of Alabama 1975 designates rape in the first degree as a Class A felony. Class A felonies are punishable by prison terms of life or not more than 99 years or less then 10 years imprisonment. § 13A-5-6(a)(l) Code of Alabama 1975. Where punishment is properly imposed within the limits defined by the punishing statute, this court is without jurisdiction to review the punishment. Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), 392 So.2d 1266 (Ala.1981).

No error injurious to the substantial rights of appellant having been demonstrated, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: BARRON, Judge.

text:
    Rickey W. ALLEN v. STATE.
    8 Div. 632.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    James D. Walker, Albertville, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Petitioner appeals from the denial of a petition for writ of error coram nobis by the Circuit Court of Marshall County on October 12, 1981.

Petitioner had sought to challenge his pleas of guilty on April 29, 1975, to two charges of forgery and one charge of grand larceny (for which he received sentences totaling twelve years) on the grounds that his court-appointed attorney did not adequately represent him and exerted improper pressure on him to plead guilty.

The Circuit Court, on its own motion and without a hearing on the merits, denied the petition.

The order of the Circuit Court denying the petition is hereby reversed and the cause is remanded with directions in compliance with Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981).

REVERSED AND REMANDED WITH DIRECTIONS

All the Judges concur.


author: LEMMON, Justice. MARCUS, Justice BLANCHE, Justice CALOGERO, Justice.

text:
    Edward T. URSIN, II and National Indemnity Company v. INSURANCE GUARANTY ASSOCIATION
    No. 81-C-0850.
    Supreme Court of Louisiana.
    Oct. 16, 1981.
    On Rehearing April 5, 1982.
    Rehearing Denied May 14, 1982.
    Sera H. Russell, III, Calvin E. Hardin, Jr. of Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for plaintiffs-applicants.
    Charles A. Schutte, Jr., of Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendant-respondent.
   LEMMON, Justice.

This litigation involves an attempt by an excess automobile liability insurer to recover from the Insurance Guaranty Association (LIGA) the amount of the primáry limits owed by the insured and the bankrupt primary insurer, which the excess insurer paid as part of a compromise that it negotiated.

The tort victim of an automobile accident filed suit against (1) Edward Ursin, (2) Manchester Insurance and Indemnity Company, Ursin’s primary liability insurer with $5,000 policy limits, and (3) National Indemnity Company, Ursin’s excess insurer with policy limits of $95,000 in excess of the primary insurance limit. Manchester, because of financial difficulties, was unable to provide a defense for Ursin or to contribute to any settlement.

Ursin and National eventually compromised the suit for the total amount of $75,-000, with National paying the entire amount, including the first $5,000 owed only by Ursin and Manchester. Ursin and the claimant executed separate assignments to National of their rights against Manchester, and Ursin authorized National, “acting in its own name or in my name”, to assert the claim against Manchester and “any other person, firm, organization, insurance fund, or agency who may be liable therefor”. Ursin also agreed to pay over to National any payments received in connection with the claim, up to $5,000.

Six months later Manchester was adjudged insolvent and placed in receivership. LIGA assumed responsibility for Manchester’s outstanding obligations for covered claims, as defined in the Insurance Guaranty Association Law, R.S. 22:1375 et seq.

Ursin then filed this suit to recover the $5,000 owed by Manchester in the original litigation and paid by National in the compromise. After an exception of nonjoinder of an indispensable party, National was joined as party plaintiff.

Both sides filed motions for summary judgment, which were submitted on stipulated facts. The trial court rendered judgment in favor of National for $5,000 and in favor of Ursin for attorney’s fees. LIGA appealed the judgment as to National only.

The court of appeal reversed the judgment in favor of National, holding that National’s claim was not a covered claim because of the exclusion in R.S. 22:1379(3), which defines covered claims. 396 So.2d 400 (La.App.). We granted National’s application to review that judgment. 399 So.2d 619 (La.).

The purpose of the Insurance Guaranty Association Law is to avoid delays in payment and financial loss to policyholders and claimants when an insurer becomes insolvent. See R.S. 22:1376. National commendably accomplished that exact goal in this case, while at the same time furthering its own interest by completing a total compromise.

While conceding that Ursin would be entitled to recover the $5,000 if he (or someone on his behalf other than an insurer) had made the payment, LIGA contends that National (standing in Ursin’s shoes as his as-signee) is precluded from recovery by the literal terms of the statute. LIGA argues that the legislative intent of the Insurance Guaranty Association Law was to benefit policyholders and claimants, and not to provide relief to insurance companies which have paid claims that might otherwise qualify as covered claims.

The exclusion of insurers’ claims in R.S. 22:1379(3) was clearly intended to prevent an insurer from paying a claim that it was obliged to pay under its policy and then recovering all or part of that payment from LIGA upon the insolvency of another insurer who was also obliged to pay the same claim under another policy. If recovery of such claims by insurers were allowed, then the insurer would receive a windfall at the expense of the Fund, without any benefit whatsoever to policyholders or claimants.

That reasoning, however, has no applicability to the situation in the present case, in which an insurer has paid a claim it was not obliged to pay and has done so for the benefit of its policyholder and the tort victim (although admittedly there was some benefit to the insurer). Under these circumstances National was not acting as an insurer within the contemplation of the Insurance Guaranty Association Law and should not be held to the literal terms of that provision of the law which prevents recovery of an otherwise covered claim by an “insurer”.

