89 F.3d 542
Larry E. YOWELL, Appellant,v.Jerry P. COMBS;  Andy Dalton; Jay Henges;  John Powell;Jerry J. Presley;  David Hurlbut, Appellees.
No. 95-3414.
United States Court of Appeals,Eighth Circuit.
Submitted March 15, 1996.Decided July 17, 1996.Rehearing and Suggestion for Rehearing En Banc Denied Aug. 14, 1996.

Ronald F. Bunn, Columbia, Missouri, for appellant.
Jane A. Smith, Jefferson City, Missouri, for appellees.
Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
BEAM, Circuit Judge.

1
Larry Yowell brought this 42 U.S.C. § 1983 action against Missouri Department of Conservation officials.   He alleged they violated his civil rights by demoting him and transferring him without a hearing.   The district court1 granted summary judgment to the officials based upon qualified immunity.   We affirm.

I. BACKGROUND

2
In 1972, Yowell began working for the Missouri Department of Conservation (the Department) as a county agent.   He held various positions within the Department over the next twenty-one years of employment.   In 1987, he was promoted to Regional Supervisor of the North Central Region.   By 1993, however, Yowell's superiors had become unhappy with his performance.   Consequently, they demoted him and transferred him to another position, in another county.   At the time, Yowell had no employment contract, written or oral, that specified other than an "at-will" arrangement.

3
To protest his demotion and transfer, Yowell appealed to the Missouri Conservation Commission.   The Commission unanimously approved the demotion decision.   Yowell then resigned his position with the Department.   He later tried to withdraw his resignation, but his attempt was denied by the director of the Department.   Yowell now characterizes his resignation as a termination.2

4
Yowell then filed this section 1983 action alleging the officials violated his civil rights in failing to give him a hearing before demoting and transferring him.   The district court granted summary judgment for the officials finding qualified immunity shielded them from suit.   On appeal, Yowell contends the officials are not entitled to qualified immunity because his right to continued employment with the Department was so clearly established at the time of his demotion that the officials must reasonably have known that their actions violated that right.

II. DISCUSSION

5
Summary judgment is proper only when no genuine issue of material fact is present and judgment should be awarded to the movant as a matter of law.  Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir.1992).   We review the entry of summary judgment de novo, giving the nonmoving party the benefit of every inference drawn from the evidence.  Reich v. ConAgra, Inc., 987 F.2d 1357, 1359 (8th Cir.1993).   The district court's decision to grant qualified immunity is an issue of law which we review de novo.  White v. Holmes, 21 F.3d 277, 279 (8th Cir.1994).   Applying these standards, we find no error in the district court's grant of summary judgment for the officials.

6
Qualified immunity shields government officials from suit unless their conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known.3  Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982);  Reece v. Groose, 60 F.3d 487, 491 (8th Cir.1995).   This court has established a three-pronged inquiry to be made when defendants allege they are protected by qualified immunity:  (1) whether the plaintiff has asserted a violation of a constitutional or statutory right;  (2) if so, whether that right was clearly established at the time of the violation;  and (3) whether, given the facts most favorable to the plaintiff, there are no genuine issues of material fact as to whether a reasonable official would have known that the alleged action indeed violated that right.  Foulks v. Cole County, Mo., 991 F.2d 454, 456 (8th Cir.1993).

7
We must first determine whether Yowell had a right to continued employment with the Department at the time of his demotion so as to require a hearing.   We hold that he did not.4  Under his employment contract, Yowell was an at-will employee.   As an at-will employee, he had no right to continued employment with the Department.   See Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 663 (Mo.1988) (absent valid employment contract to the contrary, at-will employee could be discharged for cause or without cause);  Cole v. Conservation Comm'n, 884 S.W.2d 18, 20-21 (Mo.Ct.App.1994) (despite claims that state constitution, statutes and employment manual created right to continued public employment, conservation agent remained at-will employee).   Indeed, as an at-will employee, Yowell could be terminated at any time, for any reason, with or without a hearing.  Cole, 884 S.W.2d at 20.

8
To avoid this result, Yowell must show that his at-will status was altered by contract, a state constitutional provision, statute, or regulation.  Johnson, 745 S.W.2d at 663.   Under Missouri law, an employer's offer to modify an employee's at-will status must be clear and definite.  Id. at 662.   Yowell has pointed to no such offer.   Furthermore, although Yowell cites numerous other sources in support of his claim that his at-will employment status was altered, we have reviewed these sources and find they do not support his claim.   For example, neither Missouri's Constitution nor its statutes restricted the Department's right to terminate Yowell.5  The intra-departmental policies on which Yowell relies, though they provide a five-step process for disciplinary actions, make it clear that "just cause" is not required for employment terminations and offer Yowell no increased protection.   Additionally, Yowell's twenty-one years of employment with the Department are not sufficient to alter his at-will employee status.   Yowell remained employed by the Department, at the Department's will.

