author: FAULKNER, Justice. JONES, Justice

text:
    In re Patricia MOSES et al. v. PITNEY BOWES, INC., a corporation. Ex parte Patricia Moses et al.
    78-79.
    Supreme Court of Alabama.
    March 16, 1979.
    James L. Shores, Jr., Birmingham, for petitioner.
    James C. Stivender, Jr., Gadsden, for respondent.
   FAULKNER, Justice.

WRIT QUASHED AS BEING IMPROVIDENTLY GRANTED.

BLOODWORTH, MADDOX, ALMON, EMBRY and BEATTY, JJ., concur.

JONES, J., concurs specially.

TORBERT, C. J., and SHORES, J., re-cuse.

JONES, Justice

(concurring specially).

This case poses a rather complex problem as to the scope of review issue. The Court of Civil Appeals’ affirmance is grounded on the notion that “review by certiorari,” prescribed in the Workmen’s Compensation Statute, is the old common law certiorari review, or at least some modified version of this common law writ. This may have been the original intent of the framers of the Minnesota Act from which our Act comes, though a more explicit reason is disclosed in the early decisions of the Minnesota Supreme Court. The overriding purpose of the compensation law was to meet a demanding social need arising from industrial injuries. Appeals from lower court awards were seen as defensive strategy to delay payment. Appellate review was thus provided by petition for writ of certiorari to 1) allow the appellate court to deny the petition summarily (a practice which never occurred either in Minnesota or Alabama), and 2) eliminate the necessity for a Bill of Exceptions (Transcript of the Evidence).

It is on this premise that the Act requires the trial judge to make a Finding of Facts and Conclusions of Law. The appeal, as originally contemplated, was on the record proper to test the trial Court’s legal conclusions based on its Finding of Facts. We must remember that Minnesota’s Act was one of the first in the nation (1913), and at that time the social reformers could not visualize any factual issues (except the typical “swearing matches”) which the trial judge would not conclusively resolve in his Finding of Facts; and appeals were seen as mere means of delay by the employer or, in legitimate cases, a means of resolving disputed interpretations of the Act. Therefore, appellate review by way of the common law writ of certiorari seemed appropriate because the appellate court would either decline its permission to review (thus denying the petition and, technically, not ordering the record below certified up), or it would review its legal validity on the record proper; and, if the final decree was proper and legal on its face, affirm. It was simply inconceivable that the claimant would appeal. The Act was so simple — -based on a no-fault concept — the only way a claimant could lose would be to have a disputed factual issue resolved against him and this would not support an appeal.

This myth was indeed short-lived. One of the early Minnesota appeals posed the unpredicted: The assignment of error challenged the trial court’s Finding of Facts as unsupported by the evidence. The Minnesota Supreme Court, consistent with the literal language of their Act, could have confined their review within the four corners of the common law writ of certiorari and summarily affirmed. But they did not; instead, they said (and I think to their credit) that a Bill of Exceptions was appropriate in order to test the Finding of Facts against the evidentiary support therefor. Thus, out the window went review by common law certiorari.

This is the precise holding of Ex parte Sioss-Sheffieid Steel & Iron Co., 207 Ala. 219, 92 So. 458 (1922). There, this Court, expressly relying on the Minnesota precedent, held it appropriate for the petition to include a Bill of Exceptions for appellate review of the issue whether the Finding of Facts below was supported by the evidence. The language of our cases has attempted to retain some degree of distinction between workmen’s compensation scope of review and that of other cases. That distinction is shown in the absence from the workmen’s compensation opinions of the terms “preponderance of the evidence” and “unless plainly and palpably wrong or manifestly unjust.” There was a time in our appellate history (in the non-compensation context) when these latter terms were more frequently exercised; and, as a sometimes occurrence, cases were reversed on a “weight of the evidence” or a “preponderance of the evidence,” standard. While our opinions in noncompensation cases retain this “loophole” type language (and I’m not for dropping it) in defining our ore tenus scope of review rule, no case has been reversed on this weight of the evidence standard since I have been on the Court, or to my knowledge in the last 50 years. (To be sure, I found several cases that used the expression, “palpably wrong and manifestly unjust,” to reverse, but each of these is in the context of “no evidence to support,” which is no different from the workmen’s compensation standard.) My only point is that I doubt the practical justification for the distinction.

But back to the instant issue: The language from Ex parte Sloss-Sheffield (“. . . admissibility of evidence will [not] be . considered”) is dictum and is unsupported by the cases cited. None of these (nor others I have found) involve admissibility of evidence. All of the cases that echo the theme, “any legal evidence to support the findings,” are dealing with conflicting legal evidence. I question whether we should approve a standard of review that permits a workmen’s compensation decree to be affirmed that is based on evidence which, in substantial part, is patently inadmissible. And, because this Court rejected review by common law certiorari from the very beginning, I would prefer that we make no distinction between the scope of review standard in workmen’s compensation and non-workmen’s compensation cases. But the Court of Civil Appeals, whose appellate jurisdiction embraces these appeals, consistently maintains the validity of this distinction, and six of my fellow Justices (two Justices recuse) are totally unimpressed with my no distinction contention and its precedential premise. Therefore, in the spirit of unanimity, I reorient my premise: It is more important that the rule of review be definitive and well understood by Bench and Bar than what rule obtains.

A brief word of explanation of this narrow scope of review Rule may be helpful: Unless counsel for the nonprevailing party is convinced that the trial court’s Finding of Facts is totally unsupported by any legal evidence, his appeal must find its basis in erroneous conclusions of law; and, in such cases, a transcript of the evidence is sur-plusage to the record on appeal.

Admittedly, appellate purists can be heard to say: This Rule invites counsel in a weak case (where he has some legal evidence but of such low probative force as to virtually assure an adverse finding) to offer evidence which is patently inadmissible but of such high probative value, if admitted, as to virtually assure a favorable finding. If he convinces the trial judge to admit the proffered illegal evidence, (After all, what can he lose?), he not only wins his case, he renders it as well — appellate review being unavailable. (Indeed, the instant case borders on this extreme example.) To this contention we can only answer, “But therein lies the distinction between the scope of appellate review in workmen’s compensation and non-workmen’s compensation cases.” And, having so answered, we can then utter a little silent prayer that just maybe this hypothetical situation will not be a common occurrence.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Charles A. BOSWELL, as Commissioner of Revenue of the State of Alabama v. The SAMSON BANKING COMPANY, a Banking Corporation.
    Civ. 1572.
    Court of Civil Appeals of Alabama.
    Dec. 13, 1978.
    Rehearing Denied Jan. 17, 1979.

      William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue and Asst. Atty. Gen., John J. Breckenridge, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    Frank J. Mizell, Jr., Montgomery, for ap-pellee.
   BRADLEY, Judge.

Plaintiff, Samson Banking Company, held certain funds, claims to which were made by defendant, Charles A. Boswell, as Commissioner of Revenue of the State of Alabama, under the Alabama Uniform Disposition of Unclaimed Property Act, Tit. 47, sections 314, et seq. Code of Alabama 1940 (Recomp.1958) (Supp.1973) (currently Code of Alabama 1975, sections 35-12-20, et seq.). Plaintiff filed a complaint seeking declaratory, injunctive and other relief from defendant’s claims. This cause was submitted to the Circuit Court of Geneva County upon the pleadings, stipulated facts, exhibits and oral testimony. The trial court, sitting without a jury, entered findings of fact and a decree in favor of plaintiff, holding that Samson Banking Company was entitled to deduct certain service charges from the deposits in question and that defendant was entitled only to such amounts remaining thereafter which were not returned to the depositor. Defendant appeals from this decree. We reverse.

The facts giving rise to this appeal are as follows. Plaintiff (hereinafter referred to as “the bank”) is an Alabama banking corporation with its main office and place of business in Samson, Geneva County, Alabama. The bank’s general policy is to assess a three dollar per month service charge on “active” checking accounts, but no such charge is made when there have been no ' recorded transactions concerning that account within the past two or three months. Provision for the assessment of the service charge is found in the signature card signed by each depositor. Each of those cards provides in pertinent part:

It is agreed that a service charge may be made by the bank each month for handling this account, and the amount thereof shall be charged against this account.

The bank is subject to the supervision of the Federal Deposit Insurance Corporation (FDIC). Because of the relative inactivity of some of the bank’s checking accounts, examiners of the FDIC requested in 1958 that the account cards for these inactive accounts be segregated from those of the active accounts and placed in a so-called dormant category for control purposes.

These dormant accounts, listed in Exhibit A to the stipulation of facts, total approximately 248 in number. Prior to the deduction of the service charges by the bank, over one-half of these dormant accounts had a balance of less then ten dollars, and approximately fifteen of these accounts had a balance of more than one hundred dollars.

After the segregation of these inactive accounts the bank ceased sending monthly statements to the depositors whose accounts had been classified as dormant. No service charges were assessed against these dormant accounts.

On July 14, 1971 the bank assessed a “deferred accumulative” service charge on each of the dormant accounts. The aggregate amount of these charges was $4,172.60. In most instances the amount of the individual charge equalled the balance in the account. The effect of these assessments was to reduce to zero the balance in all but twenty-six of the dormant accounts. The balances remaining in those accounts which were not eliminated by the service charge were either returned to the depositor or paid to the State.