Moreover, compromises are favored in law and are to be encouraged. The decision under review discourages compromises for no reason other than adherence to the literal terms of a statute whose purpose is not served by the decision.

We conclude that National, as assignee of Ursin’s claim, should be entitled to recover the amount unquestionably due to Ursin and that the intent of R.S. 22:1379(3) was not to preclude such recovery under the circumstances of this case.

Accordingly, the judgment of the court of appeal is reversed, and the judgment of the trial court is reinstated.

BLANCHE, J., dissents for reasons assigned.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I agree with the court of appeal that National’s claim is not a “covered claim” because of the exclusion in La.R.S. 22:1397(3) which provides:

‘Covered claim’ shall not include any amount due any ... insurer ... as sub-rogation recoveries or otherwise.

National is an insurer who was subrogat-ed to the claim of Ursin. Hence, its claim is not a “covered claim.” The statute could not be clearer.

Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The determining factor concerning whether LIGA should pay is whether the claim against it is by an insurer. R.S. 22:1379(3) prevents insurers from recovery against the fund regardless of the method by which the insurer acquires its claim. The court of appeal opinion was correct and we should not have granted the writ.

On Rehearing

CALOGERO, Justice.

We granted this rehearing to reconsider the question of whether an insured’s excess automobile liability insurer can recover $5,000.00 from the Louisiana Insurance Guaranty Association (LIGA), the amount of the limits of the primary liability policy which the excess insurer paid on behalf of the insured because of the insolvency of the primary insurer, in order to effect a settlement with the injury claimant.

National Indemnity Company, an excess liability insurer with $95,000.00 policy exposure (because liable for damages over the $5,000.00 primary limits), was sued by an injured claimant. Also joined in the suit were Edward T. Ursin, II, National’s insured, and Ursin’s primary liability insurer, Manchester Insurance and Indemnity Company. Because Manchester became insolvent and because of National’s exposure on. the claim (along with its insured’s exposure for the first $5,000.00 as well as any amount over $100,000.00) National effected a settlement with plaintiff for a total of $75,000.00, paying that amount in full and securing releases for itself and for its insured, Ursin. Coincident therewith, National took an assignment from Ursin of his claim against “Manchester Insurance and Indemnity Company, or any other person, firm, organization, insurance fund or agency who may be liable therefor.”

The trial court ruled in favor of National, permitting them to recover the $5,000.00 from LIGA. The Court of Appeal reversed, disallowing the recovery.

Whether National can recover from LIGA turns on the narrow question of whether National’s $5,000.00 claim is a “covered claim” under the Insurance Guaranty Association Law, that is, whether this is the type of claim the law requires that LIGA must pay. La.R.S. 22:1375 et seq. It is specifically provided within the Insurance Guaranty Association Law that a “ ‘covered claim’ shall not include any amount due any . . . insurer ... as subrogation recoveries or otherwise.”

On original hearing we reversed the Court of Appeal and allowed National to recover from LIGA. We held that because of the nature of National’s claim it was a “covered claim”; it was not an “amount due any . .. insurer ... as subrogation recoveries or otherwise.”

We granted this rehearing to reconsider the question, being persuaded by the argument that the language in that provision is clear and unambiguous and that it specifically bars National’s claim against LIGA.

Because insurer insolvencies were presenting a serious problem to the consuming public as well as the insurance industry, the Legislature in 1970 enacted the Insurance Guaranty Association Law. La.R.S. 22:1375 et seq. The LIGA Law was drawn with the help of a model act adopted by the National Association of Insurance Commissioners. Similar statutes have also been adopted in most other states.

The designated purpose of the Insurance Guaranty Association Law is “to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers. La.R.S. 22:1376. The LIGA fund is created to protect insureds and claimants in instances when the insurer becomes insolvent. The fund is administered by a non-profit, unincorporated legal entity, Insurance Guaranty Association, to which all member insurers [“all kinds of direct insurers except life, health and accident, title, disability, mortgage guaranty, and ocean marine insurance” (La.R.S. 22:1377)] shall be and remain members as a condition of their authority to transact business in the state. La.R.S. 22:1380.

The fund is supported by assessments against member insurers in amounts necessary to pay claims against insolvent insurers. The assessments are made in proportion to the net direct written premiums of the member insurers for the preceding calendar year. La.R.S. 22:1382(l)(c)(l). The member insurers in turn pass on the assessment costs to their insureds through premiums, which causes the effect of an insurer’s insolvency to be borne by all insureds rather than only by the insolvent insurer’s policyholders and/or claimants. Because of the added burden this places on policyholders generally, the Insurance Guaranty Association Law contains certain provisions to minimize these costs.

One such provision, La.R.S. 22:1386, entitled “Non-duplication of Recovery,” provides essentially that a person having a claim against an insurer under any provision in another insurance policy is required first to exhaust his rights under such other policy. It further provides that any amount owed by LIGA on a covered claim shall be reduced by the amount of any recovery under that other insurance policy.

La.R.S. 22:1382(l)(a) limits LIGA’s obligation on most claims to $50,000.00. (There is an exception to that limitation for claims on a workmen’s compensation policy.)

Also, La.R.S. 22:1379(3), the provision involved in this case, defines “covered claim” (those claims LIGA will be obligated to pay) and specifically excludes from that definition “any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise.”

While we have had occasion to consider La.R.S. 22:1386, the non-duplication of recovery provision, this is the first case wherein we have been called upon specifically to review La.R.S. 22:1379(3), the provision directed at denying claims by insurers.