9
What occurred here was simple.   Yowell was demoted and transferred because of his poor work performance.   The Department neither owed, nor gave Yowell a hearing prior to its action.   Yowell chose to resign instead of continuing to work in the new position.   He cannot now successfully argue that he was anything more than an at-will employee, simply because he is unhappy with his resignation decision.   Therefore, because Yowell failed to allege the violation of a constitutional or statutory right, the district court correctly found these officials were entitled to summary judgment.

10
Yowell further argues the district court erred in dismissing his section 1983 action prior to the completion of discovery.   This claim is meritless, however, as the above discussion illustrates.   Because Yowell failed to allege a violation of a constitutional or statutory right, the officials were entitled to summary judgment before discovery commenced.   See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985);  Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

III. CONCLUSION

11
Finding no error in the district court's grant of summary judgment in favor of the Department officials, we affirm the judgment of the district court.

1
 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri

2
 For purposes of our analysis, we will treat Yowell's resignation as a termination

3
 At all times relevant to this action, the defendants were acting in their official capacity, within the scope of their employment

4
 In so holding, we recognize that our analysis differs from that of the district court.   We may, however, affirm the district court on any grounds supported by the record.   See, e.g., Monterey Dev.  Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 608 (8th Cir.1993)

5
 Yowell claims, inter alia, that his certification as a peace officer altered his employment status from that of an at-will employee.   See, e.g., Mo.Rev.Stat. § 590.500.  We disagree.   Section 590.500 provides that, within 48 hours of termination, a peace officer may have a meeting with the employer regarding the termination, upon written request of the employee.   Yowell made no such request here.   Furthermore, the mere provision for a hearing does not create a right to continued employment.   See, e.g., Stow v. Cochran, 819 F.2d 864, 866-67 (8th Cir.1987) (grievance procedure which does not establish grounds upon which termination must be based does not create interest in employment)


746 F.2d 1472
Landrum (William W. Jr.)v.Seibert (Donald V.), Ricks (Robert R.), Hoyle (Garland E.),Lacy (Roger), Price (Hank), J.C. Penney Company, Inc.
NO. 84-1514
United States Court of Appeals,fourth Circuit.
OCT 02, 1984

1
Appeal From:  E.D.Va.

2
AFFIRMED.


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: A. H. ROBINS COMPANY,
INCORPORATED,
Debtor.

WILLIAM C. HOFSTETTER,                                              No. 96-2441
Appellant,

v.

DALKON SHIELD CLAIMANTS TRUST,
Trust-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-85-1307-R)

Submitted: December 30, 1997

Decided: January 27, 1998

Before RUSSELL, WIDENER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William C. Hofstetter, Appellant Pro Se. Orran Lee Brown, Sr.,
DALKON SHIELD CLAIMANTS TRUST, Richmond, Virginia, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Dalkon Shield Claimants who received compensatory damage
awards from the Dalkon Shield Claimants Trust (Trust) are to be paid,
in lieu of punitive damages, a pro rata share of funds remaining in the
Trust once all claims are paid in full. These pro rata payments will
be made without further effort by the claimant or the claimant's attor-
ney. See In re A.H. Robins Co. (Bergstrom v. Dalkon Shield Claim-
ants Trust), 86 F.3d 364, 370 (4th Cir. 1996), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3364 (U.S. Nov. 18, 1996) (No. 96-440).

We upheld the district court's March 1, 1995, order that counsel for
Dalkon Shield Claimants may not recover fees exceeding ten percent
of the pro rata distribution. See id. at 367. That order provided a
mechanism for seeking reinstatement of larger contingent fees and set
a hearing for April 27, 1995, on any motions for reinstatement of fees
in excess of ten percent. See id. at 371.

Appellant William Hofstetter filed a motion for reinstatement of
full contingent fees out of pro rata payments. Hofstetter advised the
district court that he would not appear at the April 27 hearing on the
motions for reinstatement and that he would not hire anyone to appear
on his behalf at the hearing. In its March 1 order, the district court had
directed attorneys who intended to file motions to advise the court
whether they would appear at the hearing or, if not, to identify the
person who would appear on behalf of the movant. The district court
also instructed that movants file exhibits to be offered in support of
their motions and to file a list of persons who might testify at the
hearing. Not only did Hofstetter or anyone acting on his behalf fail
to appear at the hearing, but he took no steps to have his pleadings
or two affidavits admitted, by deposition or otherwise, into evidence
at the hearing.