On September 19, 1972 the bank’s board of directors adopted the following resolution:

RESOLVED, That the Cashier of the Bank is hereby authorized and directed to take dormant accounts on the Bank’s books into service charges; and
RESOLVED FURTHER, That these accounts each be charged $3.00 per month for service charges until each such account is eliminated; and each and all of said accounts are hereby approved for charging off in the manner aforesaid.

The only testimony at trial was that of two of the bank’s employees. The first witness, Mrs. Jonnie Faye Avant, worked at the bank from 1955 until 1977 as a “ ‘jack of all trades’ in helping keep the bank’s books.” She testified that the funds in the dormant accounts remained payable and de-mandable by the customer both before and after the segregation of those accounts; that during her employment with the bank no service charge had ever been assessed against dormant accounts until the July 1971 assessment; that the bank did not notify any of its customers that his or her account had been classified as dormant, nor had the bank been required to do so by the FDIC or anyone else; and, that if regular service charges had been assessed against the dormant accounts from 1958 on, the balances of practically all of those accounts would have been reduced to zero long before 1971, but that, pursuant to FDIC instructions, no service charges had been made.

The other witness was Mr. James H. Duke, the bank’s executive vice-president. His testimony indicated that services charges on the dormant accounts had been “deferred” from 1958 until 1971. He stated that during this period the bank had received no further instructions from the FDIC regarding the dormant accounts and that the bank was “afraid to” assess service charges against those accounts during this period because every time the FDIC examiners inspected the bank, one of the first things they looked at was to see if there had been any changes in the balances of the dormant accounts. His testimony further indicated that the funds in the dormant accounts were payable and demandable by the depositor up until the July 1971 assessment, after which time those amounts assessed as service charges were carried forward in the records as funds of the bank.

The Commissioner’s claims to those funds assessed by the bank as service charges is based on the Alabama Uniform Disposition of Unclaimed Property Act (hereinafter referred to as “the Act”), the effective date of which is April 27, 1971. The Act provides in pertinent part:

§ 315. The following property held or owning by a banking or financial organization ... is presumed abandoned:
(a) Any demand, savings, or matured time deposit made in this state with a banking organization, together with any interest or dividend thereon, excluding any charges that may lawfully be withheld, unless the owner has, within seven years:
(1) Increased or decreased the amount of the deposit ... or
(2) Corresponded in writing with the banking organization concerning the deposit; or
(3) Otherwise indicated an interest in the deposit .
§ 324. (a) Every person holding funds or other property, tangible or intangible, presumed abandoned under this chapter shall report to the commissioner of revenue with respect to the property as hereinafter provided.
(d) The initial report required under this chapter shall be filed on or before August 1, 1971, as of May 1, 1971. [Emphasis supplied.]

The Commissioner argues on appeal that the trial count erred in holding that the bank was lawfully entitled to assess the service charges against the dormant accounts because the funds therein had already become reportable and deliverable to the State prior to the assessment by virtue of the Alabama Uniform Disposition of Unclaimed Property Act. The Commissioner further argues that the bank had waived, and should be equitably estopped from asserting, its right to impose such charges because the charges were not made until after the dormant accounts had been presumed abandoned under the Act.

The bank, as appellee, contends that the trial court’s holding was correct and that several other grounds raised below but not specifically ruled on by the trial court would also support the conclusion reached below. Therefore the bank, without having perfected an appeal as provided for in Rule 4(a)(2) ARAP, argues the following “as in the nature of a cross-appeal”: one, that the Commissioner’s waiver and estoppel arguments are without merit; two, that the Commissioner’s claims to the funds are barred by the six year statute of limitations governing actions for recovery of personal property, Code of Alabama 1975, § 6-2-34, because all of the dormant accounts were in existence and the funds therein demandable more than six years prior to the Commissioner’s claims, citing inter alia Boswell v. South Central Bell Telephone Co., 293 Ala. 189, 301 So.2d 65 (1974); and three, that as applied to this case the Alabama Uniform Disposition of Unclaimed Property Act violates both the State and Federal Constitutions, because the Act causes confiscation of property without just compensation or due process and impairs the obligation of contract.

The Alabama Supreme Court said in Boswell v. South Central Bell Telephone Co. that in determining the meaning of an act, the paramount purpose is to ascertain the legislative intent; and if the language of a statute is unambiguous, that clearly expressed intent must be given effect, and there is no room for construction.

We think the Alabama Uniform Disposition of Unclaimed Property Act clearly requires the holder of property which has been presumed abandoned under the terms of that Act — in this case the bank — to include in its initial report all such property held by it as of May 1,1971. It is equally clear that as of May 1, 1971 those dormant accounts involved in this case were held by the bank, were presumed aban-donee! under the terms of the Act; and should have been reported as such to the Commissioner.

The fact that the Act provides a three month period during which the holder of abandoned property may assemble and deliver its report to the Commissioner does not alter the bank’s duty to report its holdings of abandoned property as of May 1, 1971.

The above-quoted section 315 of the Act (currently Code of Alabama 1975, § 35-12-22) excludes from its definition of presumed abandoned bank deposits “any charges that may lawfully be withheld.” The issue, then, is whether the charges imposed by the bank in July 1971 were “lawful.” We agree with the Commissioner that the bank was not “lawfully” entitled to deduct such charges from the dormant accounts after May 1, 1971.

Section 326 of the Act (currently Code of Alabama 1975, § 35-12-33) provides in pertinent part;

Every person who has filed a report under section 324 . . . shall pay or deliver to the commissioner of revenue all abandoned property specified in the report . . . . [Emphasis supplied.]

We think this section means that all property specified in the report and all property that should have been specified in the report is to be paid or delivered to the Commissioner. The Act requires the May 1, 1971 balances in the dormant accounts to be reported and thereafter delivered to the Commissioner.

We express no opinion as to the question of whether the bank was legally entitled to deduct service charges on these accounts prior to May 1, 1971. Assuming arguendo that the bank had such a right, the bank after May 1, 1971 was no longer entitled to impose such charges because the funds in those accounts had become reportable and deliverable to the Commissioner, notwithstanding the later resolution by the bank’s board of directors. It follows that the trial court erred to reversal in holding that the bank was lawfully entitled to deduct the service charges in July 1971.

Our holding obviates the need to consider ■ the waiver and estoppel arguments raised. A determination of these issues favorable to the bank would not alter the fact that under the circumstances of this case the Act requires the May 1, 1971 balances in the dormant accounts to be reported and delivered to the Commissioner.

We do not think that the issues raised by the bank concerning the statute of limitations and the constitutionality of the Act are properly before us. The bank argues these issues “as in the nature of a cross-appeal,” without having filed a notice of appeal as provided for in ARAP 4(a)(2).

The trial court held that the bank was entitled to deduct the service charges from the funds in the dormant accounts, and that any funds remaining after these deductions which were not returned to the depositor were deliverable to the Commissioner. Implicit in this holding are findings that the Commissioner’s claims are not barred by any applicable statute of limitations, and that the Act is constitutional. In the absence of either of these implicit findings the Commissioner would not have been entitled to custody of any of the disputed funds.

The United States Supreme Court said in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, reh. den. 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970), that a prevailing party may assert in a reviewing court any ground in support of his judgment whether that ground was relied upon or even considered by the trial court. However, the bank’s arguments do not merely support the trial court’s holdings, but rather attack that portion of the judgment which allowed the Commissioner such custody as was granted therein.

Our case law says that an appellee may not cross assign error without taking an appeal. Mutual Savings Life Insurance Co. v. Montgomery, Ala., 347 So.2d 1327 (1977); Headley v. Housing Authority of Prattville, Ala.Civ.App., 347 So.2d 532 (1977), and authorities cited therein. Therefore, in the absence of a cross appeal by the bank, these assignments of error present nothing for review.

Because the trial court erred in holding that the bank was lawfully entitled to deduct the service charges, its judgment is reversed and the cause remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


text:
    Ex parte the SAMSON BANKING COMPANY, a Banking Corporation.
    78-270.
    Supreme Court of Alabama.
    March 23, 1979.
   Certiorari to the Court of Civil Appeals, 368 S0.2d 547.

TORBERT, Chief Justice.

WRIT DENIED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Carlos Lloyd ADAMS v. Georgia Rea Strain ADAMS.
    Civ. 1609.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.
    Rehearing Denied March 14, 1979.

      John C. Schmarkey, Birmingham, for appellant.
    James M. Fullan, Jr., Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The husband appeals from the trial court’s denial of his petition to modify a prior divorce decree. We affirm.

The parties were divorced November 20, 1975. The husband filed his petition to modify on January 4,1978. He alleged that he had been fired from his former job at U. S. Steel and had insufficient income to meet the obligations of the prior judgment. The judgment of divorce required of the husband monthly alimony payments of $600 and the making of the wife beneficiary of $20,000 of life insurance.

The wife filed a petition for Rule Nisi on January 10,1978, alleging that the husband had failed to comply with the court’s previous decree; that he was $3,400 in arrears in alimony payments and had not complied with the insurance provisions of said decree.

The husband’s petition to modify and the wife’s petition for Rule Nisi were heard by the court on March 1, 1978. After hearing, the court found the husband was in arrears in payment of alimony in the amount of $4,000; his failure to comply with the judgment was due to his willful contumacy; and he was in contempt of court. The court continued the hearing on the petition to modify until April 27,1978 in order to allow the husband to purge himself of contempt.

