author: DUNAGAN, Chief Justice.

text:
    Walter RUSEK, Trustee, Relator, v. The Honorable Tate McCAIN et al., Respondents.
    No. 1100.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 17, 1977.
    Rehearing Denied Dec. 8, 1977.
    William F. Hagans, Bracewell & Patterson, John H. Buck, Houston, John B. McDonald, McDonald & Calhoon, Palestine, for relator.
    W. V. Dunnam, Jr., Dunnam, Dunnam & Dunnam, Waco, for respondents.
   DUNAGAN, Chief Justice.

This is a mandamus case. Relator, Walter Rusek, Trustee, has initiated this original proceeding to require the Respondent, the Honorable Tate McCain, to vacate an order granting a mistrial and to enter judgment for Relator.

The suit was tried to a jury in the 3rd Judicial District Court of Anderson County, Texas. It was a usury case in which the plaintiffs sued the Relator in his capacity as Trustee for three trusts. When the plaintiffs rested their case they had presented no evidence that notice of the suit had been given to the trust beneficiaries as required by certain provisions of the Texas Trust Act, Article 7425b-19. It was admitted in open court that no such notice had been given. The defendant-Relator timely moved for a directed verdict on the ground that there had been a failure of proof of a necessary element of plaintiffs’ case. A jurisdictional fact pertaining to a statutory condition precedent to the maintainability of the action had not been proven. In opposing the motion for directed verdict, the plaintiffs-Respondents moved for a mistrial, arguing that they should be allowed another day in court and another chance to make their proof. The Court granted the motion for mistrial.

The Relator asserts that the trial court erred in granting a mistrial and refusing to enter judgment for defendant for the following reasons:

(1) “The notice required by Article 7425b-19 is a statutory condition precedent to recovery by Plaintiffs.
(2) “Since Plaintiffs failed to plead and prove a necessary element of their cause of action, the trial court was under a duty to enter judgment for Defendant, and
(3) “The trial court erred when it granted a mistrial based solely on Plaintiffs’ failure to comply with the condition precedent imposed by Article 7425b-19.”

The court’s order reads in part:

“ . . . Thereupon, Plaintiffs admitted in open Court that, in fact, no notice as set out in Art. 7425b-19 had been given and moved, in open Court, for a mistrial. Based solely on the ground that Plaintiffs have failed to give said notice to the beneficiaries as set out in Art. 7425b-19, this Court was of the opinion that Plaintiffs’ Motion for Mistrial should be granted, and also was of the opinion that the Defendant’s Motion for Directed Verdict should be denied. It is, therefore,
“ORDERED, ADJUDGED AND DECREED that Defendant’s Motion for Judgment and a Directed Verdict is hereby denied. It is further,
“ORDERED, ADJUDGED AND DECREED that Plaintiffs’ Motion for Mistrial is hereby granted.”

While the Supreme Court under Article 1733, V.T.C.S., “does have the power to correct abuses of discretion in certain lower courts where there is no adequate remedy by appeal,” this court, however, has

no such power. Johnson v. Court of Civil Appeals for the 7th Supreme Judicial District of Texas, 162 Tex. 613, 350 S.W.2d 330 (1961). We have no jurisdiction to grant the relief sought by Relator in this proceeding. This court’s authority to issue writs of

mandamus is limited to that given in Articles 1823 and 1824, V.T.C.S., neither of which is applicable to the instant case. This court may only issue writs necessary to enforce our jurisdiction or to compel a district or county court to proceed to trial and judgment in a cause. Wochnik v. Smith, 541 S.W.2d 528 (Tex.Civ.App.-Waco 1976, writ ref’d n.r.e.); Ware v. Marquez, 511 S.W.2d 594 (Tex.Civ.App.-El Paso 1974, n.w.h.) and Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 438 (Tex.1959); Johnson v. Court of Civil Appeals for the 7th Supreme Judicial District of Texas, supra. See also Shamrock Fuel & Oil Sales Co., Inc. v. Tunks, 416 S.W.2d 779, 782 (Tex.1967).

Motion of Relator for Writ of Mandamus is denied.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    Ruby Lee HART, Appellant, v. Jace P. FLOYD, Jr., Appellee.
    No. 15898.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 23, 1977.

      Sam C. Bashara, San Antonio, for appellant.
    John D. Box, Duke, Branch & Schmidt, San Antonio, for appellee.
   MURRAY, Justice.

In January 1974, appellee, Jace P. Floyd, Jr., made a loan of $2,500.00 to appellant, Ruby Lee Hart. After default, suit was instituted by appellee against appellant to collect the amount of the loan. When the case was called for trial the attorney for appellant made a motion for continuance which was overruled. A jury was empaneled and at the close of the evidence the trial court instructed a verdict for plaintiff.

As stated in the appellant’s brief, the only issue before this Court is whether or not the identity of the appellant as recipient of the funds was established as a matter of law. Appellant contends that, although appellee testified that he loaned the money to appellant, Ruby Lee Hart, and that a Ruby Lee Hart was served with citation, it was incumbent on appellee to identify that the Ruby Lee Hart that was served with citation was the same Ruby Lee Hart that he loaned the money to. It is the settled law of this State that, in civil cases, similarity of names is sufficient to establish identity of persons when there is no evidence to the contrary and no suspicion has been cast upon the transaction. Eilar v. Theobold, 201 S.W.2d 237 (Tex.Civ.App.—San Antonio 1947, no writ).

Appellant’s contention that the trial court, in granting motion for directed verdict at the close of appellee’s case, denied appellant an opportunity to make an issue of identity is without merit. While it is true that the statement of facts does not show that appellant stated “We close,” it is apparent from the record that he had no further evidence to introduce. Appellant was not present at the time of trial and in fact was in California. The attorney for appellant stated to the trial judge, “May I further point out to the Court that we tried at the beginning to get this case continued till I had the opportunity to present whatever facts; this is denied by Mr. Floyd’s insistence upon going to trial. At this point in time, we were left with no alternative but to present a technical and legal action because of failure of Counsel to make the proof upon identity.” It should also be pointed out that in response to a motion for summary judgment defendant, Ruby Lee Hart, filed a sworn affidavit admitting that she received the loan as plead by the plaintiff but denying the loan had matured.

The judgment of the trial court is affirmed.


author: O’QUINN, Justice.

text:
    Ronald CHITSEY, Appellant, v. PAT WINSTON INTERIOR DESIGN, INC., Appellee.
    No. 12592.
    Court of Civil Appeals of Texas, Austin.
    Nov. 30, 1977.
    Rehearing Denied Dec. 14, 1977.

      John E. Powers, Powers & Rose, Austin, for appellant.
    John W. Craven, Morris & Ausley, Austin, for appellee.
   O’QUINN, Justice.

Pat Winston Interior Design, Inc., brought this lawsuit in county court at law against Ron Chitsey to recover $917.55 on a sworn account for 44 rolls of wallpaper sold and for services performed as design consultant, plus reasonable attorney’s fees of $300, in connection with construction by Chitsey of a residence in Austin. Plaintiff verified its claim under Rule 185, Texas Rules of Civil Procedure. Chitsey contested the suit under an answer setting up general denial and a sworn denial alleging a special contract for delivery of the wallpaper and denying purchase on open account.

Upon trial before the court without a jury, the court entered judgment for Winston Interior in the amount of $917.55, together with attorney’s fees for $300. Chit-sey has appealed and brings three points of error. We will overrule all points of error and affirm judgment of the trial court.

The trial court filed comprehensive findings of fact and conclusions of law, and appellant brought forward the transcript and the statement of facts with fourteen exhibits introduced in evidence.

Appellate review of the record will be under the rule stated by McDonald as follows:

“When specific findings of fact and conclusions of law are filed and a statement of facts is also brought forward, the findings will be sustained if there is any evidence to support them.” 4 McDonald, Texas Civil Practice, 16.-10(b), p. 29 (1971). See also Mathews v. Warren, 522 S.W.2d 569, 570 (Tex.Civ. App. Austin 1975, writ ref’d n. r. e.).

Winston Interior offered testimony of witnesses and documentary proof establishing sale to Chitsey on an open account of forty-four rolls of wallpaper, which Chitsey picked up on three separate dates at Winston’s place of business. Proof was also made that Winston furnished consulting services in connection with two houses under construction by Chitsey. The trial court in nineteen specific findings of fact found that the contract for purchase of the paper and use of services was made, the paper was delivered, and the services were rendered. The court also found the reasonable value of the goods and services to be as proved by evidence offered by Winston, and that Chitsey had failed to pay for the paper and professional services, although demand had been made.

The court further found (in findings 20 and 21) that Winston found it necessary to employ counsel at a reasonable fee, and that the parties had stipulated that a reasonable fee would be $300, which the court would assess.

Chitsey testified that he had a special contract with Winston by which he would not pay more than $500 for the wallpaper. Chitsey conceded that he owed the reasonable value of design services, which the court found. Winston witnesses denied any special contract to furnish wallpaper, but on the contrary asserted that the paper supplied was sold on open account with a discount to Chitsey of twenty percent off cost.

The court concluded that Chitsey had an open account with Winston. We find ample evidence in the record of probative value to support the court’s conclusion.

It is settled that if there is any evidence of a probative nature to support the findings of the trial court the judgment based on the findings must be affirmed. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 977 (1951); Mathews v. Warren, supra.

It is also firmly established that a trial court has the right to consider all facts and circumstances in evidence and to indulge in reasonable inferences to be drawn therefrom in reaching its ultimate finding. In review of the record on appeal to determine whether there is any evidence of probative value to support the trial court’s finding, the appellate court must view the evidence in the light most favorable to appellant against whom the judgment was rendered. Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, 289 (1951); Mathews v. Warren, supra.

