CATES, Judge.
Womble was convicted of stealing $69.00 from Carl Utley who owned and operated a gasoline filling station. His sentence was for five years. He appeals from the judgment of conviction.
The tendencies of the State’s evidence were that early one morning Womble was in the building near the cash till. A customer saw him standing “behind the desk over next to the window.”
The desk drawer was open. The customer told the station attendant that he saw Womble with “some money in his hand.” The attendant “broke and ran in there.”
The attendant stated that he had counted the money in the station. There was $70.00 in paper money on the right side of the drawer. The drawer had been locked.
The attendant saw Womble with his left hand on the desk drawer. Only a single dollar bill was in the place where the $70.00 had recently been.' ’
' The attendant testified as to this episode in part as follows:
“A. I said Tut the money back in the drawer.’ He said ‘I haven’t got it.’ I said T said put the money back in the drawer.’ He said T haven’t got it. That fellow going around the restaurant got your money.’
“MR. SMITH CONTINUES: All right, now, this square that I have drawn here, does it reasonably and accurately represent the location of Carl’s Restaurant?
“A. Yes, sir.
Q. And, at that time, he said ‘That man going around the restaurant has got your money ?’
“A. Yes, sir.
“Q. All right, now, I will ask you this. After you had that conversation, did he do anything or say anything else to you?
“A. No, sir.
“Q. All right, after you had the conversation, tell us what happened then.
“A. I went out of the station and Peté Bowling was standing between the drink boxes. I said ‘Pete, don’t let him out of the station. I am going down here to tell Mr. Utley and see what he wants to do about it.’
“Q. All right, what did you do then?
“A. I went on down to the restaurant and told Mr. Utley what happened and then we started out of the restaurant and Mr. Womble was running around the station.
“Q. Tell us what happened then.
“A. He started up toward the restaurant and Mr. Utley stopped him out there and asked him about the money and he denied having it. Mr. Utley told him to just stay right there and that he would call the law and see who got the money. Mr. Utley went in the restaurant to call the law, and when he did, Mr. Womble jumped in his car and took off.
[419]*419******
“A. When I ran in the station and told him the first time to put the money back in the drawer and he denied having it. The second time I told him, he turned loose of the drawer and when he come up, he had the tire tool in his hand.
“Q. Was it in his left hand or his right hand?
“A. It was in his left hand.
“Q. All right, sir, now during this time, did he ever take his right hand out of his coat pocket?
“A. No, sir.
“Q. All right, what did you do, Mr. Smith, when he picked up the tire tool?
“A. I made my way to the door to get out.”
Utley got in his car and found Womble. He testified in part:
“Q. All right, sir, and after you left the restaurant, pursuing Mr. Womble, when was the next time — when and where were the next time you saw him ?
“A. At the intersection of highways 20, 72 and 157. I guess it is the old Tus•cumbia Highway. It is a gravel road that comes around behind Arnold’s Truck Stop, and he was just before coming back out on the highway and he was stopped and he was out of his car and there was a patch of sage grass there. He was out of his car a few steps and he was kind of squatted down in the sage grass. I turned in toward him and he got back up and got in his car and come out by me and went up highway 57.
“BY THE COURT: 157?
“A. 157.
“BY THE COURT: Now this gravel road you are talking about, is that south of Arnold’s Truck Stop?
“A. Yes, sir.
“BY THE COURT: The old Leighton Pike Highway?
“A. Yes, sir.
'“MR. SMITH CONTINUES: This would be in which direction from your restaurant?
“A. It would be east.
“Q. And approximately how far?
“A. I would say a couple of miles.
“Q. You lost sight of his car from the time you left your restaurant? Is that . correct ?
“A. Yes, sir.
“Q. And when you again saw him, you say he was outside of his car, kneeling down in some sage grass ?
“A. Yes, sir.”
******
“Q. Mr. Utley, tell us what he did and what you did after you pulled up there and, you say, he jumped in his car and took off.