On April 27 the husband tendered $4,000 to the wife’s lawyer in open court, but had not complied with the order requiring him to provide $20,000 of life insurance with the wife as beneficiary. He was committed to jail for contempt.

On June 22, 1978 hearing was had to decide the husband’s petition to modify. It was shown that four additional months’ alimony had become due as of June 20 since the husband’s payment of $4,000 on April 27, and that the insurance to which the wife had been recently made beneficiary was so encumbered by loans to the husband that its pay-off value was less than $20,000. Upon showing of the continuing deficiency and the defalcation of the husband, the court stated in open court and by subsequent order that the husband’s hands were unclean for failure to comply with the previous orders of the court. For that reason the petition to modify was denied and a judgment for $600 for attorney fees was given the wife.

The husband primarily contends the unreasonableness and unfairness of the trial court in failing to grant his request for modification. He insists that the evidence of his financial inability to pay the award of alimony is preponderant and to refuse him relief is an abuse of discretion. He does not confront the stated reason for the denial of his requested relief. We have shown that reason was stated by the court to be his violation of the equitable principle of “clean hands”. We find the denial of the petition for modification to be without error whether considered in light of the evidence as to the petitioner’s financial condition or whether considered in light of the principle of “clean hands.”

The equitable principle of “clean hands” or that of “he who seeks equity must do equity” is still appropriately viable even though the forms of common law equity actions have been deleted from practice. Cone v. Cone, 331 So.2d 656 (Ala.1976). It has been said that'the application of the “clean hands” doctrine is a matter peculiarly within the sound discretion of the trial court. Carter v. Carter, 282 Ala. 239, 210 So.2d 800 (1968). It may be applied by the court in cases seeking reduction of alimony. Bergwardt v. Bergwardt, 257 Ala. 288, 59 So.2d 81 (1952). The court in this case applied the doctrine only after having found the husband in contempt for failure to comply with its order, permitted him opportunity to purge himself and then subsequently found him again four months in arrears in payment of alimony. We iterate that we find no error in the dismissal or denial of the petition for modification filed by the husband under the “clean hands” principle.

We also have considered the evidence brought out at the hearing on the petition and would affirm the judgment of denial of relief had it been entered upon the evidence.

We award the wife $500 for services of her attorney on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BOWEN, Judge.

text:
    Grady SPRINKLE v. STATE.
    1 Div. 879.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    Rehearing Denied April 18, 1978.

      T. M. Brantley and Robert F. Vargo of Brantley & Vargo, Bay Minette, for appellant.
    William J. Baxley, Atty. Gen. and Enge-nia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

On the night of December 3, 1976, Billy White, an eighteen year old Baldwin County High School student, and Cheri Prine, a fifteen year old student, were killed in an automobile collision in Baldwin County. The twenty year old appellant was indicted for their murders by perpetrating an act greatly dangerous to the lives of others and evidencing a depraved mind without regard for human life. A jury convicted him of murder in the second degree and fixed his punishment at twenty-one years’ imprisonment. The appellant’s request for Youthful Offender Treatment was denied because the appellant had “a running record of traffic violations” including reckless driving, driving while intoxicated and driving without a license. His motion that he be committed to a state mental institution for treatment and evaluation was granted. At trial the appellant was represented by retained counsel who was appointed on this appeal.

The sufficiency of the evidence to support the conviction has not been challenged. As there was no motion to exclude the state’s evidence, no request for the affirmative charge, no exceptions reserved to the oral charge of the trial court, and no motion for a new trial, the question of the sufficiency of the evidence to support the conviction is not presented on appeal. Robinson v. State, 44 Ala.App. 206, 205 So.2d 524 (1967); Alexander v. State, 281 Ala. 457, 204 So.2d 488 (1967); Anderson v. State, Ala.Cr.App., 339 So.2d 166 (1976). Yet, having reviewed the evidence we find that it was ample to support the verdict.

The evidence presented by the state, in its barest essentials, reveals that around 4:45 on the afternoon of December 3, 1976, the appellant began drinking beer and soon switched to whiskey. By 10:00 o’clock that night the appellant was intoxicated. A waitress at the Little Dutchman Lounge testified that the appellant was incapable of driving safely and refused to serve him any beer. The appellant left before she could call his parents to come take him home.

The collision occurred on Alabama Highway 112, the Old Pensacola Road, in Baldwin County. The point of impact was determined to be in the lane rightfully occupied by Billy White and Cheri Prine. The appellant was driving in the wrong lane at a speed of approximately one hundred miles an hour in an intoxicated condition when the collision occurred. The Chevrolet Vega driven by White was traveling approximately forty-five miles an hour and was repelled backwards a distance of ninety-three feet from the point of impact. The Ford driven by the appellant traveled in its original direction for a distance of one hundred seventy-six feet from the point of impact before finally stopping. No skid marks were found at the scene.

The defense called several witnesses including the appellant who testified that the appellant was not drunk on the night of the collision. Several other witnesses attested to the appellant’s good reputation in the community.

I

Initially the appellant argues that the trial court improperly denied his motion for a change of venue. In support of this argument the appellant argues that

“the defendant was from across the tracks; that the parties who were killed were a local football hero and a cheerleader. They were close enough to the Solicitor that he cried when trying to read the indictment and apparently close enough to the judge that he refused a bond without any logical reason except prejudice.”

Additionally it is argued that the motion for change of venue should have been granted because eleven of the thirty-nine veniremen were excused because “they expressed a fixed opinion or prejudice.” The record does not disclose the nature of this fixed opinion or bias.

The only evidence offered in support of the motion for a change of venue was an affidavit of defense counsel that he had made “limited inquiries of several people in Bay Minette and in this general area” and the “consensus of opinion was that it was very doubtful” that the appellant could receive a fair trial in Baldwin County.

The mere belief of the defendant or of the witnesses he is able to produce that he cannot receive an impartial trial is not enough to entitle him to a change of venue. Patton v. State, 246 Ala. 639, 21 So.2d 844 (1945); Campbell v. State, 257 Ala. 322, 58 So.2d 623 (1952); Mathis v. State, 280 Ala. 16, 189 So.2d 564, cert. denied, 386 U.S. 935, 87 S.Ct. 963, 17 L.Ed.2d 807 (1966).

A defendant has a right to a change of venue only if it is clearly shown that a fair and impartial trial may not be had in the county in which the indictment was found. In Jackson v. State, 104 Ala. 1, 4, 16 So. 523 (1894), the Supreme Court of this state noted:

“Facts and circumstances rendering such a trial improbable must appear. The mere belief of the party applying, or of the witnesses he is enabled to produce, that such trial can not be had, will not suffice. 1 Bish.Cr.Proc. § 71; Salm v. State, 89 Ala. 56, 8 South. 66. The affidavits consist largely in the mere expression of the opinion of the parties making them, and no distinct, tangible facts are stated, which, in our opinion, would have justified the circuit court in granting the application.”

An affidavit containing a mere expression of opinion, that one accused of crime can, or cannot, have a fair and impartial trial, is worthless as evidence, pro or con, unless it is supported by sufficient reasons, testified to as facts. Salm v. State, 89 Ala. 56, 59, 8 So. 66 (1889). In ruling on a motion for a change of venue the trial court must “be governed more by the facts of the case, as proved or admitted, and legitimate inferences from them, than by the mere opinions of witnesses, which are unsupported by facts”. Seams v. State, 84 Ala. 410, 413, 4 So. 521, 522 (1887).

When the defendant applies for a change of venue, it is his burden to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected in that county. Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973); Peoples v. State, Ala.Cr.App., 338 So.2d 515 (1976). In McLaren v. State, Ala.Cr.App., 353 So.2d 24, 32, cert. denied, Ala., 353 So.2d 35 (1977), this court held that an affidavit by defense counsel that he had talked to at least fifty or sixty people about the homicide and that . . all expressed the opinion that . . the defendant, . . was guilty” was insufficient to support a motion for a change of venue.

The record in this case fails to establish that the defendant could not receive a fair and impartial trial in Baldwin County. Denton v. State, 263 Ala. 311, 82 So.2d 406 (1955). Without indulging any presumption in favor of the ruling of the trial court on the motion. Malloy v. State, 209 Ala. 219, 96 So. 57 (1923); Maund v. State, 254 Ala. 452, 48 So.2d 553 (1950), we find that the evidence supporting the motion is simply insufficient to justify a change of venue or for this court to conclude that the trial judge abused his discretion in denying the motion. The jury’s verdict and punishment would justify this conclusion.

Though the District Attorney for Baldwin County apparently lost his composure while reading the indictment at the arraignment of the appellant, this occurred some ten days before the appellant was brought to trial. The trial was prosecuted by the Chief Assistant District Attorney for Mobile County and it does not appear that the Baldwin County District Attorney was even present.