The precise question confronting us in this case is whether La.R.S. 22:1379(3), excluding from the definition of covered claims any amount due an insurer as subro-gation or otherwise, bars from recovery against LIGA, National’s claim as assignee of Ursin’s rights.

Originally, we were of the view that the Legislative intent behind the enactment of La.R.S. 22:1379(3) was to prevent recovery or receipt of a “windfall” by an insurer who has paid a claim it was obligated to pay under its own policy. On that premise, National’s claim would not be barred because National arguably had paid not an amount it was legally obligated to pay, but rather the $5,000.00 amount Ursin alone was obligated to pay. And further we felt that the public policy favoring compromise of claims would better be served by permitting National’s recovery from LIGA in this instance.

Upon reconsideration, we have determined that our opinion on original hearing was incorrect. We now conclude that National’s claim against LIGA is not a “covered claim” because of the clear and unambiguous language of La.R.S. 22:1379(3). National’s claim against LIGA is indeed “any amount due any ... insurer ... as subrogation recoveries or otherwise.”

LIGA argues that under the definition of legal subrogation contained in La.C.C. 2161, National’s claim is that of a legal subrogee and thus not within the definition of a covered claim, because it is an amount due an insurer as a subrogation recovery. They rely on the case of Maryland Casualty Co., v. Marquette Casualty Co., 143 So.2d 249 (La.App. 4th Cir. 1962) in support of this argument. Maryland held that the excess insurer was legally subrogated to the insured’s claim against the primary insurer under La.C.C. art 2161 where the excess carrier had paid the part of the claim owed by the primary carrier.

National, on the other hand, argues that their claim against LIGA is not a subrogation claim. They contend that their claim is based upon an assignment, in which Ursin assigned his rights against LIGA to National. National thus contends that their claim is a covered claim because it is based upon as assignment rather than subrogation.

Although LIGA’s contention is not without possible merit, because we find that National’s claim is excluded from the definition of a covered claim even if it is simply an assignment and not a subrogation, we find it unnecessary to consider whether the National claim is perhaps also one in subro-gation.

As stated above, “any amount due any ... insurer ... as subrogation recoveries or otherwise” is excluded from the definition of a covered claim. The language used is very broad and seems to encompass amounts due an insurer for any reason whatsoever.

The Court of Appeal relied on Black’s Law Dictionary and Webster’s New World Dictionary for a definition of “otherwise” and correctly concluded that “otherwise” generally means “in another or different manner.” Therefore, an amount due an insurer as subrogation recoveries, or in a different manner, would be excluded from the definition of a covered claim. Clearly, National’s claim falls within the phrase “subrogation recoveries or otherwise” because if the claim is not payable as subrogation recovery it is payable in a different manner, in this case, by virtue of an assignment.

Finally, National argues that the term “insurer” as used in the provision was only intended to mean an insurer who has paid a claim it was obligated to pay because of a policy it has issued. We do not find that such an interpretation is supported by the statute. The statute merely refers to any amount due any insurer. When National entered into the settlement for $75,-000.00 it did so, at least in part, in order to avoid the risk of being held liable for a greater amount, up to its policy limits of $95,000.00. In settling the claim and simultaneously taking the assignment from Ur-sin, National was very much acting in its role as an insurer. As noted by the Court of Appeal, had National not been acting as an insurer it would not have agreed with the tort victim to pay the $75,000.00 while taking the assignment from Ursin.

Despite the fact that we resolve the legal issue before us favorably to LIGA because of what we construe to be a clear statutory provision, we nevertheless feel constrained to point out some problems with the scheme of the Insurance Guaranty Association Law. There are anomalies within it which preclude a cohesive overall scheme. The result, in terms of when LIGA will be required to pay, often may well depend upon the ingenuity of the parties involved.

For instance, in the present case, LIGA could have been made to bear this very loss had National and Ursin simply proceeded differently. Ursin, as an insolvent insured and a person whom the law was specifically designed to protect, could certainly have recovered the $5,000.00 from LIGA. The objective in the settlement might have been served by having National loan Ursin $5,000.00 while taking a promissory note. Furthermore, had any person other than an insurer paid the $5,000.00 and taken the assignment from Ursin, that person would also likely have been allowed to recover from LIGA. It is only because National is an insurer that its claim is barred by the statute.

Furthermore, an insurer (for instance, an automobile carrier who has paid a collision claim) with subrogation rights against a tortfeasor who has an insolvent insurer, could sue and collect from the tortfeasor insured and in the process expose LIGA to having to reimburse the tortfeasor insured for that sum. Unlike some other states our legislature has not seen fit to amend the act and include a provision that prohibits suit against the insured of an insolvent insurer by such a subrogated insurer.