“A. Well, I backed out on the highway and took out after him and he turned to the right on what they call Three Mile Lane, going into Spring Valley. I followed him on down to the end of that lane. It comes to a dead end. He turned left and got in the ditch. I pulled on in the driveway of Mr. Chaney’s and asked the lady if I could use the phone. I asked her to call the Highway Patrol and she showed me where the phone was and said ‘You call them.’ I called the Highway Patrol.
“Q. All right, now, when Mr. Womble ran his car over in the ditch, did he get out of the car ?
“A. The last time I seen him, he was still in it.”
A pursuing policeman described the capture thus:
“A. I told Mr. Womble, to stop. I hollered at him and told him to give up ■ — that he might as well come on in. He just kept running, so I ran on out to where I could see him and he went off into the edge of the creek. I ran out to where I could see him-and I got ap[420]*420proximately as close as from here to the wall back,there, and he got on a foot log and was attempting to walk the foot log. I hollered at him and told him that if he didn’t stop that I would shoot the log out from under him — shoot his feet out from under him or something to that effect. He said ‘Go ahead and shoot’, so I stood there and told him to come back. I kept talking to him to get him to take his eye off of the log— there was swift water under him — and when he did, he fell in, and then he came on back out.
“Q. All right, now when you were having this conversation, Mr. Cain, how far were you from him?
“A. Oh, almost as far as from here to the wall back there.
“Q. That back wall?
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CATES, Judge.
Womble was convicted of stealing $69.00 from Carl Utley who owned and operated a gasoline filling station. His sentence was for five years. He appeals from the judgment of conviction.
The tendencies of the State’s evidence were that early one morning Womble was in the building near the cash till. A customer saw him standing “behind the desk over next to the window.”
The desk drawer was open. The customer told the station attendant that he saw Womble with “some money in his hand.” The attendant “broke and ran in there.”
The attendant stated that he had counted the money in the station. There was $70.00 in paper money on the right side of the drawer. The drawer had been locked.
The attendant saw Womble with his left hand on the desk drawer. Only a single dollar bill was in the place where the $70.00 had recently been.' ’
' The attendant testified as to this episode in part as follows:
“A. I said Tut the money back in the drawer.’ He said ‘I haven’t got it.’ I said T said put the money back in the drawer.’ He said T haven’t got it. That fellow going around the restaurant got your money.’
“MR. SMITH CONTINUES: All right, now, this square that I have drawn here, does it reasonably and accurately represent the location of Carl’s Restaurant?
“A. Yes, sir.
Q. And, at that time, he said ‘That man going around the restaurant has got your money ?’
“A. Yes, sir.
“Q. All right, now, I will ask you this. After you had that conversation, did he do anything or say anything else to you?
“A. No, sir.
“Q. All right, after you had the conversation, tell us what happened then.
“A. I went out of the station and Peté Bowling was standing between the drink boxes. I said ‘Pete, don’t let him out of the station. I am going down here to tell Mr. Utley and see what he wants to do about it.’
“Q. All right, what did you do then?
“A. I went on down to the restaurant and told Mr. Utley what happened and then we started out of the restaurant and Mr. Womble was running around the station.
“Q. Tell us what happened then.
“A. He started up toward the restaurant and Mr. Utley stopped him out there and asked him about the money and he denied having it. Mr. Utley told him to just stay right there and that he would call the law and see who got the money. Mr. Utley went in the restaurant to call the law, and when he did, Mr. Womble jumped in his car and took off.
[419]*419******
“A. When I ran in the station and told him the first time to put the money back in the drawer and he denied having it. The second time I told him, he turned loose of the drawer and when he come up, he had the tire tool in his hand.
“Q. Was it in his left hand or his right hand?
“A. It was in his left hand.
“Q. All right, sir, now during this time, did he ever take his right hand out of his coat pocket?