                     2
Following our decision in Bergstrom, the district court denied Hof-
stetter's motions for reinstatement as lacking evidentiary support. The
court observed that Hofstetter did not appear at the hearing and that
the documents offered in support of the motions constituted unauthen-
ticated hearsay. Hofstetter appeals.

His primary claim is that the documents were admissible under
Fed. R. Evid. 404(b). We note that Hofstetter did not raise this claim
before the district court and has waived its consideration on appeal.
Even if not waived, however, the claim lacks merit. The documents
supporting his motion were photocopies of: his fee agreements with
his clients; the complaints he filed in federal district court; and item-
ized statements of services rendered for his clients. Additionally, Hof-
stetter submitted an affidavit stating that the photocopies were true
and correct.

Under the residual hearsay exception, a statement is admissible if:
(1) it has "circumstantial guarantees of trustworthiness," (2) it is "of-
fered as evidence of a material fact," (3) it"is more probative on the
point for which it is offered than any other evidence which the propo-
nent can procure through reasonable efforts," (4) admitting the state-
ment will serve the purposes of the Rules of Evidence and the
interests of justice; and (5) the opposing party was given adequate
notice of the proponent's intention to invoke the exception. Fed. R.
Evid. 803(24). Because Hofstetter reasonably could have provided
evidence about the content of the documents--for example, through
deposition or live testimony--he cannot satisfy the third element. The
district court therefore did not abuse its discretion in determining that
the material was inadmissible hearsay and that Hofstetter had pre-
sented no evidence in support of his motion for reinstatement of fees.

Hofstetter's other arguments on appeal warrant little discussion. He
observes that over half of the attorneys who moved for reinstatement
of fees failed to appear at the hearing, apparently intending to stand
on their motions and supporting documentation alone. This, Hofstetter
argues, demonstrates that the court's March 1 order was misleading.
Their failure to appear does not necessarily establish that those attor-
neys who did not attend the hearing were misled. Even if they were
acting under the assumption that the Rules of Evidence would not
apply, they, as attorneys, should have known that the Rules would be

                     3
applied, as they typically are in court proceedings. The district court
was under no obligation to inform the attorneys that evidence would
be taken in accordance with the Rules.

Finally, Hofstetter argues that the district court's order limiting the
amount of fees he may recover from the pro rata distribution deprives
him of property (his contractual right with his clients to recover forty
percent of any damages awarded) without due process of law. Hof-
stetter had notice of the hearing and an opportunity to be heard on his
motion. This argument is plainly without merit.

The district court did not abuse its discretion in denying the motion
for reinstatement of fees. We accordingly affirm. We dispense with
oral argument because the facts and legal contentions are fully pre-
sented in the materials before us and argument would not aid the deci-
sional process.

AFFIRMED

                     4


350 So.2d 771 (1977)
John Roy PETERSON
v.
STATE.
6 Div. 403.
Court of Criminal Appeals of Alabama.
October 4, 1977.
*772 William M. Dawson, Jr., Birmingham, for appellant.
William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen. for the State.
BOWEN, Judge.
The appellant was indicted by a Grand Jury of Jefferson County for the first degree murder of James McBride. A jury found the appellant guilty of murder in the second degree and fixed his punishment at thirty years imprisonment. Retained trial counsel was appointed to represent the appellant on this appeal.
The facts of this case need not be set out in detail. The evidence produced by the state revealed that on the evening of March 15, 1976, the appellant and the deceased were drinking at Minniefield's shot house in Birmingham, Alabama. An argument developed between the two men when the deceased would not loan or give the appellant two dollars. Angered, the appellant left the drinking establishment only to return within a short time with three other men and again asked the deceased for the two dollars. When the deceased refused, the appellant shot him as the deceased was rising from his seat.
The appellant claimed that he shot the deceased in self-defense when the deceased advanced toward him with a knife. Although the appellant admitted that he and the deceased had been arguing, he denied asking the deceased for any money.

I
Initially the appellant argues that his motion for a new trial was due to be granted because the evidence did not justify a conviction of second degree murder. The argument presented by counsel is more properly reserved for presentation to a jury. It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness of conflicting evidence, May v. State, Ala.Cr.App., 335 So.2d 242 (1976), or to disturb the verdict of the jury where the evidence is conflicting. Parham v. State, Ala.Cr.App., 333 So.2d 912, cert. denied, Ala., 333 So.2d 915, and 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332 (1976). The weight and credence to be given the testimony of the defendant as to the issue of self-defense is a question for the jury. Moore v. State, 54 Ala.App. 22, 304 So.2d 263, cert. denied, 293 Ala. 768, 304 So.2d 268 (1974); 11A Alabama Digest, Homicide, 276.