The trial judge initially refused to fix bail following the arrest of the appellant because of the appellant’s past driving record. The trial judge also specifically found that releasing the appellant would not have been to the best interest of the general public and “feared” that “he might get out and cause great bodily harm as a result of drinking and driving a motor vehicle”. It appears and counsel alleges in brief that bond was set at some date before trial. Despite the reasoning behind the denial of bail by the trial judge, such denial was improper. In Alabama, an accused upon arrest and before conviction, is entitled to bail as an absolute right provided he has sufficient sureties. Bail may only be denied in capital offenses, when the proof is evident or the presumption great. Section 16, Constitution of Alabama 1901. Ex parte Bynum, 294 Ala. 78, 312 So.2d 52 (1975); Ex parte Carlisle, 57 Ala.App. 216, 326 So.2d 775, cert. denied, 295 Ala. 396, 326 So.2d 776 (1975). Here however, the trial judge set bail some time before trial at the request of defense counsel. No mandamus or habeas corpus proceedings were invoked. On appeal this is not asserted or argued as a cause for reversal. The appellant is not alleged to have been prejudiced by this delay in setting bail. Though the record does reveal that bail was requested on two occasions, no objection was taken when bail was not set. On appeal it is argued only that this served as an indication of the bias and prejudice of the trial judge. Though the appellant maintains that both the District Attorney and the trial judge were biased and prejudiced no motion to recuse was ever filed. In view of these circumstances we will not reverse the judgment of the trial court for denying the motion for a change of venue.

II

The second argument advanced by the appellant for reversing his conviction is that the conduct of the prosecuting attorney was improper and created an atmosphere in which the appellant could not receive a fair trial.

Specifically the appellant alleges as error the following actions or comments of the District Attorney: (1) Showing that the two victims were closely related to football in high school and arguing that “the whistle is going to blow in the Baldwin County High School stadium had it not been for this murderer”; (2) beginning his examination of the first witness with the phrase “tell the folks of Baldwin County”; (3) proving and arguing that the victims had only been drinking coca cola before their death while the appellant had been drinking or “belting down whiskey”; (4) asking a state toxicologist, “What you are saying is that from your .207 you are twice as drunk as the legal. . . . (5) repeating the answers of witnesses; (6) repeating testimony of other witnesses in questioning the witness before him; (7) asking a highway patrolman, “did a jolt that hard bring out the alcohol you smelled on the defendant that night”; (8) referring to the appellant’s “drinking buddies”; (9) referring to the appellant as “your good friend Buck” in cross examining a defense witness; (10) addressing the jury and not the witness during his examination at trial and making “jury speeches”; (11) questioning the appellant about the Vega he “creamed”; (12) attributing to the appellant statements that were not made or were incorrect; (13) shaking his finger in the appellant’s face in final summation before the jury; (14) arguing in final summation “and then for Mr. Brantley (defense counsel) to turn around and tell you ‘what if it had been the reverse’ you know what that is, that’s a low down trick”; and (15) repeatedly referring to the appellant as a murderer.

The appellant argues that the cumulative effect of the prosecutor’s trial tactics creates reversible error. We have reviewed each and every allegation of error, including others not listed above, and find that the cumulative effect of these alleged errors does not demand a reversal. Some of defense counsel’s objections were not well taken, other objections were not raised at trial or were not timely interposed. In some instances the trial judge sustained defense counsel’s objection or instructed the jury to disregard. In other instances a ruling was not secured to the objection or motion. In certain cases the prosecutor’s questions were entirely proper or at least within the discretion of the trial judge. In other cases the prosecutor’s conduct may have been improper yet not prejudicial to the appellant. Since no single instance of alleged improper conduct constituted reversible error, we do not consider their cumulative effect to be any greater.

The primary duties of the office of the District Attorney are to see that justice is done, Adams v. State, 280 Ala. 678, 198 So.2d 255 (1967), and to see that the state’s case if properly presented to the court and jury as made by the evidence. Wilbanks v. State, 28 Ala.App. 456, 458, 185 So. 770 (1939); Williams v. State, 34 Ala. App. 253, 39 So.2d 29 (1949).

“The office of solicitor is of the highest importance; he is the representative of the state, and as a result of the important functions devolving upon him as such officer necessarily holds and wields great power and influence, and as a consequence erroneous insistences and prejudicial conduct upon his part tend to unduly prejudice and bias the jury against the defendant; this, without reference to the instructions of the court. The test in matters of this kind is not necessarily that the conduct of the solicitor complained of did have such effect upon the jury, but might it have done so?”
Taylor v. State, 22 Ala.App. 428, 429, 116 So. 415, 416 (1928); Jones v. State, 23 Ala.App. 493, 495, 127 So. 681 (1930); Bynum v. State, 35 Ala.App. 297, 298, 47 So.2d 245, cert. denied, 254 Ala. 22, 47 So.2d 247 (1950).

In the performance of his duties the District Attorney should treat the defendant fairly and the witnesses courteously, both in examination and in argument. Campbell v. State, 19 Ala.App. 349, 352, 97 So. 783 (1923). The prosecuting attorney has a duty to be fair and impartial in presenting the evidence and in examining or cross examining witnesses. Melton v. State, 21 Ala. App. 419, 109 So. 114 (1926). While he may not take unfair advantage of a defendant, he is under a duty to prosecute with earnestness and vigor. Arant v. State, 232 Ala. 275, 167 So. 540 (1936).

“We are in full accord with the holding that a prosecuting officer should be fair and take no undue advantage of the accused. But the argument here advanced would require more, and would leave out of consideration the solicitor’s conviction that he was discharging a duty to society by his prosecution of the accused whom he honestly believed guilty, and it would leave out of consideration the human element that in the heat of debate some harsh expression, though justified by the proof, fell from his lips. The proprieties must not be overreached. But, after all, we must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair. The solicitor is yet under duty to prosecute with earnestness and vigor — to strike hard blows, but not foul ones. Berger v. U. S., supra. (295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314).” Arant, at 232 Ala. 280, 167 So. at 544.

The prosecuting attorney owes a duty to exercise his full powers in furtherance of society’s valid and strong interest in enforcement of criminal laws, not only in seeing that the guilty are punished but that criminal acts by others are discouraged by example of such punishment. Ash v. State, 33 Ala.App. 456, 460, 34 So.2d 700, cert. denied, 250 Ala. 417, 34 So.2d 704 (1948). Trials are adversary in nature and a vigorous prosecution and defense is to be expected. Neither side should be hampered too closely in making its particular presentation. Edwards v. State, 56 Ala.App. 405, 410, 321 So.2d 744 (1975); Bullard v. State, 40 Ala.App. 641, 645, 120 So.2d 580 (1960).

While the prosecuting attorney should not endeavor to introduce legally inadmissible evidence he should be allowed full range within the law to bring out all the material evidence he has good reason to believe will shed light on the commission of the alleged offense. 23A C.J.S. Criminal Law § 1087, p. 115.

Questions as to the prosecuting attorney’s conduct in examining or cross examining witnesses must ordinarily be left to the sound discretion of the trial court. Windom v. State, 18 Ala.App. 430, 93 So. 79, cert. denied, 208 Ala. 701, 93 So. 924 (1922); Whitfield v. State, 21 Ala.App. 490, 109 So. 524 (1926); Evans v. State, 42 Ala.App. 587, 172 So.2d 796 (1965). He should examine witnesses with dignity, decorum, and due consideration, Campbell, supra, and should not take advantage of his position to abuse, insult, or ridicule them. Brasher v. State, 22 Ala.App. 79, 112 So. 535 (1927).

“On the other hand, a prosecuting attorney may use every legal means within his power to test the credibility of witnesses, and the propounding of embarrassing or humiliating questions, where they are pertinent to the issues, does not constitute misconduct.” 23A C.J.S. Criminal Law § 1087, p. 117.

In view of these principles and the reasons set forth above we find that the prosecutor’s conduct was not prejudicial to the accused. Vigorous and aggressive prosecution should not be mistaken for improper and prejudicial misconduct.

Ill

The appellant also asserts that the conduct of the trial judge constitutes reversible error. It is argued that the trial judge (1) initially refused to grant bond and told defense counsel “I wish you would make one of your appeals to see if it is right”; (2) questioned a witness; (3) told defense counsel “I don’t need anymore comments from you on it” and later to “sit down”; (4) was “testy” to defense counsel; and (5) not purposefully but erroneously recalled a witness’s testimony stating, “Near as I recall he (defendant) said it wouldn’t go over 100 miles per hour”.

We have most carefully examined and particularly noted every utterance of the court complained of, and our conclusion is that there is no merit whatever in the position taken by appellant’s counsel. Nothing transpired during the progress of the entire trial to militate against the constitutional right of defendant to have a fair and impartial trial by jury.

The issue of the initial failure to grant bond has already been discussed in this opinion. The fact that the trial judge was able to reverse his initial ruling and grant bond indicates to this court that he was maintaining an impartial and unbiased opinion toward the defendant.

The trial judge was within his discretion in questioning witnesses.

“The unquestioned province of the court — in fact, the solemn and sacred duty of a trial judge — is the development and establishment of the truth, and in this connection it is always permissible for the court, and if it appears necessary for him to do so it is his duty, to propound to witnesses such questions as it is deemed necessary to elicit any relevant and material evidence, without regard to its effect, whether beneficial to the one party or the other. Beal v. State, 138 Ala. 94, 35 So. 58. In fact, it is a sacred duty of a judge, both in civil and criminal cases, to give strict attention to the evidence, and to all facts and incidents attendant upon the trial, to propound questions to witnesses if in his judgment he deems it necessary, and to supervise and control the proceedings before him, with a view that justice may not miscarry.” Brandes v. State, 17 Ala.App. 390, 391, 85 So. 824 (1920).