The findings of the trial court in a nonjury case have the same presumption of conclusiveness and weight on appeal as the verdict of a jury, and the court is the sole judge of the credibility of the witnesses and may believe or disbelieve any witness, in part or entirely. Vandyke v. Austin Independent School District, 547 S.W.2d 354, 356 (Tex.Civ.App. Austin 1977, no writ) and cases cited; see also Redman v. Bennett, 401 S.W.2d 891, 895 (Tex.Civ.App. Tyler 1966, no writ) and cases cited.

We conclude that the findings of the trial court are adequately supported by evidence of probative value. This Court is not authorized to substitute its judgment for that of the trial court.

The judgment of the trial court is affirmed.

Affirmed.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Burton R. SIGNER, Respondent.
    Supreme Court of Kentucky.
    Oct. 7, 1977.
    Rehearing Denied Jan. 10, 1978.
    Leslie G. Whitmer, Director, John T. Damron, Asst. Director, Frankfort, for complainant.
    Frank A. Logan, Louisville, for respondent.
   PER CURIAM.

This is round two in disciplinary proceedings against Burton R. Signer, a Newport, Kentucky attorney, and a member of the Kentucky Bar Association.

Signer was admitted to the Ohio bar on April 23,1958. After practicing in Ohio for more than 5 years, on March 2,1966, Signer applied for admission to the Kentucky bar without examination. The National Conference of Bar Examiners received a favorable report on the moral and professional character of Signer. He was admitted to the Kentucky bar on July 22, 1966.

During 1965 Signer had conducted certain unsavory business dealings in Ohio. His unethical conduct in respect to those business matters resulted in his disbarment by the Supreme Court of Ohio on July 28, 1972. See Cincinnati Bar Association v. Signer, 30 Ohio St.2d 303, 285 N.E.2d 10 (1972). The Kentucky Bar Association had no information of the Ohio disciplinary proceedings against Signer until 1973. On January 9,1974, the Kentucky Bar Association instituted disciplinary proceedings against Signer based solely on the Ohio disbarment.

The trial committee conducted a hearing of the charge. Under the authority of In re Clay, Ky., 261 S.W.2d 301 (1953), the trial committee concluded that the Full Faith and Credit clause of the United States Constitution (Article 4, § 1) required Signer to be disbarred or suspended in Kentucky so long as the Ohio disbarment continued in full force and effect. The Board of Governors of the Kentucky Bar Association concurred and recommended to this court that Signer be disbarred as an attorney.

This court held that full faith and credit does not require a disbarment in one state to automatically disbar an attorney in this state. In re Clay, Ky., 261 S.W.2d 301 (1953) was held to be unsound and was overruled. See Kentucky Bar Association v. Signer, Ky., 533 S.W.2d 534 (1976).

In Signer, supra, this court held that if the Kentucky Bar Association had no knowledge of the disbarment proceedings in Ohio or was unaware of some substantial element of it, “public protection against a potential vulture justifies disbarment if it be fairly determined after a due process hearing that the conduct was such that, if known at the time, it would have certainly resulted in a denial of his [Signer’s] application for admission to the bar.”

This court’s holding in Signer, supra, was:

“It will be necessary, therefore, for the bar association to determine whether to institute a new charge or an amended charge against Signer based upon the facts adjudicated by the Ohio court and, in the event such a charge is brought, to have it heard and considered with respect to whether those facts, if known at the time, in good conscience would have required (not justified, but required) rejection of his application.”

The matter was remanded to the Kentucky Bar Association for further proceedings. In the commencement of round two, the Kentucky Bar Association on March 17, 1976, filed an amended and supplemental charge based upon the decision of Signer, supra. The charges placed against Signer were unethical and unprofessional conduct as evidenced by the confirmation of a report of the Board of Bar Commissioners on Grievances and Discipline by the Ohio Supreme Court. The main thrust of the charge against Signer was that he directly misrepresented to the Board of Bar Examiners his fitness to be a member of the Kentucky Bar Association. The further charge was that had the board known of Signer’s conduct in Ohio it would have required a recommendation to deny Signer’s motion for admittance. An answer was timely filed. A trial committee heard the evidence and submitted a report to the Board of Governors.

The Board of Governors recommended in its minutes of certification to this court that Signer be found guilty of the charge of misrepresentation and that he be disbarred and ordered to pay the costs of these proceedings.

Signer has attacked the proceedings as being “quasi-criminal” and of an adversary nature. He supported that argument with the case of Lenihan v. Commonwealth, 165 Ky. 93, 176 S.W. 948 (1915). However, it is noted that Lenihan, supra, was decided prior to the unification of the bar in Kentucky. It is crystal clear that subsequent to the Uniform Bar Act, this court has consistently held disciplinary proceedings to be civil in nature and not criminal, nor even quasi-criminal. In re Edge, Ky., 282 S.W.2d 830 (1955).

Disciplinary proceedings are inquiries into what may have constituted unethical and unprofessional conduct. The Kentucky Bar Association does not take an adversary position and this court has consistently so held. See In re Taylor, 309 Ky. 388, 217 S.W.2d 954 (1948).

Signer contends that the disciplinary action against him in these proceedings is barred by the statute of limitations set out in KRS 413.120(3), (12) and KRS 413.130(3). He contends that it is an abrogation of due process and equal protection not to apply the statute of limitations since it would apply if he were not an attorney. Signer’s argument in this respect has no merit. In a number of cases this court has held that the statute of limitations is not a bar to the initiation of disciplinary proceedings. In Taylor, supra, the applicant states in his application that he had been a regularly licensed and practicing attorney in good standing in Illinois from 1927 to 1938, when in truth and in fact he had been disbarred by the Supreme Court of Illinois in 1928. Upon receipt of this information in 1935 this court issued a rule for Taylor to show cause why his license should not be revoked. Taylor argued unsuccessfully that KRS 413.120(12) barred the action “for relief or damages on the ground of fraud or mistake” since more than 5 years had elapsed. The court rejected the argument noting that the proceeding was not an adversary one, the court added:

“If one fraudulently obtains a license and enters into and continues the practice of law, such conduct constitutes a contempt of court as long as the licensee holds himself out as an attorney in good standing.” In re Taylor, supra, at 956.

It is true that the complaint against Signer does not allege fraud. It does charge him with a misrepresentation of his fitness to be an attorney. This charge is based on Signer’s response to Question No. 23 on his application, “Is there any other incident in your career not hereinbefore referred to, having a bearing upon your character or fitness for admission to the bar?” Signer answered the question in the negative.

Since Signer’s failure to disclose was a significant factor in the delay of the information coming to the attention of the bar, he cannot now seek the shelter of the statute of limitations. This is consistent with the holding in Taylor, supra, in which this court stated in clear and concise language:

“It is the duty of the applicant for a license to disclose facts pertaining to his qualifications, and all facts that would put the Board or the court on notice of any disqualifications.”

Signer contends that the same matters presented in this case were presented in his previous hearing before the board. He bases his argument on the fact that in this and the prior action the Kentucky bar included as an appendix in its brief the findings of fact and recommendations of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio. He reasons that since the facts were once litigated between these parties they are barred from further litigation. Signer’s contention is without foundation.

Signer is charged that he misrepresented his character to the Kentucky Board of Bar Examiners when he applied for admission to the bar. The charge states that had the Board of Bar Examiners known of Signer’s conduct they would have required a rejection of his admission to the Kentucky bar. Two of the three members of the Kentucky Board of Bar Examiners testified in no uncertain terms that if at the time of Signer’s application for admission to the Kentucky Bar Association, they had known the facts later disclosed by the Ohio disciplinary proceedings, they in good conscience would have required rejection of the application.

The testimony of the two board members in respect to Signer’s conduct in this matter is as follows:

“Q. Mr. Francis, now, in your opinion as a member of this Committee, in good conscience would knowledge of these facts required rejection of his application?
A. They would.” and the other member:
“Q. Had you been aware of these facts, sir would you have approved the admission of Mr. Signer to the Kentucky Bar Association?
A. Frankly, I would not have.
Q. Mr. Lampe, in your opinion, sir, had these facts been known at the time of his application for admission would in good conscience knowledge of these facts required rejection of his application?
* * * * * *
A. I think these facts would have required rejection.”

This court is of the opinion that the Kentucky Bar Association has met the criterion set out by this court in round one, Kentucky Bar Association v. Signer, Ky., 533 S.W.2d 534 (1976).

Signer has been afforded a due process hearing within the scope of his constitutional rights. The board’s recommendation of permanent disbarment is justified in light of Signer’s conduct while a member of the Ohio bar and his concealment of that conduct from the Kentucky Board of Bar Examiners upon his motion to be admitted to practice.

This court adopts the recommendation of the Kentucky Board of Bar Governors. Accordingly, Burton R. Signer is permanently disbarred from the practice of law in this Commonwealth, and it is adjudged that he pay the costs of this action.

All concur.

      . The third member was deceased at the time of the hearing.


author: STERNBERG, Justice.

text:
    Billy Charles LEFEVERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 28, 1977.

      J. C. Helton, Gerald L. Greene, Helton & Greene, Pineville, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

On November 5, 1974, John Slusher, a grocer, was shot to death and robbed in his store. On September 14, 1976, the appellant, Billy Charles Lefevers, was indicted by the Bell County Grand Jury for the offenses of murder and robbery. A five-day trial ended with the jury finding appellant guilty of the crime of murder in the commission of robbery and he was sentenced to life imprisonment.

Mitchell Saylor was also charged with the same offenses by separate indictment. He plea bargained and received a lesser sentence.

On this appeal appellant cites five errors, each of which it is charged, if meritorious, would require a reversal. The issues presented call for a review of the evidence.