“A. No, sir.
“Q. All right, what did you do, Mr. Smith, when he picked up the tire tool?
“A. I made my way to the door to get out.”
Utley got in his car and found Womble. He testified in part:
“Q. All right, sir, and after you left the restaurant, pursuing Mr. Womble, when was the next time — when and where were the next time you saw him ?
“A. At the intersection of highways 20, 72 and 157. I guess it is the old Tus•cumbia Highway. It is a gravel road that comes around behind Arnold’s Truck Stop, and he was just before coming back out on the highway and he was stopped and he was out of his car and there was a patch of sage grass there. He was out of his car a few steps and he was kind of squatted down in the sage grass. I turned in toward him and he got back up and got in his car and come out by me and went up highway 57.
“BY THE COURT: 157?
“A. 157.
“BY THE COURT: Now this gravel road you are talking about, is that south of Arnold’s Truck Stop?
“A. Yes, sir.
“BY THE COURT: The old Leighton Pike Highway?
“A. Yes, sir.
'“MR. SMITH CONTINUES: This would be in which direction from your restaurant?
“A. It would be east.
“Q. And approximately how far?
“A. I would say a couple of miles.
“Q. You lost sight of his car from the time you left your restaurant? Is that . correct ?
“A. Yes, sir.
“Q. And when you again saw him, you say he was outside of his car, kneeling down in some sage grass ?
“A. Yes, sir.”
******
“Q. Mr. Utley, tell us what he did and what you did after you pulled up there and, you say, he jumped in his car and took off.
“A. Well, I backed out on the highway and took out after him and he turned to the right on what they call Three Mile Lane, going into Spring Valley. I followed him on down to the end of that lane. It comes to a dead end. He turned left and got in the ditch. I pulled on in the driveway of Mr. Chaney’s and asked the lady if I could use the phone. I asked her to call the Highway Patrol and she showed me where the phone was and said ‘You call them.’ I called the Highway Patrol.
“Q. All right, now, when Mr. Womble ran his car over in the ditch, did he get out of the car ?
“A. The last time I seen him, he was still in it.”
A pursuing policeman described the capture thus:
“A. I told Mr. Womble, to stop. I hollered at him and told him to give up ■ — that he might as well come on in. He just kept running, so I ran on out to where I could see him and he went off into the edge of the creek. I ran out to where I could see him-and I got ap[420]*420proximately as close as from here to the wall back,there, and he got on a foot log and was attempting to walk the foot log. I hollered at him and told him that if he didn’t stop that I would shoot the log out from under him — shoot his feet out from under him or something to that effect. He said ‘Go ahead and shoot’, so I stood there and told him to come back. I kept talking to him to get him to take his eye off of the log— there was swift water under him — and when he did, he fell in, and then he came on back out.
“Q. All right, now when you were having this conversation, Mr. Cain, how far were you from him?
“A. Oh, almost as far as from here to the wall back there.
“Q. That back wall?
“A. Yes, sir.
“Q. Did you come closer to him as you were talking to him?
“A. Yes, sir, I walked on up. When he fell in, I ran on up there.
“Q. When he fell in the creek, how far were you from him?
“A. . Well, after he fell in and when he came back to the bank, I was only as far as from here to the blackboard from him, because I ran when he fell in.
“Q. Mr. Cain, were you armed on that occasion ?
“A. Yes, sir, I had a riot gun.
“Q. When Mr. Womble got out of the creek, did you point the gun at him, or what happened then?
“A. I held the gun like this and told him to start walking, and he said T am just as big as you are’, and you can’t take me in.
.“Q. Did he advance on you with his fists ?
“A. Yes, sir, and when he did, I stroked him with the butt of the gun, catching him right in the chest, and it knocked him down and I put the handcuffs on him.”
II.
Appellant’s first two argued points concern three rulings allowing the State, on direct examination, to ask leading questions.