II
It is argued that the photographs of the deceased which were taken at the hospital after his death were improperly admitted into evidence because they lacked probative value because the fact that the deceased was shot was never denied, because they reflected the condition of the accused after surgery and profound swelling and because they were gruesome.
*773 It is clear that, in a charge of homicide, the state may introduce a duly authenticated photograph of so much of the victim's body as is necessary to show the wounds inflicted by the accused. Gamble, McElroy's Alabama Evidence, 3rd Ed. § 207.01(2), p. 459, citing authorities.
As the photographs in question showed the portion of the victim's body where the wound had been inflicted, they were relevant as shedding light on the character and location of the wound and corroborating the testimony of the medical doctor and the toxicologist, even though they were cumulative and there was no dispute as to the location of the wound. Farris v. State, 57 Ala.App. 390, 328 So.2d 640 (1976); Robinson v. State, Ala.Cr.App., 335 So.2d 420, cert. denied, Ala., 335 So.2d 426 (1976).
The marks resulting from the surgery to the deceased were sufficiently identified to the jury and distinguished from the wounds caused by the bullet. Where a photograph of the deceased depicts not only the wound which allegedly caused death but also depicts a surgical incision such photograph is not rendered inadmissible because of the depiction of the surgical incision where the incision is clearly identified. Hurst v. State, 277 Ala. 686, 174 So.2d 325 (1965); Maness v. State, 57 Ala.App. 431, 329 So.2d 120, cert. denied, 295 Ala. 411, 329 So.2d 126 (1976); Means v. State, 51 Ala. App. 8, 282 So.2d 356, cert. denied, 291 Ala. 792, 282 So.2d 359 (1973).
The photographs depicted the entrance and exit wounds of the bullet. In the process of entering the right thigh of the deceased and exiting the left thigh, the bullet passed through the scrotum injuring and severing a number of blood vessels causing the scrotum itself to swell to a grotesque size. The photographs were in fact gruesome. However this fact is not, without more, an appropriate ground upon which to exclude a photograph from evidence. Davis v. State, Ala.Cr.App., 333 So.2d 168 (1976); Brown v. State, Ala.Cr. App., 331 So.2d 820 (1976).
"Gruesomeness becomes objectionable in a photograph only where there is distortion of either of two kinds; first, distortion of the subject matter as where necroptic or other surgery causes exposure of non-probative views, e. g. `massive mutilation', McKee v. State, 33 Ala.App. 171, 31 So.2d 656; or, second, focal or prismatic distortion where the position of the camera vis-a-vis the scene or object to be shown gives an incongruous result, e. g., a magnification of a wound to eight times its true size, Wesley v. State, 32 Ala.App. 383, 26 So.2d 413." Metcalf v. State, 40 Ala.App. 25, 33,108 So.2d 435, 443 (1958).
Neither kind of distortion is present in this case. The pictures were not due to be excluded because they depicted the sexual organs of the deceased. Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962). For these reasons the pictures were properly admitted.

III
The appellant complains that the trial court erred in not allowing individual questioning of the jurors at the time when the jurors were being qualified. The appellant contends that this individual questioning was necessitated by a newspaper article which appeared on the very morning the jury was to be qualified. The article was entitled "`Good time' law riles law enforcers" and expressed the "simple, unbelieving outrage" of law enforcement over the new "good time" law which would allow prisoners to earn time off for good behavior at the rate of two days for each day served and when coupled with the existing law which was not repealed, would allow prisoners to be eligible for parole consideration after serving one-third of their sentences. The appellant contends that any juror that read the article would be prejudiced into giving a harsher sentence.
After the trial court denied defense counsel's motion to question the jurors individually, counsel did not attempt to question the venire on the newspaper article stating that "asking these questions in front of the whole venire cannot help but raise doubts in those people who have read the article".
*774 Examination of jurors takes place "under the direction of the court". Title 30, § 52, Code of Alabama 1940, Recompiled 1958. The accused has no absolute right to personally interrogate each prospective juror. Bales v. State, 63 Ala. 30 (1879); Lundy v. State, 91 Ala. 100, 9 So. 189 (1890); Burns v. State, 226 Ala. 117, 145 So. 436 (1932); Annotation: Right of Counsel in Criminal Cases Personally to Conduct the Voir Dire Examination of Prospective Jurors. 73 A.L.R.2d 1187, § 7 at 1203. This is within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent an abuse of that discretion. Clark v. State, 294 Ala. 493, 318 So.2d 822 (1975); Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973).
The preferred procedure to follow is to allow counsel to ask his questions of the group of prospective jurors as a whole and then allow counsel to ask other questions of a particular juror, if requested, if any juror should give an answer which would call for more information. Massey v. State, 49 Ala. App. 345, 272 So.2d 271, cert. denied, 289 Ala. 747, 272 So.2d 278 (1972).
From the record it does not even appear that defense counsel asked the jurors whether they had read that particular edition of the morning newspaper. If counsel had done so and received an affirmative answer from any juror he could have then requested to be allowed to individually examine that juror out of the presence of the others. This issue was raised on the motion for new trial and no evidence, either by testimony or affidavit, was presented showing that any juror even read the alleged prejudicial article.
Even if a prospective juror had read the article it would not constitute a challenge for cause. The article itself made no mention of the appellant nor the crime with which he was charged. The actual punishment imposed by the jury (thirty years for second degree murder) was well within the range of their discretion and does not appear to be unusually harsh.
Because defense counsel was permitted to examine the jury venire as a whole and in view of the fact that it had not even been shown that any prospective juror read the edition of the newspaper containing the alleged inflammatory article, we conclude that the trial judge did not abuse his discretion in refusing the appellant's request to examine each juror individually. McPherson v. State, 271 Ala. 533, 125 So.2d 709 (1961); Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1962).
Mindful of our duty under Title 15, § 389, Code of Alabama 1940, Recompiled 1958, we have examined the record for any reversible error, whether called to our attention or not. We find no reversible error and the judgment of the trial court is due to be affirmed.
AFFIRMED.
All Judges concur.