The first witness to testify for the Commonwealth was Mitchell Saylor, who freely and frequently invoked his constitutional privilege by refusing to answer questions which would tend to incriminate him in the commission of the offenses. The court liberally granted his objections. However, after plea bargaining, Saylor was called again to testify. He stated that on November 5, 1974, the date of the offenses, he and appellant, who are second cousins, drove in appellant’s car to John Slusher’s store at Redbird, Kentucky, on their way to Somerset, Kentucky. Appellant went into the store and Saylor remained in the car. Saylor stated that he heard three or four gunshots, so he got out of the car and went into the store, where he found appellant loading his gun and John Slusher, the victim, lying on the floor. He and appellant then left the store, with appellant carrying some guns, some money, and a watch. They then drove to Somerset and spent about a week with a Katherine Price, the mother of appellant’s girlfriend, where they also hid the guns. A day or so after the robbery the two of them drove back to Lexington, Kentucky, where appellant sold the watch at a pawn shop for $80. The guns were retrieved and placed in appellant’s car. After several days the two of them returned to Cincinnati, Ohio, where they had been living. They gave the guns to Jim Meredith, a person with whom they had been working.

Appellant denied that he had anything to do with the killing or robbery of John Slusher. He denied that he was in the Slusher grocery on the fateful day. The only knowledge appellant had of the murder-robbery was what he learned from other persons. He testified that he and Saylor were living and working in Cincinnati, and that they had been on a weekend visit at his mother’s home in Newtown, Kentucky. He said that on the day prior to the murder-robbery Saylor borrowed his car and returned it in the early afternoon of the following day, and that shortly thereafter the two of them left and went to the home of Janice Price. While enroute Saylor told him that he had traded an automobile for a watch, three or four handguns, and a .22-caliber rifle. Saylor gave appellant the watch and hid the guns in a barn at the Price home. Appellant offered to dispose of the guns at a pawn shop. The next day they drove to Lexington; however, appellant declined to sell the guns but did sell the watch for $80 and gave the money to Saylor. Both of them then returned to Somerset, where they stayed three or four days before going back to Cincinnati. During their return trip to Cincinnati, Saylor said that he alone had gone to Slusher’s grocery, after having (speaking in the vernacular of the underworld) “cased the joint;” that Slusher ordered him out and made a movement as if to get a gun; and that he (Saylor) shot him, then got scared and ran out. Saylor said he went back into the store to see if Slusher was dead and, upon finding that he was, he took some money and guns and again left, only to immediately return to get Slusher’s watch. After the two of them returned to Cincinnati, at Saylor’s request, he gave the guns to Jim Meredith. Appellant thus portrays the affair, as Saylor allegedly told it to him.

Janice Price testified that she lived in Chenoa, Bell County, Kentucky, and worked at the Pineville Hospital. She stated that on election day in November, 1974, appellant and Saylor came to her house and that some time later she, her mother, Saylor and appellant drove to Somerset, where they went to a shopping center, where appellant bought some clothes. The four of them then returned to her mother’s home. Later Saylor and her mother drove back to Somerset, leaving the appellant and her at the house. Appellant took Janice to the barn and showed her five or six guns which had been hidden. He also showed her a gold pocket watch and confided in her that he had killed a person, but he did not tell her who it was or where it happened, only that it happened the prior day.

Floyd Randall testified that on November 7,1974, appellant came to his home in Somerset and bought a .32-caliber pistol. While there, appellant showed him some guns, one which was an antique pistol.

Jay Randall testified that in November, 1974, he saw the appellant and Mitchell Saylor at his son’s house. On that occasion he saw four or five guns in the trunk of their automobile. He identified one of the guns as an “old antique thing.”

Luther Slusher,. the victim’s younger brother, visited with him about thirty minutes before his death. He verified his brother’s ownership of a .22-caliber pistol, two rifles, a .55-M rifle, an antique gun, and a B.W. Raymond Elgin 21-jewel pocket watch, with a Simmons chain.

Charlie Rosenberg, a pawnbroker from Lexington, testified that on November 6, 1974, he bought such a pocket watch and chain from the appellant. It was stipulated that appellant signed the pawn receipt.

This thumbnail sketch of the testimony is sufficient for our consideration of the charges of error.

During the voir dire, counsel for appellant made three challenges for cause, each of which was denied by the trial judge. Counsel now contends that the court erred in not granting these three challenges for cause, and because it did not do so, it committed prejudicial error.

Mrs. Joe A. Bingham stated that she would be prejudiced because her father was killed when she was a very young child. Luther Maples stated that in his opinion the appellant had the burden of proving his innocence. Mr. Delbert James was a part-time city police court judge. All three of these prospective jurors were peremptorily stricken by the appellant. After the jury had been fully selected, the appellant still had five peremptory challenges remaining. In Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973), we said:

“Appellants complain of an abuse of discretion by the trial court in refusing certain challenges for cause. The argument is unavailing because nowhere do appellants assert they were forced to exhaust their peremptory challenges, nor does examination of the record reveal such circumstance. All the jurors in question were removed by way of peremptory challenges. A defendant who fails to exhaust such challenges cannot complain concerning the jury selection. Certainly if the biased juror is not impan-elled, no prejudice can result. There has been no showing that use of the eleven peremptories to dispose of the suspect jurors resulted in a subsequent inability to challenge additional unacceptable veniremen. Therefore, favorable consideration may not be given to appellants’ assertions.”

It appears that not only were the jurors who expressed bias not impaneled, but appellant had five remaining unused challenges. No prejudice resulted to the appellant.

Among other instructions given to the jury by the trial court, No. 2 instructed the jury as follows;

“If the Jury believe from the evidence in this case to the exclusion of a reasonable doubt that Billy Charles Lefevers in company with Mitchell Saylor went to the Store House of the deceased, John Slusher, with the intent to rob him of money or any other thing of value, and if you further believe that both Billy Charles Lefevers and Mitchell Saylor entered the Store together and was on the premises together for the purpose of carrying out this robbery, even if they did not intend to kill him when they went there, but he was killed as a result of a difficulty in robbing him by either Billy Charles Lefevers or Mitchell Saylor, then in that event it is immaterial which one fired the shots that killed him.”

Objection was made to the giving of this instruction on the grounds that there is no evidence to warrant such an instruction or to support appellant’s conviction thereunder. This is one of those cases where each of two persons charged with the commission of the crime placed the blame on the other. To believe Saylor would be to find that appellant, and he alone, did the killing and committed the robbery, and that he (Saylor) only participated after the dastardly deeds had been done. On the other hand, appellant would have us believe that he was not involved with the murder-robbery scheme in any manner, even though he sold part of the merchandise to a Lexington pawnbroker, carried part of the loot in the trunk of his car for several days, displayed it to other persons, disposed of the guns by giving them to a mutual friend, Jim Meredith, and told at least one person that he had killed someone.

Should the jury choose to believe either version or should it choose to believe a combination of the two versions, there is clearly demonstrated a premeditated plan of murder and robbery. The jury was not compelled to believe the testimony of appellant, nor was it compelled to believe the testimony of Saylor. Under the evidence as a whole, it would not be clearly unreasonable for a jury to believe that both appellant and Saylor were in this scheme together. Instruction No. 2 was proper.

At the close of the Commonwealth’s evidence, the appellant moved the court to direct a verdict of acquittal in his favor for the reason that the Commonwealth’s witnesses, Janice Price and Mitchell Saylor, were both accomplices, without whose testimony there is no evidence tending to connect the appellant with the commission of the crime. At the conclusion of all the evidence, counsel for appellant renewed his motion “for a directed verdict of acquittal on the grounds that there is no evidence of guilt beyond a reasonable doubt that the defendant, Billy Charles Lefevers, committed the offense charged in the indictment.”

In his brief appellant argues that the court failed to give an accomplice instruction as it would affect the testimony of Janice Price. Such an instruction was not asked for by appellant, nor was that proposition raised in his motion and grounds for a new trial. Thus, this matter was not preserved for appellate review. Caslin v. Commonwealth, Ky., 491 S.W.2d 832 (1973). As to who is an accomplice, in Durham v. Commonwealth, Ky., 398 S.W.2d 696 (1966), we said:

“It is our view that neither Alice Mills nor Helen Walls was an accomplice. The authorities cited by appellant and appel-lee teach that an accomplice is one who knowingly, voluntarily, and with common intent, unites with the principal in the perpetration of the crime, either by being present and joining in the criminal act, by aiding and abetting in its commission, or, if not present, by advising and encouraging the performance of the act. * * ”

This definition of an accomplice was reaffirmed in Dowdle v. Commonwealth, Ky., 554 S.W.2d 92 (1977). Measured by this standard, Janice Price was not an accomplice. Even in the absence of Janice’s testimony, there is sufficient evidence to uphold the verdict of the jury and the judgment entered thereon.

On voir dire, a prospective juror expressed as his opinion that the one who committed the foul acts ought to be severely punished. This brought forth an objection by counsel for appellant that the juror was prejudiced. There was no challenge made to the truth of the statement, nor could there be. Also, the court directed a question to counsel for appellant relating to the severity of the punishment. The court said, “Is there any question about that, Mr. Helton,” to which counsel responded, “I raise the question, your Honor.” This juror was stricken from the panel for cause. The court did not act in a manner prejudicial to the appellant in its dialogue relating to the perpetrator of these crimes being severely punished.

On October, 1, 1976, pursuant to the authority of RCr 7.24, counsel for appellant filed a pretrial discovery motion which sought, in part, to require the Commonwealth to furnish to appellant the following:

“1. Disclose any evidence known to the Commonwealth which would tend to exculpate the defendant or would bear upon the defendant’s degree of punishment if convicted.
‡ * * ⅜ * *
7. Copies of any statements of the defendant, either in document or recorded form or copies of any documents or recordings which purports to contain any substantially verbatim statements made by him.
8. Copies of any statements of the codefendant, Mitchell Saylor, either in document or recorded form or copies of any documents or recordings which purports to contain any substantially verbatim statements made by him.”