The trial judge is more than a mere moderator and it is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of witnesses. Thus he may ask any question which would be proper for the prosecutor or defense counsel to ask so long as he does not depart from a standard of fairness and impartiality. Johnston v. City of Birmingham, Ala.Cr.App., 338 So.2d 7 (1976). Generally see Allen v. State, 290 Ala. 339, 342-343, 276 So.2d 583 (1973).

The trial court’s admonitions to defense counsel were not prejudicial under the circumstances and did not transcend in any particular the duty resting upon the court. Myers v. Town of Guntersville, 21 Ala.App. 559, 110 So. 52 (1926) (Court’s admonition to defense counsel that “You have asked that enough” not prejudicial); Vaughn v. State, 236 Ala. 442, 447, 183 So. 428 (1938) (Court justified in telling defense counsel not to go further in questioning a witness about a collateral matter); Lee v. State, 16 Ala. App. 548, 79 So. 805 (1918) (Court’s statement that further argument was unnecessary); Dennison v. State, 17 Ala.App. 674, 676, 88 So. 211 (1921) (Court directed defense counsel to quit talking so much, to resume his seat and proceed with the trial).

The remarks and admonitions of the trial judge in this case are clearly distinguishable from the errors committed in Holland v. State, 24 Ala.App. 199, 132 So. 601 (1931); Williams v. State, 34 Ala.App. 253, 39 So.2d 29 (1949); and Moulton v. State, 199 Ala. 411, 416, 74 So. 454 (1917).

We view the statement of the trial judge that “Near as I recall it wouldn’t go over 100 miles per hour” as merely an observation by the court that there was certain evidence in the case. The court does not invade the province of the jury by stating that there is or is not evidence of particular facts, when such is the case. Breedwell v. State, 38 Ala.App. 620, 624, 90 So.2d 845 (1956); Griffin v. State, 76 Ala. 29, 32 (1884).

Here, on direct examination, in response to defense counsel’s question, “Would your car go a hundred miles per hour?”, the appellant answered, “I wouldn’t know, sir. I’ve never tried it.” Therefore we do not deem the court’s statement to constitute improper and prejudicial comment. Additionally we note that defense counsel made no objection to the statement of the court at trial.

IV

The appellant testified that he never tried to go one hundred miles per hour in his automobile. In rebuttal, the state called Baldwin County Deputy Sheriff Lloyd Smith who testified that he had “clocked” and arrested the appellant for driving at approximately one hundred miles per hour on October 23, 1976. To allow this rebuttal was within the discretion of the trial court and proper. Logan v. State, 291 Ala. 497, 282 So.2d 898 (1973); Goldin v. State, 271 Ala. 678, 127 So.2d 375 (1961); Mauldin v. State, 57 Ala.App. 361, 328 So.2d 612, cert. denied, 295 Ala. 411, 328 So.2d 616 (1975); Emerson v. State, 281 Ala. 29, 198 So.2d 613 (1967). The state may, in the discretion of the trial judge, introduce in rebuttal any competent evidence which explains or is a direct reply to, or a contradiction of, material evidence introduced by the defendant. See 6A Alabama Digest, Criminal Law, <3=>623.

V

On direct examination of the registered nurse who drew some blood samples from the appellant following the collision, the state asked the following question:

“Q. Let me show you some records from the University of South Alabama Medical Center, and do they have a name at the top, Grady D. Spinkle. And look down the sheet and tell me if your signature or any of your markings are on the hospital report, and if they are tell the jury if your signature is on there or checkmark. How can you identify that piece of paper?”

Defense counsel’s objection on the leading nature of the question was overruled and exception was taken. The records themselves had previously been admitted into evidence.

A most comprehensive discussion of leading questions is found in Blunt v. Strong, 60 Ala. 572, 576 (1877).

“To determine when á question is leading, and, if leading, when it will be allowed in practice, is one of the most difficult questions the practitioner encounters. So much depends on the nature of the fact sought to be proved, and on the temper and bias of the witness, that no general rule can be laid down, which will suit the requirements of every case. All the authorities agree, that direct and leading questions may be propounded to any witness, to lead his mind and attention up to any subject, upon which he is called to testify; and there are many other questions, which are of such character, that the inquiry must be framed in leading form, else the counsel and witness can not be made to understand each other. Proof of hand-writing, of character, of personal identity, and of many other analogous subjects, are of this class. And when a witness is called to testify against what appears to be his interest or bias, or manifests reluctance, hesitation, evasion, or art, in giving his testimony, the court will permit leading questions to be propounded by the party calling him, so as to elicit the full truth, if possible. These rules, if they may be called rules, are so much dependent on the circumstances of the particular case, that they can rarely become the subject of judicial review.” (Emphasis added)

The matter of allowing a party to propound leading questions is largely within the discretion of the trial court. See cases cited under 19A Alabama Digest, Criminal Law, ^240(2). Even if the question be considered leading we fail to see how it injured the appellant and conclude that the trial court did not abuse its discretion in overruling defense counsel’s objection. Additionally we view this question as dealing with matters preliminary in nature and therefore proper, even if leading. Gamble, McElroy’s Alabama Evidence 3rd Ed., p. 252, § 121.-05(6).

VI

Though the appellant objects to the oral charge of the trial court on the degrees of murder, at trial he took no objection to the court’s instructions and announced “satisfied”. An instruction not objected to cannot be reviewed on appeal. Wilson v. State, 32 Ala.App. 591, 28 So.2d 646 (1947); Allison v. State, 281 Ala. 193, 200 So.2d 653 (1967); James v. State, 57 Ala.App. 140, 326 So.2d 669 (1976).

VII

The refusal of the defendant’s requested charge on murder in the first degree was not error because it was covered by instructions already given, see 6B Alabama Digest, Criminal Law, 829(1).

VIII

The final issue raised by the appellant is that the results of a chemical blood test conducted on the appellant after his admission to the hospital were inadmissible because (1) there was no statutory authority for taking the blood because the appellant was not under arrest and (2) the state failed to lay the statutory predicate showing that the test was performed according to approved methods by an approved individual.

After the collision, the appellant was taken to the emergency room of the University of South Alabama Medical Center. There a blood sample was taken by a registered nurse in accordance with the “hospital policy” of routinely performing a blood test to determine the alcohol content of the blood on patients with head injuries to determine if their symptoms are brought on by ingestion of alcohol or by the accident that occurred. Apparently at the time the blood was drawn the appellant was not under arrest and had not been charged with any criminal violation. The test was not given at the direction of any law enforcement officer but upon the request of a physician. While the nurse did not request the appellant’s verbal permission, a written permission was signed on the back of the chart.

At trial defense counsel objected to the introduction of the results of the test “without first showing they had permission for the test”. No objection because of improper predicate was made.

A general objection to the admission of the test results was insufficient and properly overruled because the evidence could have been made legally admissible by other testimony or evidence. Caldwell v. State, 282 Ala. 713, 213 So.2d 919 (1968); Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967).

Defense counsel’s specific objection that the test results were inadmissible because the consent of the appellant had not been obtained was also insufficient. There was evidence that the appellant had given permission. An accused who objects to evidence is bound by the ground asserted for such objection. Roynica v. State, 54 Ala.App. 436, 309 So.2d 475, cert. denied, 293 Ala. 772, 309 So.2d 485, cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 85 (1974); Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973).

If the objection assigned to evidence was not well taken, the trial court cannot be put in error for admitting the evidence though it was subject to another objection. Harwell v. State, 12 Ala.App. 265, 68 So. 500, cert. denied, 192 Ala. 689, 68 So. 1019 (1915). A general objection is not sufficient to raise the question of an expert’s qualification. Snoddy v. State, 20 Ala.App. 168, 101 So. 303 (1924). An objection to the admission in evidence of a municipal ordinance on the grounds that it is not properly certified and not shown to be an ordinance of the town waived the objection that it was not shown that the ordinance had been duly published as the law requires. Kennedy v. Town of Oxford, 22 Ala.App. 77, 112 So. 813, cert. denied, 216 Ala. 206, 112 So. 815 (1927). Objection to the admission of an express receipt for a package on the grounds that it was immaterial, incompetent, and irrelevant waived all other grounds and in effect admitted the genuineness of the receipt. Clark v. State, 22 Ala.App. 319, 115 So. 294, cert. denied, 217 Ala. 229, 115 So. 295 (1928).

Defense counsel’s objection to the admission of the results of the blood test to determine alcohol content on the ground that the appellant’s consent had not been obtained waived the objection that a proper predicate had not been shown. Thus the trial court did not commit error in admitting the test results.

On this appeal, the appellant has not only cited as error virtually every objection made in the trial court without regard to whether he received an adverse ruling but has also included matters to which objection was not taken. Regardless, we have reviewed every single assignment of error presented by the appellant and written to most. In our search of the record we have found no error prejudicial to the substantial rights of the accused. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: ALMON, Justice.

text:
    In re Grady SPRINKLE v. STATE of Alabama. Ex parte Grady Sprinkle.
    77-485.
    Supreme Court of Alabama.
    March 9, 1979.
    T. M. Brantley and R. F. Vargo, Bay Minette, for petitioner.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, respondent.
   ALMON, Justice.