176 N.W.2d 18 (1970)
185 Neb. 384
STATE of Nebraska, Appellee,
v.
Jethro BARNES, Appellant.
No. 37350.
Supreme Court of Nebraska.
March 27, 1970.
*19 A. Q. Wolf, Public Defender, Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Bernard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
CARTER, Justice.
The defendant in this case was charged with robbing one Stephen Vern Carlson of property of value by force and violence,and by putting him in fear, with intent to rob and steal. The jury returned a verdict of guilty and defendant was sentenced to serve a term of 5 years in the Nebraska Penal and Correctional Complex. The defendant has appealed.
The evidence shows that defendant went to the home of Joseph L. Williams at about 10 p. m., on February 4, 1969, accompanied by Williams and Eleanor Moore. The evidence of all three is that defendant and Williams commenced drinking intoxicating liquor. Defendant testified that he drank many drinks and many kinds of drinks, including whiskey and 2 or 3 ounces of Romilar RCF, a nonprescription cough syrup. Williams testified that he called a cab about 2:30 a. m., and that he helped or carried defendant to the cab at about 3 a. m. because he was so drunk that he could not stand or walk by himself.
Carlson, the cab driver, testified that he answered the call for a cab, that defendant entered the cab, and the other man seen at the door went back into the house. Carlson said he opened the door from the inside and defendant sat down in the back seat. Defendant asked him to write down the address where he entered the cab and Carlson wrote it down and gave it to him. It was later found on his person by the police. Carlson asked where he wanted to go and defendant gave him two or three different addresses. After some driving, defendant asked to be let out at 2407 Brown Street. The cab stopped at that address. Defendant asked if Carlson knew what he had in his pocket. Carlson said he imagined it was a gun. Defendant said, "Yes. You know what I want now, don't you?" Carlson said, "I suppose you want my money." Defendant said, "Yes. * * * Lots of it." He had told Carlson that he had a .38 caliber pistol. Carlson gave him his money. He handed it back over his shoulder, dropping some of the bills on the floor. While defendant was picking up the money, Carlson took the keys from the cab, *20 jumped out, ran to his home close by, and reported the robbery. On his return to the cab the police were there. Carlson testified that defendant appeared to be drunk but he smelled no odor of liquor.
Defendant testified that he had no recollection of anything that happened from the time the cab was called until after he was in the police station.
Defendant called Williams as his first witness. Williams testified on cross-examination that he was 20 years of age and resided at 2522 Saratoga, the place where the drinking occurred just prior to defendant's arrest. He stated that he was presently living temporarily with his mother at 2865 Bristol. He was then asked: "Q. Where are you living now? A. At 2522 Saratoga. Q. Where did you sleep last night, Joe? A. Last night? Q. Yes. A. Upstairs in the County Jail. Q. How long have you been in County Jail? MR. MONTAG: Outside of direct examination. THE COURT: I am going to allow it for the purpose of showing interest. You may proceed. THE WITNESS: Over 84 days. BY MR. CORRIGAN: Q. Can you tell me what day you started living there? THE COURT: I think I will stop it right now. I will sustain the objection. BY MR. CORRIGAN: Q. How long has Jethro Barnes been in the County Jail? MR. MONTAG: I object. THE COURT: He may answer. THE WITNESS: I don't know. * * * Q. How long have you known Jethro? * * * where did you know him from? A. I was in the Boys Training School with him. Q. Are you fairly close friends? A. Not fairly close." It is the contention of the defendant that the foregoing evidence constituted prejudicial error.
It is the contention of defendant that evidence of defendant's previous incarceration in jail or a juvenile detention center is inadmissible unless the defendant has first placed his character in issue, is incident to the establishment of a prior felony conviction or some other fact relevant to the issues, and then only if its relevancy outweighs its prejudicial effect. The case is unusual in that the claimed error arose out of the cross-examination of a defendant's witness and not the cross-examination of the defendant himself. The State, in cross-examining the witness Williams, attempted to show Williams' close relationship with the defendant. The cross-examination developed that Williams was in the county jail during the time that defendant was being held for trial in the instant case. Williams testified that there was no discussion of the instant case while he and defendant were in the county jail.
When Williams was asked how long he had been in the county jail, defendant objected that the question was outside the direct examination. No other objection was ever made and, particularly, no objection was ever made on the ground here assigned as error. Defendant cites Latham v. State, 152 Neb. 113, 40 N.W.2d 522, in support of his contention. In that case defendant admitted on cross-examination that he had been convicted of felonies on four previous occasions which was proper. The State pursued the matter further by inquiring into the nature of the crimes and the duration of the sentences which was improper and to which no objections were made. The court said: "Defendant failed to properly or sufficiently challenge by objection the cross-examination. His claim of error because of the cross-examination is without substance." In Rimpley v. State, 169 Neb. 171, 98 N.W.2d 868, a similar case, this court said: "Error may not be claimed because of the nature of cross-examination if it was not on the trial challenged by timely and proper objection thereto." We fail to see, in any event, how the evidence of Williams that he, Williams, had been in jail for 84 days was prejudicial to the defendant. The fact that a defendant in a criminal case spent time in jail awaiting the trial is a matter of *21 common knowledge to the jury and creates no inference of other crimes within the meaning of the rule. The statement by Williams that he had first met the defendant in the Boys' Training School, without objection to the question or a motion to strike the answer, is so wanting in prejudice to defendant's right to a fair trial, as to furnish no basis for a reversal. The defendant is entitled to a fair and impartial trial, but not a perfect one.
The primary issue here is whether the evidence is sufficient to sustain a verdict of guilty. The defendant contends that he was so intoxicated that he was wholly deprived of reason and the intent necessary to commit the crime charged as a matter of law. The evidence shows that defendant had been drinking intoxicating liquors for a considerable period of time before the robbery. Witnesses for the State and defendant are in agreement that defendant appeared to be intoxicated. Voluntary intoxication is ordinarily no excuse or justification for the commission of crime. Excessive intoxication may prevent deliberation or the formation of a criminal intent. Whether excessive intoxication is such as to prevent a defendant from formulating criminal intent is a question of fact to be determined from the evidence and surrounding circumstances and therefore for the jury. The jury was properly instructed on the effect of excessive intoxication and the jury determined the question adversely to the defendant. Even though the evidence established without doubt that defendant was intoxicated, it is for the jury to determine if defendant was capable of deliberation or of forming the intent to commit the crime charged. State v. Brown, 174 Neb. 393, 118 N.W.2d 332; Tvrz v. State, 154 Neb. 641, 48 N.W.2d 761.
We find no prejudicial error in the record and the judgment is affirmed.
Affirmed.