The motion was granted, and on October 18, 1976, the Commonwealth responded with the following answers:

“1. None.
* * * * * *
7. The defendant made no written or recorded statement; however, early in the investigation he was interviewed by Trooper Jerry Brewer.
8. Copy of the statement made by co-defendant, Mitchell Saylor, has already been furnished the defendant’s attorney.”

On Friday, October 22, 1976, after the court had recessed the trial and excused the jury until the following Monday morning, October 25, counsel for appellant made objection to the use by the Commonwealth’s Attorney of two handwritten, unsigned statements which were furnished to him at that time. One was a statement from the appellant and the other was a statement from the codefendant Saylor. Also, at the same time the name of a proposed Commonwealth witness, Margie Slusher, was furnished to counsel for appellant. Counsel was justly critical because the statements and the name of the proposed witness had not been timely given to him by the Commonwealth’s Attorney. He claimed the appellant was prejudiced by the delay and moved the court for a mistrial, to set aside the jury, and to grant appellant a new trial, all of which were denied. Counsel for appellant then made a motion “that the Court not allow any testimony from the Commonwealth regarding this statement that they failed to furnish us. And that it not be permitted to be used in any manner to contradict any testimony given by the defendant, Billy Lefevers, because the statement purports to be a report of a verbatim conversation had with Billy Lefevers by the officer who wrote the report.” After considering the motion, the court responded, “The statements are unsigned; apparently not sworn to, and at this time it is premature to request the Court to rule on this Motion since it would pre-suppose that the defendant will take the stand and testify contrary to what’s in the statements. The Court reserves its ruling until as of such time as it will become proper.”

The transcript of testimony reflects that at no time while the appellant was testifying did the Commonwealth’s Attorney interject or seek to interrogate him relative to the two statements. However, on redirect examination, the appellant testified that he had talked with Officer Brewer about the affair, but there was no mention made of such written statements. The two statements were written by Trooper Jerry Brewer, who testified as the second witness for the Commonwealth on October 20. No questions were asked of him at that time relative to these statements, nor did he comment on them.

The Commonwealth’s Attorney should have furnished the two statements to counsel for appellant as soon as reasonably possible after he received them. However, the statements contained nothing vital or revealing. As a matter of fact, when the trial reconvened on Monday, Detective Brewer was recalled as if on cross-examination, and no interrogation was made of him relative to them. In addition, Saylor was available as a witness for Lefevers, but he was not called. Also, appellant testified subsequent to his counsel’s receiving the statements, and he had full knowledge of what was contained in them. Counsel for appellant did not, after having had the weekend to study the statements, bring to the court’s attention any manner of prejudice to the appellant, nor was a motion for a continuance then made. This error, if any there was, does not manifest any prejudice to the appellant. Regardless of whether the statements were used or whether the Commonwealth’s Attorney interrogated appellant or any other witness in regards to the contents of either of the statements, no objection to any such use is reflected by the record. If such statements were used, it became the duty of counsel for appellant to then and there make an objection. Having failed to do so, he cannot now complain. Bell v. Commonwealth, Ky., 473 S.W.2d 820 (1971).

As to the witness Margie Slusher, the record discloses that she was not called by the Commonwealth, but was called by the appellant as the last witness to testify. Certainly after having the weekend to interview the witness and calling her as a defense witness, there was no prejudice shown to appellant by the delay in furnishing her name to counsel for appellant.

The judgment is affirmed.

All concur.


author: JONES, Justice. LUKOWSKY, Justice,

text:
    Charles DARNELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Michael A. NICKEL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 28, 1977.
    Rehearing Denied Dec. 9, 1977.

      Jack Emory Farley, Public Defender, William M. Radigan, Kevin M. McNally, Asst. Public Defenders, M. Gail Robinson, Co-Counsel, Frankfort, for appellants.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Charles (Chuck) Darnell and Michael (Mike) A. Nickel prosecute this appeal from judgments of conviction sentencing each of them to life imprisonment and two 20-year sentences pursuant to a jury verdict finding each of them guilty of murder and two counts of robbery in the first degree. See KRS 507.020(l)(a) and KRS 515.020. The trial court directed that the sentences be served consecutively.

Chuck and Mike present seven alleged errors in support of their argument for reversal. These issues will be discussed in the sequence presented in the briefs. However, before discussing the issues, it is necessary to detail pertinent facts as revealed by the record.

Virginia Adkins testified that around 3:00 P.M. on June 9, 1976, she stopped at the house of George and Hattie Darnell. She saw a person sitting in the chair inside, observed blood on the floor, and went to seek help. She returned with a neighbor and found that Hattie was covered with blood and was dead. George was on a bed in a back room seriously wounded, but was conscious.

Virginia also testified that she heard a car in the lane outside her house at about 3:00 A.M.; that the car was white, and that it “sounded . . . like a Ford.” She concluded that the car was in the driveway about five minutes.

A pathologist performed an autopsy on Hattie’s body. He found multiple and extensive wounds and lacerations about the head and left side of the face, and the area above the bridge of her nose. A piece of the right ear was missing; there were multiple fractures of the cranial bones. There was massive hemorrhage over the entire surface of the brain. The pathologist also found there was a gunshot wound in the lower neck. He testified that in his opinion death was caused by a massive intracranial hemorrhage.

Anthony Wayne Darnell (a co-indictee, who was granted a separate trial), testified that on June 8, 1976, he went to the home of Chuck's mother, Frances Darnell, around 12:30 or 1 o’clock. He was visiting with Chuck and his brother. Anthony and Chuck sat around drinking beer. At that time it appeared to Anthony that Chuck had no money. Later in the afternoon, Mike arrived and the three of them sat around drinking beer and talking about “old times and finding work.” They continued drinking until 10:30 or 11 o’clock P.M., when they ran out of beer. Chuck and Mike borrowed Anthony’s white Mercury automobile. Anthony went into the house, fell asleep and did not awaken until Chuck and Mike returned around 4:00 or 4:30 A.M.

Upon their return Mike and Chuck asked Anthony if he was ready to find work. At that time Chuck said they didn’t have to worry about money now because he and Mike had enough. Chuck flashed his wallet to show the money and said that the source was from the sale of some of his personal items.

The trio took a cab to a hotel in Portsmouth, Ohio, where Mike and Chuck had left Anthony’s car. Anthony observed Mike’s finger was bleeding. The owner of the hotel testified that she found drops of blood on the sink and on a towel in Mike’s room. Anthony repaired his car and after visiting Mike’s brother, the three drove by way of Interstate 75 to Florida. In Tennessee, Mike removed a snub-nosed 22 caliber pistol from his pants, gave it to Chuck and told him to put the gun in the glove compartment. At one point in their journey, Chuck admitted they were in trouble because they had robbed and shot some people in Kentucky. Mike used the pistol; Chuck used a lug-wrench.

At a tavern in Tavares, Florida, Chuck told his father that “he got even with the old bitch (his step-grandmother) . that he couldn’t do Grandpa and he took care of the old bitch . . . Mike said he shot the old man point blank in the head.” Chuck and Mike admitted taking four or five hundred dollars in the murder and robbery.

The testimony of George Darnell, Chuck’s grandpa who survived the ordeal, sealed the fate of Chuck and Mike. He testified that shortly after he and Hattie went to bed, “somebody come and knocked on the door Chuckie, my grandson, told me who he was . . . Hattie got up and opened the door . . . one of them said his name was Nickels ... he (Mike) asked me how much money I had . he said if I had enough money he might let me live . . . and I passed out.” Before George became unconscious, he heard shots in the room where Hattie was. He had four or five hundred dollars in his pants pocket. He was shot in the right eye. He testified positively that “Chuckie” and Mike were the only persons there the night these sordid crimes were committed.

There is an abundance of evidence contained in seven volumes. This court is of the opinion, however, that the evidence recited is sufficient to dispose of the issues. Reference to other evidence will be made if necessary to resolve any of the points raised on appeal.

Chuck and Mike first contend that on three occasions the prosecutor attempted to impeach their testimony by commenting on their silence at the time of arrest. During the direct examination of Pat R. Kickliter, the Florida officer who arrested them, the prosecutor asked if either made any statements after being advised of their constitutional rights. Kickliter replied “no.” Chuck’s and Mike’s counsel promptly objected and moved for a mistrial. The motion was overruled but the jury was given an admonition. Mike Nickel was asked on cross-examination if he had said, after being advised of his rights, “Me and this other fellow . . . (nodding to Charles Darnell) . . . have nothing to say. We want a lawyer.” An objection was made. Another motion for mistrial was sought. It was also overruled.

Officer Kickliter was recalled for rebuttal testimony. He testified he first met Mike on the night of June 10,1976. The following question was asked:

“I’ll ask you, at that time, he made this statement to you in form or substance: ‘Me and this other man’ — pointing to Charles Darnell, ‘have nothing to say. We want a lawyer.’ The officer replied: ‘Yes, sir.’ ”

■ Chuck and Mike rely on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), for the proposition that the use of their silence after arrest for impeachment purposes violates due process. They suggest that the prosecutor was attempting to convey the message that innocent men would have talked rather than remained silent. In Doyle, supra, the U. S. Supreme Court held that due process was abridged where the prosecutor asked the defendants in a series of questions why they had remained silent after their arrest. In Doyle, supra, the court stated:

“We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The State has not claimed that such use in the circumstances of this case might have been harmless error. Accordingly, petitioners’ convictions are reversed and their causes remanded . . . .” (Emphasis added).

A majority of this court is of the opinion that the three isolated questions here constitute only harmless error which does not require reversal, cf. Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976).