The Writ of Certiorari to the Court of Criminal Appeals, 368 So.2d 554, is quashed as improvidently granted. In quashing this writ, we note that the Court of Criminal Appeals “reviewed each and every allegation of error” and found “that the cumulative effect of these alleged errors does not demand a reversal.” Thus the treatment by the Court of Criminal Appeals is consistent with the principle enunciated in Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944).

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur.


author: TYSON, Judge.

text:
    Wilbert Gray CASHER, Jr., alias v. STATE.
    1 Div. 978.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Rehearing Denied Feb. 20, 1979.

      W. Gregory Hughes, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Appellant was indicted for the offense of robbery. The jury found appellant guilty as charged in the indictment and fixed his punishment at 10 years imprisonment. Appellant’s subsequently filed motion for new trial was denied by the trial court following a hearing thereon.

Ms. Daisy Harris testified she was the station manager at the Kayo Service Station in Prichard, Alabama on February 6, 1977. Approximately 5:15 p. m. that day a lone black male came in and demanded money at gun point. Ms. Harris told the man that an attendant trainee, Ms. Duong Thi Chin, had the money. Ms. Duong, a Vietnamese, did not understand the man’s demands, thus causing Ms. Harris to take the money from Ms. Duong’s pocket. She placed the money, amounting to $47.09, in a Lance cookie box and the man took the box and fled the scene on foot.

Officer Robert Ray testified he was responding to another call in his patrol car when he received the call regarding the Kayo Service Station. When he arrived at the scene, Ms. Harris pointed in the direction the robber fled and Officer Ray gave chase. The robber was described over the police radio as a black male with a tooth missing from his lower mouth, wearing a blue jean jumpsuit.

While stopped at a stop sign, Officer Ray observed a man fitting the description in a passing vehicle. The man immediately dropped down out of sight at the time Ray saw him. Officer Ray turned on both his blue lights and siren and immediately gave chase. Appellant was the driver of the vehicle in which the robber was a passenger.

Appellant’s vehicle stopped once, then pulled off again, as Officer Ray gave chase. Ray testified he pursued appellant’s vehicle for a minute and one-half, and that he finally bumped appellant’s rear bumper with his patrol car to stop him.

After the chase ended, Ray approached appellant’s vehicle, shotgun in hand, and ordered the driver out of the vehicle. Appellant was then instructed to tell his passenger to get out, which he did. After both men were out, Ray retrieved a pistol and a Lance cookie box containing $47.09 from under the driver’s seat of the vehicle.

When questioned later at police headquarters, appellant gave his name as Isaac Cleveland. Attorney Greg Hughes, who was called to view the lineup as an attorney, recognized and identified appellant as Wilbert Casher, Jr., rather than as Isaac Cleveland as appellant had identified himself.

Willie Earl Williams, the man who robbed the station, testified that appellant had no part in the robbery. He stated he merely flagged down appellant after the robbery and asked him for a ride. He testified he hid the gun and money box under his coat when he stopped appellant. Williams was later identified in a police lineup as the man who robbed the station. Appellant testified in his own behalf, corroborating Williams’ testimony. He stated he was on an errand looking for auto parts when Williams, a slight acquaintance, stopped him and asked for a ride.

Appellant argues the trial court erred in denying his motion to exclude the state’s evidence based upon the state’s failure to prove conspiracy, prearrangement, or community of purpose existing between appellant and Willie Williams, at or prior to the time of the robbery. He asserts the state’s evidence, entirely circumstantial in nature, was insufficient to sustain the conviction.

I

Appellant concedes proof of conspiracy may be made circumstantially. James v. State, Ala.Cr.App., 351 So.2d 693 (1977). However, he argues the circumstantial evidence here failed to prove prearrangement or community of purpose beyond a reasonable doubt. We do not agree.

Mere knowledge of the commission of a felony, after its commission, when no aid was rendered to the felon in the actual commission of the crime, is insufficient to sustain conviction. Hence, it is necessary to show that either by prearrangement or on the spur of the moment, a common enterprise constituting a criminal offense was conceived and intended by the accused parties. James, supra. If the contemplated criminal purpose is carried out, each conspirator is guilty of the crime committed, whether or not he did any overt act in the active commission of the crime. Stokely v. State, 254 Ala. 534, 49 So.2d 284 (1950). Such community of purpose may properly be proven to the jury’s satisfaction from circumstantial evidence, the conduct of the parties and all the testimony in the case. James, supra. See cases cited therein.

In the instant case, there are numerous incriminating facts surrounding the conduct of appellant herein from which the jury could make a finding of complicity. First, appellant gave flight when Officer Ray attempted to stop his vehicle by use of his flashing light and siren. Flight has long been held by our courts to be admissible as tending to show an accused’s consciousness of guilt. See Gamble, McElroy’s Alabama Evidence, 3rd Ed. § 190.01, and cases cited therein. Second, the weapon and the Lance box containing the stolen money taken in the robbery were found under appellant’s automobile seat by Officer Ray when appellant was taken into custody. See McEl-roy’s, supra, § 50.01. And third, appellant gave a false name at police headquarters when questioned as to his identity. . . [T]he giving of a false name to the police at the time of arrest by the accused is a circumstance which may be properly weighed by the jury, along with other evidence at trial, as indicating a consciousness of guilt, Seals v. State, 271 Ala. 142, 122 So.2d 513 .. . .” Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973). When these facts are considered along with the community of time and place of the apprehension of appellant with Willie Williams, just a few blocks from the Kayo Station and within minutes of the robbery, we feel a strong case of circumstantial evidence has been established by the state. Also, appellant admitted four criminal convictions.

Although the guilt of appellant is not absolutely conclusive, a clear and proper jury question on this issue was presented. The reasonableness of his and Williams’ story that he was naively uninvolved in the robbery was for the jury to weigh in light of the conduct of the parties and other apparent facts at the time of appellant’s apprehension. We feel the reasonableness of his story was justifiably found untenable by the jury in light of the above enumerated circumstances. Though the question is close, there was substantial circumstantial evidence to sustain the jury’s verdict.

We have reviewed the grounds of error relied upon by appellant in light of the record and the briefs and find no • error injuriously affected the substantial rights of appellant.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Wilbert Gray CASHER, Jr.
    78-309.
    Supreme Court of Alabama.
    March 23, 1979.
   EMBRY, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Sherman Granville McBRYAR, alias v. STATE.
    7 Div. 614.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Rehearing Denied Feb. 20, 1979.

      Robert B. French, Jr., Fort Payne, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was charged by indictment with first degree murder. At arraignment, in the presence of his counsel, appellant entered a plea of not guilty. The jury returned a verdict of guilty as charged and fixed the punishment at imprisonment in the penitentiary for life. Appellant gave notice of appeal. A free transcript was ordered and trial counsel was appointed to represent him on this appeal.

This is certainly a bizarre case, but the confluence of events over a five or six year period formed the basis for the arrest and conviction of appellant of the crime of murder in the first degree and a sentence to life imprisonment in the penitentiary. The evidence presented by the State was extremely conflicting with that presented by the defense. The motive for the slaying was weak but not inconclusive. Only a jury could unravel the inconsistencies and arrive at a verdict. It is not within the province of this Court to pass on the truthfulness or falsity of the evidence presented in this case.

A motion for new trial was timely filed on grounds, among others, as follows: (1) the verdict was against the weight of the evidence; (2) the admission of the oral confession, reduced to writing by officers, was error in that it was unsigned by appellant and was not shown to have been voluntary; (3) newly discovered evidence, i. e. affidavits incriminating someone other than appellant in commission of the offense charged, warranted a new trial; (4) the trial court erred in allowing evidence of appellant’s prior criminal record and in denying appellant’s motion for mistrial based thereon; and (5) the trial court erred in allowing improper rebuttal testimony. Following an evidentiary hearing, the motion for new trial was denied.

The coroner of Etowah County testified that on June 7, 1971, he saw the body of Harvey Mack Elkins at the Boaz-Albertville Hospital between 5:00 and 5:30 a. m. The cause of death was determined to be a gunshot wound to the head. The gun had been fired at close range. He further testified that the incident occurred in Etowah County at a mobile home in the Mountain-boro Community. The approximate time of the shooting was 4:45 a. m. and Elkins was dead on arrival at the hospital at 5:30 a. m.

The key witness for the State was Linda Faye Nunley, appellant’s ex-wife. She testified that six months to a year prior to the shooting, she and appellant visited in the trailer home of Mack and Evelyn Elkins. Evelyn Elkins, the wife of the deceased, was also appellant’s sister. Ms. Nunley testified that Evelyn Elkins had been severely beaten by her husband and asked appellant on that occasion if he knew of anybody she could get to kill Mack Elkins. He replied that he would check around.

Ms. Nunley testified that on Sunday, June 6, 1971, the day before the shooting, Wendell and Jewel Tinker spent the afternoon at the McBryars’ trailer in Chattanooga. Appellant and Wendell drank beer all afternoon while Ms. Nunley made pies at her mother’s next door. The two couples left Chattanooga around 10:00 p. m. and drove to the Tinkers’ home in Higdon, Alabama, to spend the night. Ms. Nunley testified that, shortly after they arrived, appellant came and told her that he and Tinker were going to kill Mack Elkins and the two men left. About daylight, appellant came in, woke her up and told her that he and Wendell had “blowed Mack’s head off.” Appellant told her that he had waited in the car, heard the shot and that Tinker came back and said he had shot him.