18 Md. App. 552 (1973)
308 A.2d 692
ALGERMON GRANDVILLE COUSINS
v.
STATE OF MARYLAND.
No. 703, September Term, 1972.
Court of Special Appeals of Maryland.
Decided August 8, 1973.
The cause was argued before THOMPSON, MOYLAN and DAVIDSON, JJ.
Charles Miller, with whom was Charles J. Kittredge on the brief, for appellant.
Harry A.E. Taylor, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, and E. Garrison Neal, Assistant State's Attorney for Prince George's County, on the brief, for appellee.
THOMPSON, J., delivered the opinion of the Court.
Algermon Grandville Cousins, appellant, was convicted of robbery by a jury in the Circuit Court for Prince George's County, Judge William B. Bowie presiding. A sentence of 8 years was imposed. On appeal Cousins contends that the judgment should be reversed because (1) a photographic identification was tainted; (2) the evidence as to his criminal agency was insufficient to support the conviction; and (3) the prosecutor improperly cross-examined the accused concerning a prior conviction.
At about 11:15 p.m. on January 24, 1970, a lone robber made off with approximately $140 from Arby's Roast Beef House at Coral Hills in Prince George's County. At the time of the robbery the only other persons in the restaurant were two employees, Mr. Steve Cornell Isom and Mr. Ernest *554 Tyrone Best. The employees described the robber to police as being approximately 6 feet to 6 feet 3 inches in height and weighing approximately 190 pounds. He was a light-skinned negro with a medium bush haircut. Soon after the robbery a suspect, not the appellant, was viewed by the two witnesses but both of them declared that he was not the robber. Later both employees were taken to the police station where they viewed a large number of photographs but identified no one. The photograph of appellant was not among those viewed by the employees at that time. Some two months later, on March 21, 1970, Detective Raymond E. Daniels visited the witnesses separately in their homes and displayed a group of 31 photographs to each. Both witnesses selected one of these photographs but with different degrees of certainty. At his home Mr. Isom stated that the robber was the person photographed in what became State's Exhibit No. 14; concededly that exhibit is a photograph of appellant. Mr. Best selected the same photograph as "looking like the robber" but was unable to make a positive identification. Appellant was not apprehended until almost two years later, January 10, 1972, at which time he was photographed and the photograph was introduced into evidence as State's Exhibit No. 33.
At the time of his arrest and at the time of the trial, appellant wore a large bush haircut, long sideburns, a mustache and a goatee. State's Exhibit No. 14 taken on September 25, 1968 shows at that time the appellant wore short hair and sideburns and had no mustache nor goatee.
At the trial, on July 11, 1972, Mr. Isom stated that appellant looked like the person whom he had identified from a picture on March 21, 1970 but due to the two and one-half year time lapse he could not positively identify appellant as the robber. He did indicate that appellant looked like the person in the photograph he had previously identified.
Mr. Best testified that although two months after the robbery he had selected the photo of the appellant as looking like the robber, he could not at the trial say that the appellant was that person. He explained "[w]ell, there are *555 some similarities, but it is not, you know, a very very good resemblance of the person", pointing out that "the person that took the money ... didn't have a beard, mustache, didn't have long sideburns." The evidence showed that the restaurant at the time of the robbery was well lighted and both employees had an opportunity to view the robber for several minutes.
The appellant testified denying participation in the robbery and stated that his appearance in the photograph taken at the time of his arrest was more like his appearance on the date of the robbery than the photograph which was taken in 1968.