The use of such questions on examination in chief is frowned on both at common law and by statute. Code 1940, T. 7, § 444. Two broad exceptions are recognized: (1) preliminary enquiries, e. g., witness’s name, address and occupation; and (2) enquiries as to matters not in dispute. Other exceptions are given in opinions (Blunt v. Strong, 60 Ala. 572), and in § 444, supra.
Also, a reviewing court under the harmless error rule (Supreme Court Rule 45) will look to the answer given, even though the question is flagrantly suggestive of the answer.
The first point is against the following question (R. 29):
“Q. * * * after he said something else to you, what did you do, if anything?” The witness, after objection was overruled, answered, “I ran into the station.”
Initially, we observe that the witness had just answered that the “he” referred to (a Mr. Pete Bowling) had said something else to the witness. Therefore, the question did not dredge up material not already in evidence.
Next, we do not think, “What did you do ?” discloses any predilection by the questioner as to what he may hope the witness will say. See Judge Harwood’s perceptive opinion in Williams v. State, 34 Ala.App. 603, 42 So.2d 500. We conclude the question did not lead.
The second complaint involved the question to Mr. Utley (R. 76), “* * * have you instructed your employees on the manner in which they are to account for the money that they take in * * * ?”
[421]*421The “yes” or “no” answer test is rejected by the Williams opinion as too rigid. This question is a good illustration of the fallacy of such a test.
Wigmore, Evidence (3d Ed.), § 769, points out that an offending question is invidiously leading when it suggests so as to allow the witness to be supplied with “a false memory.” The text continues;
“* * * Questions may legitimately suggest to the witness the topic of the answer; they may be necessary for this purpose where the witness is not aware of the next answering topic to be testified about, or where he is aware of it but its terms remain dormant in his memory until by the mention of some detail the associated details are revived and independently remembered. Questions, on the other hand, which so suggest the specific tenor of the reply as desired by counsel that such a reply is likely to be given irrespective of an actual memory, are illegitimate.”
In this context which we adopt as comporting with our cases, we find no fault with the question. The witness was directed to a topic and not to a tenor. See Donnell v. Jones, 13 Ala. 490, at 507.
Third, Mr. Utley’s being also asked what the procedure as to what the attendants were supposed to do in accounting for receipts from one shift to another was unobjectionable. No suggestion was used in the phrasing.
Moreover, the enquiry, though material, could not evoke an answer injurious to the defendant. It is well nigh axiomatic that people who handle money for another must account for it in some way. The topic verges on a matter not in dispute.
III.
Over objection (R. 52) the State was allowed to ask on redirect of the attendant, “ * * * what aroused your suspicions * * * about Mr. Womble * * * ?” The answer was; “Well, when I was counting the money, I noticed he kept looking at me and looking at the’ drawer all the time I was counting the money. I just had a funny feeling that he was up to something.” No request was made to exclude the last sentence of the answer.
The defense had beforehand cross examined the witness as to Womble’s seeing him opening the desk drawer and counting the money. Since the answer on redirect was recapitulation of what had been related on cross, even though the conclusory “funny feeling” was added, nevertheless Rule 45 would cover any error.
IV.
The last claim of error is alleged to have been occasioned by the failure of the trial judge to declare a mistrial. However, we find no motion made for mistrial.
All rulings of the court on the episode (R. 105-109) were against the State. Hence, there is no occasion for our review. Act No. 249, approved June 24, 1943, § 10, does not apply; rather Code 1940, T. 15, § 389, governs here.
Aside from review by writ of error and perhaps Act No. 249, supra, the requisites laid down by Brickell, C. J., in Ex parte Knight, 61 Ala. 482, at 486, are still valid;
“ * * * The question must however be reserved — it must be presented for the consideration and decision of the primary court, and the fact of its presentation, and its reservation for the consideration of this court, must plainly appear on the record, * * * ”
The judgment below is due to be
Affirmed.