As to the alibi of appellant, a question for the jury was presented. Freeman v. State, Ala.Cr.App., 350 So.2d 768. Appellant requested the following written charge:
The evidence in this case was in marked conflict but it is not within the province of this court to pass judgment on the truthfulness or falsity of conflicting evidence. Freeman v. State, Ala.Cr.App., 350 So.2d 768. Appellant set up the defense of alibi.
May v. State, Ala. Cr. App., 335 So.2d 242; Snipes v. State, 50 Ala. App. 139, 277 So.2d 413." Freeman v. State, Ala. Cr. App., 350 So.2d 768 (1977). Appellant contends that there was a fatal material variance between the facts alleged in the indictment and the facts adduced in trial.
A motion to exclude must state proper specific grounds or it may be properly overruled by the trial court. Ward v. State, Ala.Cr.App., 376 So.2d 1112, cert. denied, Ala., 376 So.2d 1117; Skelton v. City of Birmingham, Ala.Cr.App., 368 So.2d 877, cert. denied, Ala., 368 So.2d 880, cert. denied, 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17; Freeman v. State, Ala.Cr.App., 350 So.2d 768; 6A Alabama Digest Criminal Law 752. A ruling on the motion for a new trial is a matter resting largely in the sound discretion of the trial court, and this court will indulge in every presumption in favor of the correctness of the trial court's ruling.
It is settled that a motion to exclude without stating any grounds therefor is properly overruled. Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); Freeman v. State, 350 So.2d 768 (Ala.Cr.App. 1977); Gross v. State, 56 Ala. App. 387, 321 So.2d 727, cert. denied, 295 Ala. 403, 321 So.2d 729 (1975). Nevertheless, in the exercise of an abundance of caution, we have carefully examined the evidence and found that the testimony of the accomplice was corroborated.
This Court has held on numerous occasions that the number of witnesses is not the basis for determining the issue as to guilt because a fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Smith v. State, Ala.Cr.App., 338 So.2d 1030; Freeman v. State, Ala.Cr.App., 350 So.2d 768. The evidence presented by the State and appellant was in sharp conflict. It is not within the province of this Court to pass judgment on the truthfulness or falsity of conflicting evidence.
We have held many times that alibi evidence is always a jury question. Harris v. State, Ala.Cr.App., 343 So.2d 567; Mullins v. State, Ala.Cr.App., 344 So.2d 539; Smith v. State, Ala.Cr.App., 346 So.2d 500; Freeman v. State, Ala.Cr.App., 350 So.2d 768. When, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. Such conspiracy need not be proved by positive testimony, and the jury is to determine whether it exists and the extent of it, from the conduct of the parties and all the testimony.
Alibi evidence is always a jury question. Mullins v. State, Ala.Cr.App., 344 So.2d 539; Smith v. State, Ala.Cr.App., 346 So.2d 500; Freeman v. State, Ala.Cr.App., 350 So.2d 768. A much more serious question is presented by this entire record on the matter of whether appellant received a fair and impartial trial due to the conduct of the prosecuting attorney.
It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness or falsity of conflicting evidence. Williams v. State, Ala.Cr.App., 348 So.2d 1142; Freeman v. State, Ala.Cr.App., 350 So.2d 768. Alibi evidence is always a jury question.
Lee v. State, Ala.Cr.App., 346 So.2d 31. A verdict rendered on such evidence is conclusive on appeal. Young v. State, Ala.Cr.App., 346 So.2d 509. Nor does alibi evidence present an exception to this general rule. Smith v. State, Ala.Cr.App., 346 So.2d 500; Freeman v. State, Ala.Cr.App., 350 So.2d 768. Where there is legal evidence from which the jury can by fair inference find the defendant guilty, the Court of Criminal Appeals has no right to disturb the verdict.