I Tainted Identification
Upon objection to the photographic identification, the court conducted a hearing out of the presence of the jury. At the conclusion of the hearing, the trial judge ruled that there was no evidence to show that the March 21, 1970 identifications were tainted but inasmuch as the State's Attorney had shown each of the two witnesses the single picture, State's Exhibit No. 14, on the morning of the trial, he would preclude the State from attempting to show the new photographic identification. On appeal, appellant contests this ruling only on the basis that there were certain unidentified markings on the back of the pictures. As all of the witnesses testified that the identifications were made without viewing the backs of the pictures, we are unable to see how those markings could have in anyway tainted the March 21, 1970 identifications. We agree completely with the finding of the trial judge that there was nothing to show these identifications were in anywise tainted. The appellant failed to carry his burden of showing that the photographic identifications were the product of improper suggestion. Williams v. State, 11 Md. App. 607, 275 A.2d 522 and Brown v. State, 10 Md. App. 462, 271 A.2d 182.
Citing McGilton v. State, 12 Md. App. 174, 278 A.2d 76 and Smith and Samuels v. State, 6 Md. App. 59, 250 A.2d 285, appellant argues that the exhibition of a single *556 photograph immediately prior to trial was so suggestive that the in-court identification should not have been admitted in the absence of a showing that the identification was based on an independent source. The easy answer to this objection is that the defendant made no objection to the in-court identifications, such as they were, therefore, there was no occasion for the State to attempt to show that the courtroom identifications were based upon an independent source; see Boswell v. State, 5 Md. App. 571, 249 A.2d 490 and Thompson v. State, 6 Md. App. 50, 250 A.2d 304. There is nothing before this Court to review. Md. Rule 1085.