Ms. Nunley further testified that at the funeral home she overheard appellant ask Tinker, “How can you stand to look at him after doing that?” Tinker reportedly replied, “The only thing that bothers me_ That really bothered me about it is when they came and told me he had been shot they didn’t say he was dead and I thought maybe I hadn’t killed him.”

On cross-examination, Ms. Nunley testified that about daylight or a little after on the morning of June 7, Gene Edgeworth came to the Tinkers’ trailer and said that someone had shot Mr. Elkins. She was unable to remember the exact time, but it was established that at the preliminary hearing she had testified it was between 5:00 and 6:00 a. m. EDT and that Edge-worth had arrived about twenty minutes after appellant had returned to the trailer.

The witness testified that after Mack El-kins was killed, she left her husband because she was afraid he was going to kill her. She subsequently reported the murder to several law enforcement agencies and, finally, to the Etowah County Sheriff’s Department. She also testified that she told Evelyn Elkins in appellant’s presence that appellant had killed her husband.

Ms. Nunley denied that she reported the murder to the Etowah County Sheriff’s Department a few days after having a fight with appellant’s present wife, Mary McBryar, or that she reported the incident because she was mad at the appellant. She stated that appellant was already in prison serving twenty years for kidnapping at the time.

At this point in the proceedings, testimony was heard outside the presence of the jury on the admissibility of appellant’s confession. Don Longshore, Etowah County investigator, testified that on September 11, 1977, he and Roy McDowell talked with appellant in the Jefferson County Jail. He testified that appropriate Miranda warnings were given, that appellant was not threatened or offered any hope of reward to make a statement, and that he then made an oral statement. He testified that Sheriff Felton Yates of Etowah County was then called in, appellant was again read his rights, and repeated the oral statement.

Officer Longshore testified that appellant stated he had no objection to Longshore writing the statement down but that he refused to sign the statement. The substance of appellant’s statement was that he and Wendell Tinker left Tinker’s home in the early morning hours of June 7, 1971, and drove to Mack Elkins’ trailer. Tinker had a shotgun. Appellant dropped him off, and three hours later drove back and picked him up near Elkins’ home. Tinker told him that he had killed Mack Elkins. After they returned to Tinker’s home, one of the neighbors came over and told them someone had killed Mack Elkins.

On cross-examination, Longshore denied that at the time of the statement appellant was offered immunity if he would testify against Tinker.

Roy McDowell, chief investigator for Eto-wah County, and Sheriff Felton Yates testified, both substantiating the testimony of Don Longshore.

Appellant, Sherman McBryar, testified that his rights were not read to him until Sheriff Yates entered the room and that Don Longshore offered him immunity if he would “tell on Wendell Tinker.” Appellant testified that Longshore already had a statement written out, that he did not read it, did not sign it, and he did not make any statement at that time.

On cross-examination, appellant testified that he was presently incarcerated in the Federal Penitentiary in Atlanta, serving twenty years for kidnapping.

Following this testimony, appellant’s counsel moved to suppress the confession, which motion was denied.

Don Longshore then repeated his testimony before the jury with the State again laying the Miranda and voluntariness predicates. The statement, written down by Longshore, along with the waiver of rights form, both unsigned but witnessed by all three officers, was admitted into evidence.

Roy McDowell and Sheriff Felton Yates repeated their testimony before the jury, again substantiating the testimony of Don Longshore.

Brenda Kaye Smith, Linda Nunley’s sister, testified that, at Christmas of 1974, she overheard appellant tell Linda Nunley that “if she didn’t act like a lady, she would get her head blowed off like we blowed Mack’s off.”

Mark Jones, Linda Nunley’s stepfather, testified that he was in appellant’s home on Monday, the day of the shooting and noticed one of appellant’s guns, a double-barreled shotgun, was missing. On cross-examination, Mr. Jones testified that he did not recall his wife and Linda Nunley baking pies on the Sunday before the shooting at his home and he did not remember Wendell Tinker being there on that day.

Lorene McBryar, mother of appellant and Evelyn Elkins, testifying for appellant, stated that she spent the night at the El-kins’ home on June 6, 1971. As Elkins was leaving for work about daylight on June 7, she heard a loud noise. She and Evelyn both ran to the door and Mack Elkins was lying on the ground outside. Evelyn went to her husband and sent the witness to a neighbor’s to call an ambulance. Ms. McBryar did not know of any trouble between Mack Elkins and appellant and stated that they were best friends.

Roy McDowell testified that the distance between the Tinkers’ home and the trailer of Mack and Evelyn Elkins was sixty-seven miles and that it took an hour and fifteen minutes at 60-70 miles per hour to drive that distance.

Evelyn Elkins, widow of Mack Elkins, testified that about a year before her husband was killed he hit her in the mouth, injuring her. She denied that she asked appellant to have him killed because he hit her or that she had ever asked anybody to kill him. She stated that they had had no serious marital difficulties. To this witness’s knowledge, Mack Elkins had never had any trouble with either appellant, Sherman McBryar, or Wendell Tinker.

Ms. Elkins testified that on the morning Mack Elkins was killed, she got up at 5:00 EDT, her husband left for work about daylight and after he went out the door, she heard two shots. She went to him, realized that he had been shot, and sent her mother for an ambulance.

On cross-examination she testified that she did not see anyone leaving after her husband was shot. She denied that Linda Nunley had ever told her that appellant had killed her husband and stated that she did not know appellant and Wendell Tinker were involved until Tinker was arrested.

The witness could not recall but did not deny having told police in an earlier statement that her husband was shot at 4:30 a. m. She stated that that would have been central time.

Jewel Tinker, wife of Wendell Tinker and the sister of appellant and Evelyn Elkins, testified that, on Sunday, June 6, 1971, she spent the day at home, not at the McBryars’ in Chattanooga. Appellant and Linda Nun-ley spent the night at her house. She testified that Wendell Tinker and appellant did not leave the trailer at any time that night and that she would have known if they had. She woke her husband to go to work at 5:45 a. m. EDT on Monday and got appellant and Linda up around 6:15. Gene Edge-worth came over to tell them Mack Elkins had been shot at 6:25.

Wendell Tinker testified, substantiating the testimony of his wife about the events of Sunday, June 6, 1971. He testified that he did not leave his home that night and that he did not kill Mack Elkins. A time card was introduced which showed that on Monday, June 7, Wendell Tinker punched in at work at 7:22 a. m. EDT, in Trenton, Georgia, at the Corley Manufacturing Company. Mr. Tinker testified that he arrived at work at 6:45 and unlocked the building before he punched in. He denied the alleged conversation with appellant at the funeral home. On cross-examination, Tinker was shown appellant’s statement and stated that it was not true.

Wesley Chaney testified that he was working with Wendell Tinker on June 7, 1971, and substantiated Tinker’s testimony about the time he arrived at work.

Patricia Ann Smith, daughter of Jewel and Wendell Tinker, testified that she spent the night in the Tinkers’ home on Sunday, June 6, 1971, and that she slept on the couch beside the front door that night and that no one left the trailer during the night.

Mary McBryar, appellant’s wife, testified that in late February or early March of 1977 she had a fight with Linda Nunley. Following the fight, Linda Nunley’s sister and brother-in-law, Brenda and George Smith, called the witness on the phone and threatened her. She testified that Brenda Smith told her in effect that they were going to blame Sherman McBryar with the murder of Mack Elkins.

Appellant, Sherman McBryar, testified in his own behalf. He testified that he was currently serving a sentence in the Federal Penitentiary in Atlanta on a charge of kidnapping. Appellant denied that he spent Sunday, June 6, 1971, at his house in Chattanooga and testified that he and his ex-wife, Linda Nunley, spent the day at Wendell and Jewel Tinkers’ house in Alabama. They spent the night at the Tinkers’ but appellant denied that he ever left the home that night.

Appellant further testified that he and Mack Elkins were very close friends, that Evelyn Elkins had never asked him to find someone to kill Mack Elkins, and that he and Wendell Tinker did not kill Mack El-kins. He testified that the statement in evidence allegedly made by him was already prepared when it was brought to him in the Jefferson County Jail by Don Long-shore. He did not make the statement and he refused to sign it. He further testified that he was told, “If I would tell on Wendell, they would cut me scot free.” Appellant denied the alleged conversation with Wendell Tinker at the funeral home.

Brenda Turner, Evelyn Elkins’ daughter, testified that she was at the Elkins’ home when Mack Elkins was killed, substantiating the testimony of Evelyn Elkins and Lorene McBryar as to the circumstances of the killing.

James Cecil McBryar, appellant’s brother, testified that he was at the funeral home with Wendell Tinker and appellant and that he did not hear any conversation take place about having killed Mack Elkins.

Wanda Joyce Bailey, appellant’s sister, testified that in October of 1977 Linda Nun-ley told her that the man who shot Mack Elkins was “from up north.”