Similarly there are problems regarding the “Non-duplication of Recovery” provision, which affects the entitlement of claimants. La.R.S. 22:1386. Because this provision is not sufficiently explicit, and to avoid the circuitous claims that would effect the same result, this Court has held that medical pay insurance, a collateral source of recovery to the claimant, does not bar the claimant’s recovery from LIGA or reduce it, and this notwithstanding the “Non-duplication of Recovery” provision. Harris v. Lee, 387 So.2d 1145 (La.1980). Also, while not allowing claimant double recovery this Court in Hickerson v. Protective Nat. Ins. Co., 383 So.2d 377 (La.1980), nonetheless did allow the claimant to recover his injury claim fully against LIGA without first having to proceed against his uninsured motorist carrier. The reason apparently was that to require otherwise would simply encourage circuitous procedures resulting in LIGA’s ultimate exposure for the same loss. (For instance, the UM carrier might pay the claimant and recover from the tortfeasor, with the tortfeasor securing reimbursement thereafter from LIGA.) See also Billeadeau v. Lemoine, 386 So.2d 1359 (La.1980). Interestingly, other states, with similar provisions, have gone the other way, finding that the availability of payments from an uninsured motorist carrier barred or reduced recovery from LIGA under their “Non-duplication of Recovery” provisions. King v. Jordan, 601 P.2d 273 (Alaska 1979); Prutzman v. Armstrong, 579 P.2d 359 (Wash.1978).

Be that as it may, the question presented in this case is a simple one involving only La.R.S. 22:1379(3), and we have answered it simply; National is an insurer whose claim is barred because it is a “subrogation recover[y] or otherwise.”

As succintly stated in the well reasoned opinion of the Court of Appeal:

Certainly there are reasons not lacking in wisdom to urge that the statute be amended to remove or modify the exclusionary language. On the other hand, we are aware of the possibility that the legislature may have had sound reasons for desiring precisely the result which we have reached under this factual situation, that is, finding no coverage. In any event, establishment of legislative policy is a matter that addresses itself to the legislature, not to the courts. We cannot interpret the statute beyond its clear and unambiguous language.

Therefore, we conclude that La.R.S. 22:1379(3), in excluding from the definition of a “covered claim” “any amount due any . .. insurer ... as subrogation recoveries or otherwise”, is clear and unambiguous and bars National’s claim against LIGA, notwithstanding that National’s claim is based on the assignment by Ursin of his rights against LIGA.

Decree

For the foregoing reasons, we reverse our original opinion and affirm the Court of Appeal opinion which held that National Indemnity Company could not recover the $5,000.00 from the Insurance Guaranty Association.

ORIGINAL OPINION REVERSED; JUDGMENT OF THE COURT OF APPEAL REINSTATED.

LEMMON, J., dissents.

WATSON, J., dissents, holding that the original opinion was correct.

      . R.S. 22:1379(3) provides:
      “As used in this Part:
      * # * III * *
      “(3) ‘Covered claim’ means an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Part applies issued by an insurer, if such insurer becomes an insolvent insurer after September 1, 1970 and (a) the claimant or insured is a resident of this state at the time of the insured event; or (b) the property from which the claim arises is permanently located in this state. ‘Covered claim’ shall not include any amount due any reinsurer, insurer, insurance pool or underwriting association, as subrogation recoveries or otherwise.”

      . We have considered R.S. 22:1386 in the following cases: Harris v. Lee, 387 So.2d 1145 (La.1980); Billeaudeau v. Lemoine, 386 So.2d 1359 (La.1980); and Hickerson v. Protective Nat. Ins. Co., 383 So.2d 377 (La.1980).

      . In Florida, for example, the following provision was added to their statute in 1977:
      Member insurers shall have no right of subrogation against the insured of any insolvent member. F.S.A. § 631.54(4).

      . That is LIGA ultimately bearing the loss because required to reimburse the tortfeasor when the tortfeasor is sued by the claimant, notwithstanding that the claimant has previously recovered from his med pay insurer.


author: DIXON, Chief Justice. BLANCHE, Justice

text:
    Beverly Ann Samuelson KATZ v. Norman Edward KATZ.
    No. 81-C-2011.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.
    Charlotte A. Hayes and A. D. Freeman, of Satterlee, Mestayer & Freeman, New Orleans, for plaintiff-applicant.

      Maury A. Herman, of Herman & Herman, New Orleans, for defendant-respondent.
   DIXON, Chief Justice.

On the application of plaintiff, Beverly Ann Samuelson Katz, we granted writs to consider the ruling of the court of appeal in denying plaintiffs motion to dismiss the appeal.

Plaintiff, separated (and subsequently divorced) from her husband, Norman Edward Katz, filed this action for a declaratory judgment, seeking to establish that property purchased by her husband, Norman Edward Katz, prior to the separation was property of the community (formerly) existing between them.

Plaintiff’s petition named her husband, Norman Edward Katz, his sister, Ellen Katz Miller, their father, Solomon Katz, and the Columbia Homestead Association as defendants. Maury Herman filed an answer on behalf of all the defendants and exceptions on behalf of all except Norman.

Reasons for judgment were rendered on December 23, 1980, and a judgment in the case was rendered, signed and filed on the same day declaring in favor of the plaintiff and against the defendant, Norman Edward Katz, that the property involved belonged to the community formerly existing between Beverly and Norman Katz.

On January 5, 1981, within the delay for applying for a new trial (C.C.P.1974), the attorney for Norman Katz filed a motion styled “Motion to Amend Judgment.” The grounds for the motion were stated: “The Court has failed to render a judgment against all of the defendants, namely, Solomon Katz, Ellen Raye Miller and Columbia Homestead Association ...” The motion contains a certificate that it had been served by mail on the attorney for Beverly. On February 2, 1981, the trial judge signed a “Supplemental Judgment” which stated only that:

“The Judgment of December 23, 1980 is hereby supplemented as follows:
IT IS ORDERED, ADJUDGED AND DECREED that the proceedings brought against Columbia Homestead Association and Ellen Raye Miller be and they are hereby dismissed.
JUDGMENT, READ, RENDERED AND SIGNED this 2nd day of February, 1981 at New Orleans, Louisiana.”