II Sufficiency of the Identification Evidence
Appellant argues that under Gibbs v. State, 7 Md. App. 35, 253 A.2d 446, we should hold that the identifications were insufficient to support the conviction. In Gibbs, the only identification witness stated positively he was mistaken as to his extra-judicial identifications and that he not only could not identify appellant at the trial as the man who robbed him but stated positively that he was not the person who robbed him. We do not think that case is controlling under the facts here. Only Best gave any indication that the man on trial was not the robber and, in addition, he was very equivocal and pointed specifically to the longer hair, sideburns, mustache and goatee as reasons he could not say that the accused looked liked the robber. The other witness, Mr. Isom, not only made a positive out of court identification but stated in court that in his opinion the appellant looked like the robber. There is quite a distinction between a witness who says that he was mistaken in a prior identification and that the person on trial was not the criminal and a witness who states that he was positive of the prior photographic identification but cannot positively say that the person presently on trial is the robber especially where there has been evidence to indicate that the accused's appearance has substantially changed since the identified photograph was taken.
Getting closer to the point, appellant cites People v. *557 Gould, 354 P.2d 865, 870, wherein the court stated its holding very broadly:
"An extra-judicial identification that cannot be confirmed by an identification at the trial is insufficient[1] to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime. See Reamer v. United States, 6 Cir., 229 F.2d 884, 886. Moreover, the probative value of an identification depends on the circumstances under which it was made. Mrs. Fenwick merely selected one of a small group of photographs. The small size of the group increased the danger of suggestion. (See 3 Wigmore, Evidence (3d ed. 1940) § 786a, p. 164.) Identification from a still photograph is substantially less reliable than identification of an individual seen in person. (See id., pp. 165-166.) It becomes particularly suspect when, as in the present case, the witness subsequently fails to identify the subject of the photograph when seen in person and there is no other evidence tending to identify him."
Under the circumstances of the present case we decline to follow the California rule as stated. We note that the authority relied on by the court, Reamer v. United States, supra, was a case where a masked bandit was identified only by his voice, not by his appearance. We further note that in Gould the accused's picture was selected from a small number of photographs where in the instant case the appellant's picture was selected from a large number of photographs. We note further that in Gould there was no evidence to suggest that the accused's appearance had changed between the time of the crime and the time of the trial. Indeed it would be a dangerous rule to permit an accused to escape conviction only because his appearance has been substantially altered so that witnesses who *558 identified photographs before trial are unable to state with absolute certainty that the accused as he appeared at trial was the criminal. Although the accused denied such alteration in his appearance there was no obligation on the trier of the facts to accept this denial.
We faced a somewhat similar situation in Holmes v. State, 10 Md. App. 253, 269 A.2d 175, wherein there was a substantial change of appearance and although a witness had identified the accused at a preliminary hearing he was unable to do so in court. He did however identify as the robber, the photograph of the accused taken at the time of his arrest. We held that the out of court identification under those circumstances was sufficient to support the conviction.
Maryland has long held that evidence of an extra-judicial identification is admissible as substantive and not corroborative evidence when made under circumstances precluding suspicion of unfairness or unreliability and where the out of court declarant is present at the trial and subject to cross-examination. The cases were reviewed in Johnson v. State, 237 Md. 283, 206 A.2d 138, and Holmes v. State, supra. It is, of course, well established the test for reviewing the sufficiency of the evidence in Maryland appellate courts is whether or not there is any evidence from which there can be a rational inference of guilt. Williams v. State, 5 Md. App. 450, 247 A.2d 731. Under the circumstances of this case we hold that the question was a matter of weight to be determined by the jury.
Appellant makes the additional argument that because the trial judge stated, out of the presence of the jury, that if the case were being tried before him the State would be in trouble and that if he were sitting as a member of the jury he would vote to acquit, as evidence that the trial judge thought the evidence was insufficient to sustain the verdict and that he should have granted the defense's motion for judgment of acquittal.
When the trial judge is the trier of the facts, he, like a jury, must weigh the evidence and make a determination in accordance with the evidence. If, on the other hand, he is considering the motion to acquit during a jury trial, he sits *559 in identically the same position as this Court and must make a determination whether there is any evidence from which the jury could rationally infer guilt. Vuitch v. State, 10 Md. App. 389, 271 A.2d 371. In the instant case there was evidence from which a rational mind could infer guilt.

III Motion for Mistrial
During cross-examination of appellant, the State asked, "Are you the same Algermon Cousins that was convicted in 1971 of indecent exposure in the District of Columbia?" Upon objection, the court sustained the objection apparently on the basis that he did not think such a conviction bore upon credibility. Whereupon the defense moved for a mistrial which was denied by the court; however, the jury was directed to ignore the question and not to speculate as to the answer saying, "It has absolutely nothing to do with this case in any way, shape, or form." Assuming without deciding that the question was improper, we think the trial court's prompt admonition to the jury was sufficient to remove any prejudice. Graham v. State, 13 Md. App. 171, 282 A.2d 162, Gerstein v. State, 10 Md. App. 322, 270 A.2d 331, Brunson v. State, 9 Md. App. 1, 261 A.2d 794 and Hurley v. State, 6 Md. App. 348, 251 A.2d 241.
Judgment affirmed.
NOTES
[1]  As reported the case used the word "sufficient" instead of "insufficient". The complete text and other reports of the case show that the error was a misprint. See 54 Cal.2d 621, 631, 7 Cal. Rptr. 273, 278.