A reversible error under the Doyle rule would arise if the prosecutor’s remarks or questions focused on Chuck’s and Mike’s silence so as to strike at the heart of their defense. In this ease, the prosecutor did not focus on their silence by repetitive questioning, nor did he mention it in his closing argument. Secondly, the answer which was obtained was that they desired the services of an attorney before making a statement. Thus, an inference of guilt was negated by the explanation of their silence. Finally, the evidence against Chuck and Mike was overwhelming. Thus, the error, if any, was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The next assertion of error is that the trial court erred in permitting the introduction in evidence, of the testimony of Mrs. Robinson.

Mrs. Robinson, a neighbor, testified that, at about 11:00 P.M. on June 8, three men walked past her window. She could not identify them but heard one referred to as Chuck. She recounted that one of the men said, “Your blanking ass ain’t no better than mine rotting in jail.” Chuck’s and Mike’s counsel objected to her testimony since she didn’t know who made the statements. They now argue that this statement was inadmissible hearsay and highly prejudicial since the obvious inference was that the speaker and listener were contemplating criminal activity. They also contend this testimony deprives them of their right to confront and cross-examine a witness.

Whether Mrs. Robinson’s testimony should have been admitted depends upon whether it proves or disproves a material fact. In answer to this question, the relevancy of this testimony is clearly established by Chuck and Mike in their briefs:

“The obvious inference of the remark was that the speaker and the listener were contemplating activity that could result in their being incarcerated. Since Darnell was allegedly one of the three men who walked past Mrs. Robinson’s window, the jury could have concluded he was either the speaker or the listener and disbelieved the exculpatory testimony he gave at trial. Moreover, Mrs. Robinson’s testimony that appellant Nickel was in the back yard with appellant Darnell most probably conveyed to the jury that appellant Nickel was one of the three men who walked past her window.”

Inasmuch as her evidence tended to establish the existence of a criminal act, Mrs. Robinson’s testimony was relevant. Therefore, the evidence was properly admitted over an objection that it lacked relevance. The statement complained of is not hearsay because it was not introduced to prove the truth of its contents. Instead, it was properly admitted as a verbal act and a relevant part of the events observed. Armstrong v. Commonwealth, Ky., 517 S.W.2d 233 (1974).

Chuck and Mike desired additional time in which to examine the results of the tests on their blood. They also wanted to confer with independent experts and to subpoena the persons who prepared the reports. Whether this reason is sufficient to justify granting the requested continuance is a matter to be determined by the trial court in the exercise of its discretion, of. Benge v. Commonwealth, Ky., 346 S.W.2d 311, 314 (1961). It is this court’s view that the denial of the motion for a continuance did not constitute an abuse of discretion.

“A continuance or recess should not be granted the opposing side each time an expert testifies on the ground that it will take time to produce a counterexpert.” Brawner v. Commonwealth, Ky., 344 S.W.2d 833, 836 (1961).

Conceding for purposes of the argument that it was an error for the trial court not to grant a continuance so that Chuck and Mike had time in which to obtain an independent blood analysis, it appears to this court that there was nothing to prevent their doing so while the trial was in progress, or as soon thereafter as possible, in order to make a showing that they had been prejudiced. For example, if they had promptly done so, and if the independent analysis had proved inconsistent with the one introduced by the Commonwealth, a motion for new trial based on an affidavit disclosing that fact would have sufficed to show that they had been prejudiced. When defendants claiming prejudicial error have an opportunity to produce the facts that show whether in fact they had been prejudiced, but instead sit on their hands and do nothing, they cannot expect this court to presume the prejudice.

The trial court properly refused to admonish the jury as to the probative value of a co-indictee’s testimony.

Before Anthony Darnell testified, Chuck and Mike moved the court to admonish the jury that his testimony might be influenced by the charges pending against him. This was denied and they allege this to be error. They also requested that the trial judge instruct the jury to determine whether Anthony was an accomplice. A further instruction that an accomplice’s testimony must be corroborated was also requested. Both instructions were denied.

Chuck and Mike recognize that the mere fact that one is indicted with another does not make him an accomplice. Fox v. Commonwealth, 248 Ky. 466, 58 S.W.2d 608 (1933). They suggest, however, that the fact one is a co-indictee indicates a potential for falsification which is the same policy rationale for requiring the above instructions where an accomplice testifies.

A witness’ expectation of a benefit or motive to testify falsely is a factor that goes to the credibility of the witness and to the weight of his testimony. Such matters are within the scope of the jury’s duty. Jones v. Commonwealth, 313 Ky. 827, 233 S.W.2d 1007 (1950).

The isolated reference to Frances Darnell’s testimony before the grand jury was not error. Frances Darnell, Chuck’s mother, testified that Anthony left her house at about 11:00 or 11:30 P.M. on June 8. On cross-examination, the prosecutor asked if she told the grand jury that Anthony never left after 10:00 P.M. Mrs. Darnell answered that she could not recall that statement. Chuck and Mike argue that by failing to introduce further evidence of the prior inconsistent statement, the Commonwealth improperly attempted to impeach Mrs. Darnell’s testimony. It would have been proper, in their view, if some evidence of the grand jury proceedings were offered.

The prosecution has the right to cross-examine a witness as to inconsistent statements in a prior proceeding in order to impeach his credibility. This court has found no authority for the proposition that the failure of the impeaching party to prove that the witness made a prior inconsistent statement is a denial of the right of confrontation. None has been cited by Chuck or Mike in the prosecution of their appeal.

On September 27, counsel for Anthony Darnell moved for a psychiatric examination of Anthony to determine his competence to stand trial, as well as his competence at the time of the crime. The motion was denied. Chuck and Mike now urge that the motion raised a doubt as to Anthony’s competence as a witness. They insist this placed a duty on the trial court to hold a hearing, sua sponte, on Anthony’s competence to testify. Whitehead v. Stith, 268 Ky. 703, 105 S.W.2d 834 (1937). They contend that since Anthony was a major prosecution witness, his competency was crucial to a fair trial. It is also argued that Anthony’s possible incompetence to testify denied them their rights of confrontation and cross-examination.

Whitehead, supra, is not in point. There the witness was a child of tender years who testified he did not know what it meant to tell the truth. No such manifest signs of Anthony’s incompetence were present in this case. In Whitehead, supra, an objection was made. Here no objection to Anthony’s testimony was made and, therefore, there was no error.

This court is convinced that Chuck and Mike ought to be content and go on their way rejoicing because the indictment was amended to show a Class A Felony, rather than a Capital offense. Had Kentucky’s Death Penalty Statute not have been declared unconstitutional, under the evidence in this case, they may have received the extreme penalty of death.

The trial court failed to follow the mandatory pre-sentencing procedures imple-merited in the Kentucky Penal Code. KRS 532.050; Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977).

The judgments as to Chuck and Mike are affirmed. However, the judgments entered upon the jury verdicts as to each of them are now vacated and the case is remanded to the Greenup Circuit Court for resentenc-ing pursuant to the provisions of KRS 532.-050 and Brewer, supra.

All concur except LUKOWSKY, J., who dissents and files a separate dissenting opinion.

LUKOWSKY, Justice,

dissenting.

My noble and learned confreres have once again countenanced the impeachment of the exculpatory stories of defendants, told for the first time at trial, by direct evidence of and cross examination about their failure to tell these stories after receiving “Miranda” warnings at the time of arrest. They find the justification for this result in the harmless error rule enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and applied in Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976). I respectfully dissent.

Our opinion in “Niemeyer” was rendered on February 6, 1976. In unequivocal language, it holds that it is error to admit this type of evidence. In equally strong language, it points out that it is the duty of the Commonwealth Attorney to prosecute not persecute and cautions prosecutors against the use of such evidence. On the basis of overwhelming evidence and rationality of penalty, we found the error to be harmless beyond a reasonable doubt.

Since our decision in “Niemeyer” we have seen a parade of cases in which this error has reared its ugly head. Some of these cases have been reversed on other grounds. Others have been affirmed by application of the harmless error principle or because the error was not properly preserved for appellate review. Having seen the same error pass in review so many times, I am compelled to conclude that prosecutors are deliberately disregarding the teaching of “Niemeyer” in the hope of finding salvation in the harmless error doctrine. In other words, they are more interested in obtaining a conviction than in obtaining a conviction that will stick.

It may well be that we fathered this attitude when we failed to reverse “Niem-eyer”. We provided the tightrope of harmless error and perhaps that was enough to encourage zealots to walk it. However, one would have thought that their ardor would have been substantially dampened on June 17, 1976 when the Supreme Court of the United States delivered its opinion in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, in which it was held that the use of post arrest silence in this manner violated due process.

This case did not go to trial until October 4, 1976. By that time the bench and bar should have gotten the message of “Niem-eyer” and “Doyle” and avoided this error like the plague. Apparently such is not the case.

It seems to me that to approach this problem on a case by case basis by hopefully precise but sometimes nebulous characterization of error as either harmless or prejudicial is but to encourage the commission of such error. The time has come for us to take a more prophylactic approach. We should exercise our supervisory authority over the lower courts of Kentucky and hold that whenever this error is committed it will result in reversal and a new trial. If that should prove to be insufficient to eliminate this form of gamesmanship we should assess the costs of appeal and the new trial against the Commonwealth Attorney.

For the reasons given, I would reverse the judgment of the Greenup Circuit Court and remand the case for a new trial.


author: PALMORE, Chief Justice.

text:
    ROADRUNNER MINING, ENGINEERING & DEVELOPMENT COMPANY, INC., Gwynne W. Ford, Mary Auxier Hale, and William R. Clevenger, Movants, v. The BANK JOSEPHINE, a corporation, Respondent.
    Supreme Court of Kentucky.
    Nov. 18, 1977.
    W. Sidney Trivette, Gary C. Johnson, Pikeville, for appellants.
    Joe Hobson, Prestonsburg, for appellee.
   PALMORE, Chief Justice.