On February 6, 1981, the plaintiff filed a “Motion to Recall Supplemental Judgment,” contending that there was no authority for “supplementing” the judgment of December 23,1980. A written opposition to that motion was filed on behalf of Norman Katz in which he pointed out that he had requested, in his motion to amend, a reservation “that Norman Katz’s rights to file for a new trial would be preserved.”

On February 10, 1981, a “Motion to Amend Supplemental Judgment” was filed, noting that the trial judge had “inadvertently failed to dismiss Solomon Katz,” one of the named defendants. On April 8, 1981 a “Second Supplemental Judgment” was signed which stated:

“The judgments of December 23, 1980 and February 2, 1981 are hereby supplemented as follows:
IT IS ORDERED, ADJUDGED AND DECREED that the proceedings brought against Solomon Katz be and they are hereby dismissed.
JUDGMENT READ, RENDERED AND SIGNED this 8th day of April, 1981 at New Orleans, Louisiana.”

On May 12 plaintiff filed a “Motion to Recall the Supplemental Judgment,” claiming that it was a “nullity.” Plaintiff had already filed a “Motion for a New Trial” on April 16, 1981, claiming error in the substance of the trial court’s judgment. That motion was met with an “opposition” and a memorandum on May 12. The opposition to the motion for a new trial claimed that the December 23, 1980 judgment had become final, since the judgment of December 23, 1980 must be considered as having dismissed plaintiff’s demand against those defendants not mentioned in the judgment, because demands passed over in silence in the final judgment are considered rejected in the absence of a special reservation. Plaintiff contends that Norman Katz’ time to take an appeal from the December 23, 1980 judgment had long since passed.

Upon the rejection of a motion for a new trial filed by the defendants, they appealed. The appeal was met with a motion to dismiss the appeal on the same grounds stated in the opposition to a motion for a new trial.

The ruling of the court of appeal on the motion to dismiss the appeal stated only: “From our consideration of the motion to dismiss the appeal and the response thereto we conclude the appeal from the judgment as amended was timely filed.” Writs were granted on plaintiff’s application because it appeared that plaintiff’s judgment might have become final before an appeal was taken.

The judgment did not become final. Defendant is guilty only of using the wrong words in what was, in effect, consecutive motions for new trials.

The delays for taking an appeal run from the expiration of the delay for applying for a new trial, or from the refusal to grant a timely application for a new trial, or from the notice thereof.

Defendant entitled each of his motions subsequent to the judgment as motions to amend the judgments. There is no statutory provision interrupting the time for taking an appeal by the filing of a motion to amend a judgment. Motions to amend are treated in C.C.P.1951:

“A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.”

The substance of defendant’s motions to amend was to add language to indicate that proceedings against three other defendants had been dismissed. Such a ruling was not a change “merely to alter the phraseology of the judgment” nor to “correct errors of calculation.” The dismissal of an act against defendants could very well be, in a proper case, such as this, a matter of substance. Although the defendant actually requested an “amendment,” what he spelled out in his motion was that the action against the three remaining defendants should be dismissed. Plaintiff has not been prejudiced by the use of such language in any way. Each motion was filed within the delay granted for a motion for a new trial, and plaintiff was promptly notified.

“The delay for applying for a new trial shall be seven days, exclusive of legal holidays-” (C.C.P.1974). The first judgment was rendered on December 23, 1980. On January 5, 1981 defendant filed his first motion to amend. Holidays intervened, and a motion for a new trial would have been timely. After the “supplemental” judgment was rendered on February 2, 1981, a second motion to amend was filed on February 10. Legal holidays intervened, and a motion for a new trial would have been timely. The motion to amend on February 10 was also served promptly on the plaintiff.

No action of the defendant caused the omissions from the original judgment. Judgments in this district, we are informed, are prepared in the office of the judge. The second correction was made necessary because one of the three omitted defendants was also left out of the first “supplemental” judgment.

“Every pleading shall be so construed as to do substantial justice.” (C.C.P. 865). The source provision of this article was, according to the Official Revision Comments, “. .. a constant reminder . . . that pleading is not an end in itself but merely a means to an end, ...” For the last quarter of a century, continues the comment, the decisions of Louisiana courts have been in accord with the philosophy that technical objections and harsh rules of pleadings should never be favored. Each pleading should be so construed as to do substantial justice. Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976); Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971). To deny a litigant the right to appeal because the pleading is wrongly captioned would be harsh and unjust. The ruling of the court of appeal was correct.

The judgment of the court of appeal on the motion to dismiss the appeal is affirmed, at relator’s cost, and the case is remanded to the court of appeal for further proceedings.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent.

The motions to amend filed by Norman Katz in no way concern the merits of this declaratory action, and cannot be given the effect of motions for a new trial.

In its judgment rendered on December 23, 1980 the trial court decreed that the property at issue was community in nature. The substance of this judgment was unaltered by the requested amendments noting that suit was dismissed against Columbia Homestead, Ellen Raye Katz Miller and Solomon Katz.

Filing of the motions to amend did not interrupt the running of the delays for the filing of a motion for a new trial. Because all delays had elapsed and the judgment had become final before the filing of Norman Katz’s appeal, that appeal should be dismissed as untimely.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Leona TRAHAN.
    No. 81-KA-2062.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing' Denied May 14, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jerry G. Jones, Dist. Atty., Glenn W. Alexander, Asst. Dist. Atty., for plaintiff-appellee.
    John F. McKay, of Cave & McKay, Baton Rouge, for defendant-appellant.
   DIXON, Chief Justice.

