This rule, to which there is uniform adherence by the appellate courts of Alabama, is not inconsistent with the principle that a party, who has been surprised by a witness, may interrogate him, lead him, in effect cross-examine him, in order (1) to refresh the recollection of the witness or (2) to show the surprise of the party who called the witness. Strickland v. State, 269 Ala. 573, 114 So.2d 407; McMillian v. State, 268 Ala. 63, 106 So.2d 244; Allen v. State, 51 Ala. App. 413, 286 So.2d 88; Hudson v. State, 48 Ala. App. 703, 267 So.2d 494; Patrick v. State, 43 Ala. App. 338, 190 So.2d 551, cert. denied 280 Ala. 717, 190 So.2d 555; Marcum v. State, 39 Ala. App. 616, 107 So.2d 899, cert. denied 268 Ala. 489, 107 So.2d 902. We are impressed by argument of appellant to the effect that, aside from evidence impeaching that of the witness Josephine Harrison, there is little evidence of defendant's guilt.
A conviction can be based on circumstantial as well as direct evidence. Hudson v. State, 48 Ala. App. 703, 267 So.2d 494. Objections to improper argument cannot be raised for the first time on appeal. If no objection is raised in the lower court, there is nothing for the appellate court to review. Nichols v. State, 267 Ala. 217, 100 So.2d 750. An in-court positive identification which is independent of the pretrial show-up is admissible. Rhodes v. State, 50 Ala. App. 661, 282 So.2d 100.
The scintilla rule does not apply in criminal prosecutions and there must be substantial evidence tending to prove each and every element of the charge in the indictment. Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1933); Lloyd v. State, 50 Ala. App. 646, 282 So.2d 85 (1973); Hudson v. State, 48 Ala. App. 703, 267 So.2d 494 (1972). It is reversible error to allow a clerk to assume a judicial role in a Court and for the judge to be absent during argument of counsel. 23 C.J.S. Criminal Law ยง 972 at 882; Parham v. State, 47 Ala. App. 76, 250 So.2d 613 (1971); Smith v. State, 230 Ala. 18, 158 So. 808 (1935); Waller v. State, 40 Ala. 325 (1867); Raab v. State, 62 Okl.Cr. 361, 71 P.2d 773 (1937).
In order to authorize the submission of a criminal case to a jury there must be substantial evidence tending to show all elements of the nature of the crime and, there is a fundamental principle that a defendant's guilt in a criminal case may be established by circumstances as well as by direct evidence. Hudson v. State, 48 Ala. App. 703, 267 So.2d 494. In Washington v. State, 44 Ala. App. 516, 214 So.2d 867, it was held by this court that the crime of burglary may be proved by circumstantial evidence as well as by positive and direct evidence and need not be proved by positive testimony only; but all of the testimony tending to incriminate the appellant may be considered by the jury in determining this question.
The guilt of a defendant may be established by circumstantial evidence as well as by direct and positive proof. Hudson v. State, 48 Ala. App. 703, 267 So.2d 494. (See cases cited under 552(1) in Alabama Digest, Volume 6.) But to authorize the submission of a criminal case to the jury there must be substantial evidence tending to prove all elements of the charge.
In order to authorize the submission of a criminal case to a jury, there must be substantial evidence tending to show all elements of the nature of the crime, and it is a fundamental principle that a defendant's guilt in a criminal case may be established by circumstances as well as by direct evidence. Hudson v. State, 48 Ala. App. 703, 267 So.2d 494. Tested by the authorities above set out, we think the case was properly submitted by the court to the jury and the motion to exclude the evidence was properly overruled.