In a foreclosure suit brought by the Bank Josephine against Roadrunner Mining, Engineering and Development Company, Inc., Gwynne W. Ford, Mary Auxier Hale, and William W. Clevenger on five promissory notes the Pike Circuit Court entered a default judgment aggregating $271,877.89. Having failed in their efforts to have this judgment set aside, the defendants appealed to the Court of Appeals, which affirmed the judgment. Discretionary review has been granted because the case presents new questions with respect to CR 5.01 (requirement of service), CR 15 (amendment of pleadings), CR 54.03 (demand for judgment), and CR 55 (default judgment) that need to be resolved by this court.

The dates, face amounts, and unpaid balances demanded by the complaint were as follows:

Date Face amount Unpaid balance
1-18-1975 $161,653.92 $148,197.76
3-4- 1975 36,403.20 34,827.15
3-17-1975 48,629.76 46,618.52
5-23-1975 72,859.44 69,838.63
5-25-1975 42,235.68 40,490.86
Total demand $339,972.92

The suit was filed on November 24, 1975. Service of process on the several defendants was completed on May 5,1976. None of the defendants having responded, on June 7, 1976, the bank moved for a default judgment against them, but before having such a judgment entered, on June 10, 1976, it filed an amended complaint changing the amounts demanded on the notes as follows:

Complaint Amended Complaint Difference
$148,197.76 $148,482.76 $ 285.00
34,827.15 35,740.75 913.60
46,618.52 46,903.52 285.00
69,838.63 None (69,888.63)
40,490.86 40.750.86 260.00
Totals $271,877.89 (68,095.03)

The amended complaint explained that the fourth note, on which the original complaint had demanded $69,838.63, had been paid through sale of a rotary drill pursuant to a security agreement. It did not explain the adjustments by which $1743.60 was added to the amounts demanded on the other four notes.

A default judgment for the amounts demanded by the amended complaint was entered on June 11, 1976, but on June 16, 1976, the bank moved to set it aside because it did not correctly set forth the personal property upon which plaintiff had a lien to secure the various notes. The motion was granted and the judgment was set aside on June 18, 1976. Meanwhile, on June 16, 1976, the bank filed a second amended complaint correcting the descriptions of the various items of personal property which had been hypothecated as security for the notes. The final default judgment, from which the appeals were taken, was entered on June 18, 1976, the same day the first judgment was vacated.

In the course of the next two weeks the defendants filed motions asking that the judgment be set aside and that they be permitted to file responsive pleadings. Following arguments of counsel the motions were denied.

CR 55.02 authorizes the trial court to set aside a default judgment for “good cause shown ... in accordance with Rule 60.02.” Among the grounds enumerated in CR 60.02 the only one applicable in this instance would be that the judgment was void. The appellants contend it was void because (1) the second amended complaint was filed without leave of court or consent of the adverse parties as required by CR 15.01 and (2) one or both of the amended complaints asserted “new or additional claims for relief” without the issuance of a new summons as required by CR 5.01.

With respect to the first point, CR 15.01 provides that a party “may amend his pleading once as a matter of course at any time before a responsive pleading is served . . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” While it might be argued that leave of court should not be necessary when the adverse party is in default and is not entitled to notice under CR 5.01, CR 15.01 does not expressly allow for such an exception. Technically, therefore, the amended complaints in this action were unauthorized when filed. Nevertheless, what better “leave of court” could there be than a judgment entered pursuant to the amendment? As in the familiar instance of principal and agent, that which could have been authorized in advance can be ratified afterward.

The second point is more difficult. The question is whether an increase in the amount of recovery sought is an additional claim for relief within the meaning of CR 5.01. Surprisingly, the woods are not full of law on the subject, but what little there is suggests a concurrence in holding that a default judgment cannot be taken for more than was claimed in the pleading or pleadings to which the party in default had the opportunity of responding. For example, A sues B for $5,000; B knows that he owes it and for that reason chooses not to contest it; A then increases his claim to $10,000; B must be given the opportunity of contesting it; that opportunity is provided by service of a summons, the traditional vehicle of due process. See, for example, Pruitt v. Taylor, 247 N.C. 380, 100 S.E.2d 841 (1957), and Freeman on Judgments §§ 1292, 1295 (5th ed. 1925).

This, however, is an unusual case. Although the amounts claimed by the amended complaints on four of the five notes exceeds by a total of $1743.60 the amounts set forth in the original complaint on those particular counts, the aggregate sum demanded by the amendments and carried into the default judgment is $68,095.03 less than the total recovery originally sought. To that extent, of course, we suspect that the defendants would find the amendments perfectly agreeable. After all, their default exposed them to a judgment of $339,972.92 rather than $271,877.89.

During oral argument of the case it was conceded by counsel that the sum of $1743.60 represented recoverable costs incurred by the bank in selling the rotary drill to satisfy the fourth note. This charge was simply spread over the remaining four notes. From our inspection of the various financial statements and security agreements appended to the complaint as exhibits it appears that all of the notes were secured by liens on all of the personal property. Thus it seems to us that it would have been permissible for the bank to reduce its claim on the fourth note from $68,838.63 to $1743.60 instead of allocating the latter sum as a charge on the other notes. That it chose the less orthodox course was more a matter of bookkeeping than of legal substance. It was not compelled to credit the entire proceeds of the sale to the fourth note alone. Under the circumstances we hold that the $1743.60 addition to the other four notes did not constitute a new or additional claim within the meaning of CR 5.01.

For the reasons herein set forth the judgment of the Court of Appeals is affirmed.

All concur.

      . For the sake of simplicity, the figures used in this opinion represent only the amounts of principal, excluding interest.

      . The statutes applicable in North Carolina were comparable with our Civil Rules in the same procedural area. Whereas North Carolina’s G.S. § 1-226 provided, “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in his complaint,” our CR 54.03 says, “A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.”

      . Each of the security agreements covered “all sums of money which BANK heretofore has advanced, loaned or hereafter advances or lends to DEBTOR,” etc.


author: JONES, Justice.

text:
    Larry Joseph BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 18, 1977.

      Kevin M. McNally, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

On July 19, 1976, Larry Joseph Brown, alias Nathaniel Hardin, was indicted on three counts: first degree robbery (KRS 515.020); murder (KRS 507.020); and theft by unlawful taking (KRS 514.030). At a pre-trial conference by agreement of counsel, the indictment was amended to read: “Nathaniel Hardin alias Larry Joseph Brown.”

The jury found Brown guilty on all counts. It fixed his punishment at 20 years on the robbery conviction, life on the murder conviction, and 5 years on the theft conviction.

Brown asserts three grounds for reversal of the convictions: (1) error resulted when a police officer referred to him by his nickname, “Killer”; (2) the trial court allowed into evidence an involuntary confession; and (3) photographs of the deceased were allowed into evidence over the objection of his attorney.

Chester Coleman Parke was a route salesman for the Paul Myers Company. On June 3,1976, he called on Daley’s Market on West 4th and Schmidt Streets in Lexington, Kentucky. The owner, Robert Lee Williams, showed Mr. Parke a .22 caliber pistol which he kept in the store. Five or ten minutes after Parke arrived at Daley’s Market, two black men entered the store. One of them asked for a candy bar. When Williams went to the cash register, one of the men pulled a pistol on Williams. Williams attempted to defend himself with his pistol. However, one of the robbers shot and killed Williams.

Johnny Christopher Jones, a co-indictee, testified that on the morning of the murder Brown came to his house. Brown wanted Jones to accompany him in a planned robbery. At that time, Brown had a .38 caliber pistol. Jones and Brown went to Daley’s Market. Jones testified that Williams began the shooting. Jones then fled the store and Brown fled shortly afterwards. Jones testified that Brown told him he had shot the man in the store.

Jones also admitted to participation in a theft from an automobile, where he took the sum of $300 or $400. He further testified he gave the money to Brown. When he and Brown were arrested, Brown had the money on his person.

Clyde Norton, manager of the J. T. Bar-rick Hardware, had $314.27 in the glove compartment of his automobile. When he returned from lunch he found his car had been broken into and the money taken. When Brown was arrested on June 4, 1976, a police officer removed from Brown an envelope containing $300, which was marked “J. T. Barrick Hardware.” Norton identified the envelope as containing the money taken from his car.

Other evidence was that a Lexington police officer obtained a finger print that was identical to Brown’s. A .38 metal slug was retrieved from the scene of the crime. A Harrison-Gilroy test on Brown was conducted by a Kentucky State Police laboratory technician. The technician testified that the test, which is used to determine whether any residue from the firing of a pistol is present on the person, showed a positive reaction from the swab taken from the palm of Brown’s right hand.

On June 4, 1976, Larry Brown made a voluntary statement to Detective Kirby Allen, a Lexington Metropolitan police officer. In that statement, Brown, after being advised of his constitutional rights, stated: “DATE 4 June 1976 PLACE 1409 Forbes Rd. Lexington. Kv. TIME STARTED 1825 hrs.