On September 15, 1980 defendant, Leona Trahan, was charged by separate bills of information with three counts of distribution of marijuana in violation of R.S. 40:967. An initial plea of not guilty was entered by defendant; however, on April 20, 1981, defendant withdrew the plea and pleaded guilty to two counts. The state dismissed the third count. On June 1, 1981 the trial court sentenced defendant to serve six years in the penitentiary on each count, the sentences to run concurrently. Defendant appeals the convictions asserting three assignments of error.

Assignment of Error No. 1

Defendant contends that the trial court erred in accepting her guilty plea because she was mentally incompetent to plead guilty. It is argued that the accused could not understand the nature of the proceedings against her or the consequences of pleading guilty, nor could she validly waive her constitutional rights.

Defense counsel attached a letter from Dr. Victor A. Henry to the brief filed in this court in which the doctor discussed his impressions of defendant’s mental condition after examining her on June 11, 1981. He concluded the accused had become increasingly despondent and paranoid since her interracial marriage. His diagnosis was paranoid schizophrenia; in his opinion, defendant was “in need of continuous treatment at this time.”

The record reveals that the trial court thoroughly advised defendant in the presence of retained counsel of the nature of the charges and that defendant stated she understood the consequences of entering a guilty plea. She admitted the crimes charged and acknowledged that she understood the offense carried a penitentiary term. After defendant assured the court that the plea was entered without inducement, threats or force, the court found that the plea was made freely and voluntarily. Moreover, Dr. Henry’s report indicates that, although the accused suffered from mental illness, she was well oriented and her thought processes were logical, relevant and coherent.

The trial court’s finding is supported by the record; there is no showing that a mental impairment rendered defendant incapable of knowingly and intelligently pleading guilty.

This assignment lacks merit.

Assignments of Error Nos. 2 and 3

Defendant argues that the trial court failed to comply with the sentencing guidelines in C.Cr.P. 894.1 and that the sentences imposed are excessive.

C.Cr.P. 894.1 sets forth guidelines to follow in imposing sentence and mandates that the trial judge state for the record the considerations taken into account and the factual basis for his conclusions in imposing sentence in order to assure that each sentence is individualized to the offender as well as the offense. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Jones, 398 So.2d 1049 (La.1981). The trial judge need not articulate every aggravating and mitigating circumstance; however, the record must reflect that he adequately contemplated the guidelines in C.Cr.P. 894.1. State v. Grey, 408 So.2d 1239 (La.1982); State v. Franks, 373 So.2d 1307 (La.1979), cert. denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818 (1981). Some factors to be considered include the accused’s personal history, prior criminal record, the seriousness of the offense, the likelihood that another crime will be committed, and the potential for rehabilitation. State v. Jones, supra; State v. Jackson, 360 So.2d 842 (La.1978).

At the sentencing hearing, the trial court observed that the facts of the arrest indicated defendant was an active dealer in a large volume of marijuana. According to one of the undercover agents involved in purchasing the marijuana, defendant was one of the largest dealers in Cameron Parish. Based on the recommendation in the report that if the accused received a suspended sentence or probation, she would continue to sell marijuana, the court concluded there would be an undue risk that defendant would commit another crime during probation. Also, the court stated that many of defendant’s customers were young people and that “the attention of these impressionable youngsters and other segments of the community will be directed to the sentence received by defendant.” Although aware that defendant was a first offender, the court considered this factor to be offset by the notoriety and gravity of the crimes. The trial court adequately complied with the sentencing guidelines in C.Cr.P. 894.1; therefore, this court’s review is limited to a determination of whether the trial court abused its sentencing discretion. State v. Bourgeois, supra; State v. Bosworth (La.1981), No. 80-KA-1619.

The maximum penalty for distribution of marijuana is imprisonment at hard labor for ten years and a fine of $15,000. R.S. 40:967(B)(2). Even though within the statutory limit, a sentence may violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979); La.Const.Art. 1, § 20 (1974). Defense counsel informed the court at the sentencing hearing that defendant is forty-five years old, has no prior record, and is taking care of her ailing father. The presentence investigation report reveals that she has a seventh grade education and, although not presently employed, has held various jobs in the past. She has a twenty-five year old daughter from a former marriage who lives in Texas. A sixteen year old stepson resides with her and her husband. It was not suggested at the hearing that any mental infirmity played a part in the commission of the crimes charged.

Although a harsh sentence for a first offender involved in the possession or sale of a small quantity of contraband may be excessive under certain circumstances, State v. Grey, supra; State v. Tilley, 400 So.2d 1363 (La.1981), the presentence investigation report indicates that defendant was selling much more than a small quantity of marijuana. Two neighbors, Ray Frederick and Pete Miller, witnessed numerous people visiting defendant’s residence at all hours of the day and night who only stayed a few minutes. Sheriff James Savoie stated that the house had been watched for a long time and that the accused was selling marijuana to young people. The facts of the arrest demonstrate that defendant sold marijuana on three separate occasions and that she fully intended to “get rid of” the entire garbage bag of contraband by selling it.