Ralph Boutwell testified, over appellant’s objection, for the State on rebuttal that on the morning of June 7, 1971, he was at his mother’s house across the road from Mack Elkins’ trailer. At 4:00 a. m., he heard two shots which came from the direction of the Elkins trailer, that he looked out the window but it was dark and he couldn’t see anything.

Appellant first contends that the verdict of the jury was clearly contrary to the great preponderance of the evidence. Eight witnesses testified for the State and twelve for the defense. Many of these witnesses were related by blood or marriage to the appellant, the key prosecuting witness, the deceased, and to each other. The appellant himself was the brother-in-law of the murder victim, Mack Elkins. Family members were divided, some testifying for the State, some for the appellant.

Every material issue raised at the trial was placed in sharp conflict by the testimony of the witnesses. The State’s evidence, primarily appellant’s confession and the testimony of Linda Nunley, tended to show that appellant killed Mack Elkins because, he had beaten his wife, the appellant’s sister.

Appellant recanted the confession at trial. He also relied heavily on showing that it was physically impossible for him to have killed Mack Elkins and driven the 67 miles back to the Tinkers’ home by the time Linda Nunley testified that he arrived. The evidence regarding the times at which critical events occurred was hopelessly complicated by the fact that some of the testimony was based on Central Daylight Time and some based on Eastern Daylight Time. Appellant contends on appeal that the State’s evidence showed that appellant shot Mack Elkins at 4:30 a. m., Central Daylight Time, and arrived back at the Tinkers’ home 67 miles away at 4:40 a. m., CDT.

The testimony of the various witnesses as to the times involved was confusing and contradictory. Due to the complexity of this evidence, it is apparent that the witnesses merely got their times confused.

There is nothing in the record which would allow this Court to conclude that the jury did not carefully assess the testimony of each witness, or that it did not fairly decide the conflicts in time against appellant. Conflicting testimony is for the jury and a verdict rendered thereon will not be disturbed on appeal. Young v. State, Ala. Cr.App., 346 So.2d 509.

Appellant next contends that the admission into evidence of the confession was error and sets forth two grounds in support of this argument: (1) That the confession, allegedly orally made and reduced to writing by an officer, was inadmissible as it was not signed by appellant, and (2) that the State failed to prove that the confession was voluntarily made. This contention is without merit. The law does not require that a confessory statement be signed by the defendant.

The evidence of appellant’s confession consisted of the writing by Don Longshore of what appellant told the officers as well as the testimony of the officers who heard the statement. All three officers testified when and where the statement was made and who was present. There was testimony on voir dire and again in the presence of the jury that the appropriate Miranda warnings were given, that appellant said he understood his rights, and that no promises or threats or other inducements were made to appellant to induce the statement.

Both a written confession and the testimony of a witness who heard the statement are primary evidence. In Elkins v. State, 250 Ala. 672, 35 So.2d 693, our Supreme Court said:

“. . . All that the accused voluntarily wrote or said which is material to the charge, is competent against him because it is his own admission and against his own interest. The witness testifies not to what the writing contains, but as to what he heard the defendant say. . . . ”

Appellant’s contention that his statement was inadmissible because it was not signed is without merit. Regardless of the admissibility of the unsigned written statement made by appellant, the proper predicates were laid for the testimony of the officers as to what they heard and that testimony was competent evidence against him. El-kins, supra.

The evidence of voluntariness offered by the State was controverted by appellant’s recantation at trial. The jury heard both the State’s testimony that the statement was voluntary and appellant’s testimony that he did not make a statement, as well as the testimony of appellant and Wendell Tinker that the events described in the statement never occurred. Where the evidence on the circumstances surrounding a confession is conflicting on voir dire, the trial judge must decide on its admissibility. If the confession is admitted, controverted testimony for the accused goes to the jury on its credibility. Godfrey v. State, Ala.Cr.App., 333 So.2d 182.

Appellant contends the trial court erred in denying the motion for new trial based on newly discovered evidence. This evidence consisted of affidavits of two inmates in the Atlanta Federal Penitentiary which asserted that someone other than appellant killed Mack Elkins. These affidavits were received on the day after appellant was convicted and the trial court continued the hearing on the motion for new trial to allow appellant’s attorney to depose the affiants in Atlanta.

The depositions and the affidavits were considered on the motion, following which the trial court denied the motion for new trial. The evidence tending to incriminate a person other than appellant for the murder of Elkins was based solely on statements made to the two inmates by a fellow bank robber that he had killed Mack Elkins for withholding money from a bank robbery.

New evidence tending to prove another person committed the offense for which the accused was convicted may be grounds for a new trial. Such evidence must, however, be admissible on retrial of the cause. Houston v. State, 208 Ala. 660, 95 So. 145. Evidence of the guilt of another cannot be proven by a confession or statement by another that he committed the offense with which the accused was charged. Such evidence is mere hearsay. Goldsmith v. State, 232 Ala. 436, 168 So. 547; Prince v. State, Ala.Cr.App., 356 So.2d 750.

Appellant, relying on Houston, supra, attempts to circumvent the hearsay element of the statements by arguing that they contradict the appellant’s confession. There is no principle of law upon which this contention will stand. The affidavits in Houston were admitted, not to prove the guilt of the declarant, but to impeach his own testimony against the accused. That rule will not serve to allow the admission of hearsay evidence to contradict the confession of the accused by proving the guilt of another.

The appellate courts look with disfavor on motions for new trials based on newly discovered evidence and the decision of the trial court will not be disturbed absent abuse of discretion. Zuck v. State, 57 Ala.App. 15, 325 So.2d 531. The trial court in the case at bar ordered a continuance to provide appellant with the fullest opportunity to gather any new evidence available. He heard all of the evidence and arguments of counsel and weighed the credibility of that evidence. His ruling on the motion for new trial will not be disturbed on appeal.

At the trial, Officer Don Longshore was allowed to testify on redirect examination to the fact that appellant was currently serving time in the penitentiary. This testimony was elicited in response to questioning by defense counsel on cross-examination of this witness regarding an offer of immunity made to appellant by the District Attorney. Appellant moved for a mistrial and, in the alternative, for an instruction to the jury to disregard the testimony. The trial court allowed the evidence to stand.

The circumstances under which this testimony was given are shown by the record:

“CROSS-EXAMINATION BY MR. FRENCH:
“Q. Were you in there yesterday when they offered him a deal to let him go scot free if he’d testify against Tinker.
“A. Yes, sir, I was.
“Q. What did you hear him say?
“A. He would not.
“Q. I was in there too, wasn’t I?
“A. Yes, sir.
‡ * ‡ ‡ ‡ j}s
“REDIRECT EXAMINATION BY MR. RAYBURN:
“Q. Now, Mr. Longshore, Counsel for the Defense has gone into the question of what transpired into offering this accused—What to do for him in return for his testifying, turning State’s evidence, so to speak, against Mr. Tinker. Do you recall him asking you about that?
“A. Yes, sir.
“Q. I believe the words of the Counsel for the Defense is ‘Offered to let him go scot free’. Did you hear any kind of offer like that?
“A. No, sir, I did not.
“Q. Tell the jury what the offer was. “A. That you offered?
“Q. Yes.
“A. You offered to let his time run concurrent with what time he was serving in the penitentiary now.
“MR. FRENCH: Move for a mistrial. “THE COURT: Overruled.
“Q. What is that again, sir?
“A. You let him—Offered to run the time that he got if he would testify against Tinker to run concurrent with what time he was serving in the penitentiary now.
“MR. FRENCH: I renew my motion for a mistrial. In the alternative, I move that the Court strike it and instruct the jury to disregard it.
“THE COURT: Overruled. You went into it, opened it up.”

On redirect examination, the State may examine a witness as to any matter injected into a case on cross-examination by defense counsel. Defense counsel opened the subject of the nature of the “deal” offered appellant. The District Attorney was then entitled, in the discretion of the trial court, to examine the witness as to the actual terms of the offer. Jones v. State, 22 Ala.App. 141, 113 So. 478; Chatom v. State, Ala.Cr.App., 360 So.2d 1068.

Further, Linda Nunley had previously stated twice on cross-examination by defense counsel that appellant was serving twenty years. Appellant did not object to this testimony, nor move the Court to instruct the jury to disregard this statement. Appellant also admitted, on cross-examination, that he was serving twenty years in the Federal Penitentiary on a kidnapping charge. An accused cannot complain of the admission of improper evidence when he himself testifies to the same facts. Yelton v. State, 294 Ala. 340, 317 So.2d 331.

Appellant’s final contention is that the trial court erred in permitting a witness for the State to testify that he heard the shots at the Elkins trailer at 4:00 a. m. CDT. At trial, appellant objected to this testimony on the grounds that it was improper impeachment of the State’s own witnesses and that the time of the shooting had not been raised by defense counsel. The trial court ruled that, since no State witness had testified to the time of the shooting, it was not impeachment; and further, since numerous defense witnesses had testified on this matter, rebuttal testimony was proper.

The order of proof and rebuttal testimony rest largely in the sound discretion of the trial court, and this rule applies to testimony which more properly should have been offered as part of the case in chief. Snow v. State, 50 Ala.App. 381, 279 So.2d 552, cert. denied, 291 Ala. 798, 279 So.2d 558.

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

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Sherman Granville McBRYAR.
    78-306.
    Supreme Court of Alabama.
    March 23, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.