I, the Undersigned, Larry Brown, am 28 years of age, have been born on July 5. 1947 at Atlanta. Georgia. I now live at 191 Northeastern. Lex. Kv. I have been duly warned and advised by Pet. Kirby Allen, a Lexington Metropolitan Police Officer, that I am charged with Robbery and Murder: that I do not have to make any statement or answer any questions, and any statement I do make or question I do answer will be used against me at any later hearing or trial; that I have a right to an attorney and that if I cannot afford an attorney, one will be appointed me free of charge, at this time; and that I have a right to stop the interview at any time I wish.
I do not want to talk to a lawyer, and I hereby knowingly and purposely waive my right to the advice and presence of a lawyer before and during any questioning or at any time before or while I voluntarily make the following statement to the aforesaid person, knowing that anything I say can and will be used against me in a court or courts of law.
I declare that the following voluntary statement is made to the aforesaid person of my own free will without promise of hope or reward, without fear or threat or physical harm, without coercion, favor or offer of favor, without leniency or offer of leniency, by any person or persons whomsoever.
X Larry Brown Signature of person giving voluntary statement
Q. #1 — What happened yesterday at Daley’s Market?
A. #1 — He pulled a gun and fired at me, I shot at him as I ran out the door.
Q. #2 — Did you go into the store to hold the man up?
A. #2 — Not at first.
Q. #3 — What do you mean not at first?
A. #3 — I went in to buy a candy bar.
Q. #4 — When did you start to think of robbing the man?
A. #4 — On the spur of the moment.
Q. # 5 — Where did you carry your gun?
A. #5 — In my belt. I didn’t pull it out at first. I just showed it to him and he started shooting at me.
Q. #6 — Who was with you?
A. #6 — Johnny Jones.
Q. #7 — Can you add or remember anything else?
A. #7 — That’s it.
End of Statement.
Witnessed By: Robert Giles
Transcribed By: Kirby Allen #4455
Time Completed: 1840 hrs.
X Larry Brown Signature”

Brown had made a previous statement in which he denied any knowledge of the robbery or theft. Brown did not take the witness stand and made no defense against the evidence presented against him.

This court now turns to the issues Brown raises in support of his argument for reversal. Prior to the trial, Brown’s attorney requested that the Commonwealth’s Attorney refrain from expressing to the jury Brown’s nickname, “Killer.” The colloquy between the court, the Commonwealth’s Attorney, and Brown’s counsel, at the pretrial conference concerning this question, is as follows:

“MR. BARBIERI: I would like for the defendant to be referred to throughout this proceeding as Nathaniel Hardin or Larry Brown, but not any other name. Any other name, he doesn’t use.
THE COURT: I think you might as well be specific as to what you do not want the Commonwealth to refer to.
MR. BARBIERI: I do not want the Commonwealth to refer to my client as ‘Killer’ either before or after his name.
MR. FAMULARO: It would be the position of the Commonwealth that, if, in fact, this is a name he has used and has gone by, and it may be a name under which people know him by and that name alone, and to prohibit them from saying that, that would be to detract from their identity and knowledge of him.
THE COURT: I think it can be handled, Mr. Famularo, without getting into it by saying, ‘Do you know this person though you may know him by another name?’ I think it is fair to let the witness say he knows him and knows him by name though that name may not be Nathaniel Hardin or Larry Brown, if that happens to be the case. I think you can handle it that way. If, in fact, it is not elicited by you —
MR. FAMULARO: I won’t do that if the Court tells me not to, but I worry about—
THE COURT: I think you should try to phrase your questions in such a way as to try to avoid it. If that is, in fact, a nickname, Mr. Barbieri, that is not the Commonwealth’s fault. Do you understand that, Mr. Barbieri?
MR. BARBIERI: Yes, Your Honor, I understand that, but, at the same time, I don’t want him to solicit that name.
THE COURT: To that extent, I will direct that the Commonwealth will not intentionally try to elicit that; in fact, they should try to avoid that if possible and not to make reference to that during the course of the trial. Any thing else?” (Emphasis added).

Despite the trial court’s ruling, Detective Giles a police veteran of 13 years, testified that he was called upon to assist in the investigation of Larry Brown on June 3, 1976. After receiving information about the murder he was asked:

“Q. Did you then make an attempt to locate the whereabouts of Larry Brown alias Nathaniel Hardin?
A. I attempted that the following day. Q. Where was the defendant located and when?
A. The following day after receiving the nickname as a suspect, Larry Brown, alias ‘Killer.’ ”

Brown’s counsel immediately moved for a mistrial on the ground that Officer Giles referred to Brown as “Killer” in open court before the jury. He contended this statement irreparably harmed Brown and caused such prejudice so as to prevent him from obtaining a fair trial. The court overruled the motion, but gave a strong admonition. The incident is unfortunate. This court notes, however, that there was no deliberate attempt by the prosecutor to elicit the nickname. Therefore the trial court’s order was not violated. It clearly directed the prosecutor not to deliberately elicit the nickname.

Brown cites a number of cases in support of his position that this was so prejudicial as to affect his substantial rights and that a mistrial should have been declared. It is true that this court has often denounced placing labels on the accused, but the cases cited by Brown are distinguishable from the facts in this case. Cf. Spirko v. Commonwealth, Ky., 480 S.W.2d 169 (1972). This court is not convinced by Brown’s argument that the nickname indicates such a history of violence that it is prejudicial in a defense against a charge of murder. The admonition by the trial court follows:

“THE COURT: (To Jury) Ladies and Gentlemen of the Jury, something has just happened that shouldn’t have happened. The police officer volunteered something that he shouldn’t have volunteered. It has nothing to do with the trial of this case, somebody’s possible nickname. We have all watched Flip Wilson and we know that Geraldine has a boyfriend by the name of ‘Killer.’ It means nothing to this case; it has nothing whatsoever to do with this case whether somebody at some point in time had a nickname. I think you jurors have enough common sense not to let this occurrence spoil a trial. We have been here all day, and I know you have enough common sense to know that that doesn’t have anything to do with this trial of this case or as to the question of the guilt or innocence of Mr. Hardin. So, you have heard it and I can’t go in there an erase what you have heard, but I am going to allow your good common sense to know that it has nothing to do with the trial of this case and I know you won’t attached any significance to it; it just shouldn’t have come in and I think that is known.”

This court is of the view that Brown’s nickname, “Killer” is not such as to indicate a violent character or that he killed in the past. The trial court pointed out that the name “Killer” is given to a character created by the comedian, Flip Wilson. Flip plays the part of Geraldine whose boyfriend is “Killer,” noted for his romantic endeavors and not his violence. On October 25, 1977, a sports writer referred to the Kentucky football team as follows: “Curci’s Killers Thrive on Strength, Speed.” On November 1,1977, another sports writer for the Courier Journal stated: “Lee Corso, still glowing following Indiana’s big victory over Michigan-Killer Minnesota, said . . . we’re having a great year.” Those terms were used to show the competitive spirit of the Kentucky Wildcats and the Indiana Hoosiers.

Admittedly, it would have been better if the veteran detective had not mentioned Brown’s alias as “Killer.” However, it is difficult for this court to see how a jury could be prejudiced in this case, especially in light of the trial court’s strong admonition to the jury. This court is of the view that under the totality of the evidence and Brown’s confession; coupled with the trial court’s admonition, the irregularity was not prejudicial to Brown's substantial rights.

Brown’s next claim of error concerns the admission of evidence. He argues that the trial court committed reversible error and denied his right against compulsory incrimination by permitting introduction of a confession when he was ill from heroin withdrawal. On August 17, 1976, Brown moved to suppress his pretrial confession. After a full evidentiary hearing, the trial court made extensive findings of fact and denied the motion. The trial court found that Brown’s confession was free and voluntary and that he was not suffering symptoms of drug withdrawal. The question presented here is whether the factual determination of the trial court and its ruling was erroneous. This court is of the view that it was not. The trial court also found that there was no evidence, other than that of Brown, that he was a heroin addict. The trial court found also that Brown was advised of all his constitutional rights and that he voluntarily talked with the police and understood he had a right to remain silent. This court has established guidelines for trial courts faced with the question of the voluntariness of a confession:

“The procedure to be followed when the voluntariness of a confession is challenged was laid out in Bradley v. Commonwealth, Ky., 439 S.W.2d 61 (1969). On a motion to suppress, the trial court must conduct an evidentiary hearing in chambers. Only if he is satisfied from substantial evidence that the confession was voluntary (and is not otherwise inadmissible) can it then be heard and considered by the jury. Constitutionally, this is all that is required, and if the trial court’s determination is supported by substantial evidence it would be conclusive, cf. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), but for the additional protection prescribed in Bradley to the effect that if the defendant chooses to carry the question to the jury he may do so with the benefit of an admonition that the evidence shall not be considered unless the jury believes that the confession was made voluntarily and free of coercion.” Britt v. Commonwealth, Ky., 512 S.W.2d 496 (1974).

It is obvious that the trial court followed the procedure outlined in Britt, supra. Thus, the trial court’s ruling was not clearly erroneous.

Brown’s final argument is a constant recurring one. It relates to the introduction of photographs. The Commonwealth’s Attorney introduced ten photographs, all of which were admitted in evidence as exhibits. Seven of the photographs depict Daley’s neat, well-stocked market (the scene of the crime). Another is a photograph of the meat counter at the back of the store near the cash register. It shows the area where fingerprint powder had been applied to the meat counter. No objection was made to the introduction and admission of these eight photographs. The other two pictures show the body of Williams [the deceased]. When these were introduced, counsel for Brown strenuously objected to their introduction and admission. He contended the pictures were “gruesome,” and were not essential evidentiary material. The first photograph shows the body of Williams lying on the floor, face up, with blood on the front of his shirt in the area of his upper chest. The second photograph shows Williams’ body at the morgue. His shirt was open, exposing his bare chest. It depicts a wound in his upper chest where the bullet that caused death entered his body. The trial court overruled Brown’s objection and denied his motion for a mistrial.

Photographs of a victim of a homicide or the scene of a crime constitute demonstrative evidence which is often an aid to the jury in the trial of a case. It is true that “one picture is worth more than 10,000 words.” A famous author phrased it in this fashion, “A picture shows me at a glance what it takes dozens of pages of a book to expound.”

In this advanced technological age of television, movies, and the news media, children, as well as adults, are exposed to more gruesome, repulsive and nauseous depictions of human misery and tragedy than that shown in prosecutions for murder, manslaughter or other types of homicide.

On a November day in 1963, the viewing public witnessed the assassination of President Kennedy as his motorcade made its way through the streets of Dallas, Texas. Subsequently, the public witnessed the murder of the President’s assassin as he was brought from the jail to a courtroom. Five years later, the public again witnessed the assassination of Attorney General Robert Kennedy. Later, the violent death of Martin Luther King was shown to the viewing public, as well as the abortive attempt to kill the governor of Alabama. In today’s society, violence and tragedy walk hand in hand. They are not strangers to the viewing public and prospective jurors.