In State v. Jacobs, 383 So.2d 342 (La.1980), the defendant sold marijuana on two separate occasions to different people. He was charged with two counts of distribution of marijuana and one count of possession with intent to distribute. The trial court sentenced the accused to serve ten years at hard labor and to pay a fine of $1000 on each distribution charge, the sentences to run concurrently. On the third count of possession, a sentence of six months in the parish jail plus a fine of $500 was imposed, this sentence to run consecutively with the other sentences. This court affirmed the sentences, finding that they were not excessive. The two sales were a year apart, the second while the defendant was out on bail after the first. The consecutive sentence (for possession with intent to distribute) was for possession of a quantity at the time of the arrest for the second sale. The convictions did not arise out of the same course of conduct within a relatively short period of time.

In the instant case, defendant sold marijuana at different times, advising the purchasers to return at any time that they wanted to buy contraband. Although not spread over as long a period of time as seen in State v. Jacobs, supra, defendant’s activity was certainly not conducted on an isolated basis. The sentences imposed by the trial court were well below the statutory maximum for distribution of marijuana; the trial judge did not abuse his wide discretion in imposing these sentences.

For these reasons, defendant’s convictions and sentences are affirmed.

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Twenty-Fourth Judicial District Court and Edward A. Dufresne, Jr. of the Twenty-Ninth Judicial District Court participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . Defense counsel did not mention the accused’s mental condition to the trial court during the guilty plea hearing nor was a motion to withdraw the guilty plea filed in the district court. As a matter of due process, however, the accused may plead guilty and directly challenge the validity of his conviction by appeal. State v. Halsell, 403 So.2d 688 (La.1981); State v. Williams, 384 So.2d 779 (La.1980).

      . Defendant sold marijuana to an undercover agent twice on the same day at different times. The agent returned around a week later and purchased two more bags of marijuana.


text:
    Gary E. PICOU v. Salvatore FERRARA et al.
    No. 81-C-2705.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.

      A. Lane Plauche, Reid K. Hebert, Plauche, Smith Hebert & Nieset, Lake Charles, John G. Gomila, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for applicant.
    Paul A. Bonin, Levenson & Bonin, Dennis M. Ferrara, Ferrara & Ferrera, James H. Drury, Drury & Lozes, New Orleans, for respondent.
   DIXON, Chief Justice.

This suit for damages arose when plaintiff was injured in an accident in which his motorcycle was struck by an automobile owned and operated by defendant, Salvatore Ferrara; defendant was on an errand for his employer at the time of the accident. Ferrara, Inc., the corporation that employed Salvatore Ferrara, was also joined as defendant on theories of vicarious liability and negligent entrustment. Lumbermens Mutual Casualty Company, the corporation’s general liability insurer, was joined by Ferrara, Inc. as third party defendant; Ferrara, Inc. sought enforcement of the contract of insurance between them.

Ferrara, Inc. filed a motion for summary judgment seeking a declaratory judgment that Lumbermens’ general liability policy provided coverage. Lumbermens filed a cross motion for summary judgment seeking dismissal of the third party demand based on the policy’s exclusion of liability for damages arising out of the use of an automobile by any person in the course of his employment. The trial judge denied Lumbermens’ motion, granted Ferrara, Inc.’s motion, and declared there was coverage, under the “occurrence” and “all operations necessary or incidental to the business” clauses, for claims based on Ferrara, Inc.’s negligence in hiring an incompetent driver. The judgment rejected liability claims against Lumbermens based on vicarious liability, and held such claims to be clearly excluded from the policy’s coverage.

The court of appeal, on rehearing, affirmed the decision of the trial court. Picou v. Ferrara, 404 So.2d 1265 (La.App.1981). We granted Lumbermens’ petition for writs of review, and reverse.

Ferrara’s general liability policy included a special multi-peril liability insurance form for bodily injury and property damage. The policy listed numerous liability exclusions, excluding coverage for special risks for which appropriate insurance is available. Clause 1(b)(2) of the policy clearly excludes liability for bodily injury or property damage arising out of the use of an automobile by an employee in the course of his employment.

The relevant coverage and exclusion clauses are:

“1. COVERAGE C — BODILY INJURY AND PROPERTY DAMAGE LIABILITY:
The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured conducted at or from the insured premises and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company’s liability has been exhausted by payment of judgments or settlements.”
“Exclusions
This insurance does not apply
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or
(2) any other automobile or aircraft operated by any person in the course of his employment by any insured;
but this exclusion does not apply to the parking of an automobile on insured premises, if such automobile is not owned by or rented or loaned to any insured.”

The court of appeal relied on LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978); Connor v. Farmer, 382 So.2d 1069 (La.App.1980) and Frazier v. State Farm Mutual Automobile Insurance Co., 347 So.2d 1275 (La.App.1977) to support its conclusion that the policy made Lumbermens liable for damages arising out of Ferrara, Inc.’s negligence in sending an employee on an errand in his car “when it knew or should have known of his physical infirmities and inabilities in safely operating a vehicle on the public streets.” Those cases, however, do not justify holding Lumber-mens liable for damages that arose out of the use of an automobile — a specific exclusion.

In LeJeune a sheriff’s deputy was assigned to lead a funeral cortege. He approached the intersection of two rural highways marked by a flashing red light. The deputy slowed and proceeded through the intersection, and the cortege followed. Another car was traveling at an excessive rate of speed on the favored highway that was marked by a flashing amber light. The speeding car collided with the hearse, causing the death of the funeral director who was a passenger in the hearse and injuries to both drivers. Western World Insurance Company’s professional liability policy excluded bodily injury arising from the ownership, use or operation of an automobile. This court held Western World’s liability arose, not from the use of an automobile, but from the deputy’s breach of his law enforcement duties in failing to secure the intersection to allow the cortege to proceed safely. The deputy could have protected the intersection with or without the use of his vehicle. He could have parked the car on the roadside and personally directed traffic, or he could have blocked the intersection with the car. It was his failure to guard the intersection that resulted in the collision, not the use or nonuse of the automobile. The professional liability policy was designed to cover the breach of duties by law enforcement officers. Since the deputy neglected his professional responsibility, the consequences that followed were covered by the professional liability policy.

In Connor v. Farmer, supra, the court of appeal found that the plaintiff’s silicosis was caused by sending him into a contaminated area with inadequate protective clothing — a risk not excluded from coverage; the fact that another cause of injury might have been an excluded risk (the discharge of pollutants) was held not to defeat coverage.

In Frazier the Vedros couple was babysitting a child in their home. The child was injured when the couple’s minor daughter ran over the child with her parents’ car. Republic Underwriters Insurance Company was the Vedros’ insurer under their homeowners policy. The policy contained an exclusion for injury arising from the operation of a motor vehicle. The insurer filed a peremptory exception of no cause of action which was sustained by the trial court. The court of appeal reversed and remanded for a trial on the merits. The court noted that the petition alleged two causes of action. One was against the automobile insurer for the driver’s negligent operation of a vehicle. The other cause of action was against Albert and Beula Vedros for “ ‘. not minding said child and knowing the whereabouts of said child and seeing to it that said child was not in the way of any vehicles driven by anyone on said property since Beula Vedros was temporarily tending said child for plaintiff and they were otherwise at fault.’ ” Frazier v. State Farm Mutual, supra at 1276. Frazier held that the petition did state a cause of action against Republic. Since there was an accident on the Vedros’ property, which was protected by Republic’s homeowners policy, there was a cause of action against the insurer for any injuries that were happened at the Vedros home. Use of the automobile was not essential to such a theory of liability for injury to a child on the premises. The automobile was an essential fact of the accident, but only incidental to the theory of liability under the homeowners policy.

Here the coverage in the policy for bodily injury liability is very broad, but limited to those injuries arising out of the use of the premises “and all operations necessary or incidental to the business .. . conducted at or from the insured premises ...” Deliveries from the premises are therefore covered, except automobile deliveries.

Liability for all injuries arising out of the use of automobiles is excluded (except for parking of nonowned cars on the premises). Liability for injuries arising out of automobile deliveries are therefore excluded, even though one cause of the injury might have been the negligent choice of the deliveryman who drove the car, and another might have been the employer’s responsibility for the employee’s acts. The use of the automobile, a risk excluded from the policy, is a common and essential element in each theory of liability. Not so in the LeJeune case. The breach of his law enforcement duties by the deputy in LeJeune was independent from the use of the automobile, and that breach of duty, not the use of the automobile, was the cause of the accident.

In Frazier the homeowners policy was designed to cover liability for injuries on the Vedros’ property, and the court of appeal properly found a cause of action stated against the insurer.

To the extent that Connor v. Farmer, 382 So.2d 1069 (La.App.1980) may be contrary to this opinion, it is overruled.

For these reasons, the judgment of the court of appeal is reversed. Summary judgment is now granted in favor of defendant, Lumbermens Mutual Casualty Company, dismissing it from this action, at plaintiff’s cost.

LEMMON, J., concurs.

      . For example, the policy did not apply to automobiles, aircraft, watercraft, water or air pollutants or worker’s compensation claims. All exclusions are special risks for which Ferrara, Inc. could have purchased appropriate coverage by paying additional premiums.

      . There are no reported decisions dealing with the litigation in Frazier following the remand by the court of appeal.

      . Other court of appeal cases properly interpreting the exclusion clause in premises liability policies are Hill v. Liberty Mutual Insurance Co., 357 So.2d 61 (La.App.1978) and Hurston v. Dufour, 292 So.2d 733 (La.App.1974). In the Hill case, the insured’s minor son was driving a borrowed motorbike on which plaintiff’s minor son was a passenger. Injury resulted from the operation of the motorbike by the insured’s son. The general homeowners liability policy excluded coverage for “ ‘bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) ... (2) any motor vehicle owned or operated by, or rented or loaned to any Insured ... ’” Hill v. Liberty Mutual, supra at 62. The insured argued that because of the vicarious liability of a parent for damages occasioned by his minor under C.C. 2318, the police exclusions were inapplicable. The insured tried to distinguish his legal fault for the acts of his son from the injuries caused by the son’s operation of a motorbike. The court of appeal rejected the argument while pointing out that it ignored the unambiguous provision of the policy.
      In Hurston v. Dufour, supra, the insured attempted to establish coverage under her homeowners policy for an automobile accident caused by her son while away from home. The argument was identical to that in Hill. The insured claimed the automobile exclusion was inapplicable because her liability for the acts of her son were due to legal fault arising from C.C. 2318. The court of appeal properly rejected the argument, and noted that it was an effort “... to create an automobile insurance contract out of a homeowners policy designed primarily to cover liability resulting from incidents occurring on the premises of the insured. ...” Hurston v. Dufour, supra at 739. The court noted that the policy was designed to exclude liability arising in any manner from the operation of the vehicle while away from the premises of the insured.