The statement in Brown’s brief, “It would appear that in this jurisdiction all photographs of the scene of the crime are now admissible no matter how heinous the crime,” is accurate to the extent that a photograph that is otherwise admissible does not become inadmissible simply because it is gruesome and the crime is heinous. Thus the trial court properly admitted in evidence the photographs about which complaint is made.

The judgment is affirmed.

All concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Chinese Proverb.

      . Turgenev, Fathers and Sons, Ch. 5 (1962).


author: REED, Justice.

text:
    The WESTERN CORPORATION, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 18, 1977.

      Joseph S. Freeland, Paducah, for appellant.
    Ed W. Hancock, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for appellee.
   REED, Justice.

Appellant, The Western Corporation, and two of its employees, were charged with four counts of exhibiting an allegedly obscene motion picture entitled “Deep Throat.” The jury convicted The Western Corporation on all counts and fixed as penalty a fine of $1,000 on each count. The jury was unable to agree concerning the guilt of the two employees, the manager of the theatre and the projectionist, and the charges against them were subsequently dismissed on motion of the prosecution.

The Western Corporation filed motion for appeal under KRS 21.140(2). We have delayed disposition because of the pendency of several federal cases posing federal constitutional issues before the Supreme Court of the United States. Those cases have now been decided. We have agreed to grant the motion for an appeal, but we affirm the judgment for the reasons later stated.

Western, the corporate operator of a motion picture theatre in Paducah, Kentucky, was tried and convicted for violation of KRS 436.101, the state obscenity statute in effect at the time of the exhibition of the motion picture. This statute has undergone legislative revision and has now been succeeded by KRS 531.010, a part of the Kentucky Penal Code.

The evidence for the prosecution established that on April 12, 1974, the Judge of the Paducah Police Court, accompanied by two police officers, an attorney for the City of Paducah, and an assistant Commonwealth’s Attorney, went to the Fourth Street Cinema, operated by Western, and watched the showing of the film “Deep Throat” in its entirety. At the conclusion of the showing of the film, police officer Eberhardt signed and swore to an affidavit for a warrant for the seizure of the film. The police judge immediately issued the warrant which was forthwith executed by the officer.

The next day, April 13, officer Eberhardt went again to the Fourth Street theatre where another print or copy of “Deep Throat” was being shown and, after viewing the entire picture, made an arrest, and seized another copy of the film. On April 22, officer Eberhardt entered the theatre and viewed approximately 15 minutes of the film “Deep Throat.” He determined that it was identical to a 15-minute portion of the film he had seen on April 12 and April 13, 1974, and made an arrest. Later in the day, on April 22, 1974, Eberhardt again went to the theatre. This time he saw approximately 18 minutes of the subject film which he determined was identical to portions of the film he had seen on April 12 and 13 in its entirety. Eberhardt again made an arrest.

The movie “Deep Throat” was introduced in evidence and has been viewed by this court. It contains repeated scenes of actual sexual intercourse, anal sodomy, fellatio and cunnilingus. The story line consists entirely of the sexual activities of Miss Linda Lovelace. We failed to find any serious literary, artistic, political or scientific value in this motion picture. We, therefore, agree with the jury’s conclusion that this exhibited material was obscene and vio-lative of contemporary community standards under the tests prescribed in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

Western argues that KRS 436.101 was unconstitutional under the First and Fourteenth Amendments to the Constitution of the United States. This argument is based on the assertion that KRS 436.101 did not comply with the standards prescribed in Miller v. California, supra. Although Western asserts that the Supreme Court of the United States did not intend the Miller standards to be prospective only, that contention has been rejected by the Supreme Court in an appeal concerning the same motion picture, which was the subject of a federal prosecution in Kentucky. In Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (decided March 1, 1977), the Supreme Court held that part (c) of the Miller test was not retroactive, but that part (b) of the same test, wherein the court enumerated specific categories of material, did not purport to make criminal, for the purpose of the federal statute proscribing the exhibition of obscene material, conduct which had not previously been thought criminal. We have no difficulty in concluding that our previous decisions concerning the constitutionality of KRS 436.101 in light of the decision in Miller were correct. In Hall v. Commonwealth ex rel. Schroering, Ky., 505 S.W.2d 166 (1974), we construed our statute as consistent with the explications in Miller: “The hard core pornography with which we are here concerned has consistently been held by this court to constitute obscene material within the proscription of the statute prior to our decision in Hall." Keene v. Commonwealth, Ky., 516 S.W.2d 852, 855 (1974).

In Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (decided May 23, 1977), the Supreme Court rejected a contention that the federal obscenity statute, 18 U.S.C. § 1461, was unconstitutionally vague. The court held that the judicial constructions of the statute flowed directly from its decisions in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), Miller v. California, supra, United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), and Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

Our decisions cited herein make it quite clear that appellant was forewarned in sufficiently specific terms that the depiction in this film of the actual sexual conduct under the circumstances presented was proscribed because it was hard core pornography.

Certainly, we were more specific than was the concerned state court in Ward v. Illinois, 767 U.S. 431, 97 S.Ct. 2085, 52 L.Ed.2d 738, which was decided by the Supreme Court of the United States on June 9, 1977. In that case the Supreme Court’s majority opinion declared: “We agree with the Illinois Supreme Court, however, that ‘in order that a statute be held overbroad the overbreadth “must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” ’ ” The Supreme Court of the United States held that since it was plain enough from prior cases decided by the Illinois court and from its response to Miller that the state court recognized the limitations on the kinds of sexual conduct which could not be represented or depicted under the obscenity laws, the Illinois statute could not be held to be unconstitutionally overbroad. We, therefore, again reject the contention that KRS 436.101, as it was construed by the decisions of this court prior to the time of the commission of the offenses by Western, was unconstitutional under either the First or Fourteenth Amendments to the Constitution of the United States.

Western’s next complaint is that the procedure used for seizure of the film was unlawful. The same procedure was approved and recommended in Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). A neutral magistrate viewed a public showing of the film and then issued written authority to a police officer to seize the film as evidence of a violation of the obscenity statute. We are not impressed with Western’s argument that the seizure violated the requirements of Section 10 of the Constitution of Kentucky. Although we entertain a real doubt that public exhibitions of films where admission is charged and there is no legitimate expectation of privacy are within the ambit of the protection of privacy policy of Section 10 of our state constitution, we hold that the specific affidavit of officer Eber-hardt met the requirements of Section 10, if it be conceded, arguendo, that Western’s operation was within the scope of protection at the time of the seizure.

Western asserts that there was not sufficient evidence from which the jury could conclude that the film seen by officer Eberhardt on April 13 and twice on April 22 was identical to the film seen and seized on April 12,1974. Eberhardt testified that the film seen on April 13, 1974, in its entirety was identical to that seen on April 12,1974, and the film segments seen on April 22 were identical to those segments of the film introduced in evidence at the trial. The evidence was established that the marquee or billboard in front of the theatre on each of these occasions showed that the film “Deep Throat” would be shown. We think this evidence was sufficient to withstand a motion for directed verdict. In common human experience, an advertised motion picture film generally is shown as advertised as is usual with things of that nature. It would appear that the widely advertised motion picture film given the circumstances presented here was shown in this theatre on these occasions, and there is no claim to the contrary.

Western also complains that the instructions were erroneous. The first contention concerning the inadequacy of the instructions is bottomed on the proposition that the trial court should not have permitted separate convictions on the second, third and fourth counts for violation of the obscenity statute. Western indicates that while a $1,000 fine for the first count might be sustainable upon a conviction, nevertheless, for the second, third and fourth proven instances of violation of the statute, he should have been fined only $500 instead of $1,000. KRS 436.101(2) related to punishment and provided that violations of the statutes are punishable by fine of not more than $1,000 or imprisonment for not more than six months, or both, for the first offense, “plus $5.00 for each additional unit of material coming within the provisions of this chapter, which is involved in the offense, not to exceed $10,000 . . . plus one day for each additional unit of material coming within the provisions of this chapter and which is involved in the offense, such basic maximum and additional days not to exceed 360 days in the county jail, or by both such fine and imprisonment.”

A reading of the statute makes it abundantly clear that each proven occurrence of the showing of an obscene motion picture was a separate violation of law and was punishable as such. If, on the occasion of the exhibition of “Deep Throat”, Western had scheduled a double or triple feature, a different question might be presented; but these were entirely separate exhibitions of this motion picture for which admission was charged. These ■ exhibitions clearly are separate offenses under KRS 436.101(2).

The second claimed error in the instructions is so devoid of merit as not to warrant discussion. The instructions as given clearly and specifically followed the Miller standards and the standards delineated by this court at the time the offenses were committed.

Western’s final complaint is addressed to a provision of the final judgment entered in which the trial court adjudged that if there was no successful appeal the film was ordered to be destroyed. This provision is plainly consistent with KRS 436.101(9) which provided that upon conviction of the accused the court could, when the conviction becomes final, order the obscene matter destroyed. There was an additional provision in the order that recited that the movie Deep Throat “should not be shown any further in this County.” Western does not seriously argue that this prohibition is inappropriate as it relates to it, assuming, of course, the conviction was proper. The complaint Western makes is that the prohibition is overbroad in that it apparently applies to all persons and not merely those who were parties to the case.

The jury not only convicted Western as required by the statute, it found the film obscene. The only party to this appeal was properly convicted, as we have determined. We will not indulge in speculation concerning the overbreadth of the provision against showing the film and the parties to whom that prohibition applies. Certainly, Western has no standing to question the operation and validity of the questioned portion of the final order.

The judgment is affirmed.

All concur.