¶1On Application for Rehearing
¶2In our opinion after remandment from the Supreme Court we observed: “Prior to the attempt to lay the predicate the witness Holly had not testified that Sparks hit him at any time during the affray. In the *637predicate he was asked if he did not state to Mr. Thrower that Sparks did not hit him.”
¶3On application for rehearing after remandment appellant’s attorney insists that the record does not sustain this conclusion.
¶4We will copy from the record everything that was said by the witness Joe Holly in this aspect prior to the time in the proceedings that the predicate was laid:
“Q. Joe, I want you now to tell the Court and Jury just how this difficulty started down there at the Top Hat that night, start at the beginning and tell us what happened. A. When it .first started I went inside to get a pack of cigarettes, you know where the bar is at …
“A. And so I come back through the door there and he was standing there and he said ‘I’ll bet you a hundred dollars my car will outrun yours’ and so he said that and I said ‘No, I am not going to bet you’, and he said ‘Well are you chicken or what’ and I said ‘Don’t call me no chicken’, and he said ‘Oh, so you don’t like it’, and I said ‘If you put it that way no, I don’t like it’, and he ran into me and grabbed me and we fell in between two tables, we turned one of them over and I kinda got to my feet, and this fellow Sailors hit me with a club from behind, I didn’t know who it was that was hitting me and I guess he hit me about four times and I was trying to hold Melvin to keep him from hitting me
“A. So I turned and Mr. Sailors was hitting me with a stick and I felt a lick from behind me on the head.
“Q. Was your back to the Defendant at that time? A. Yes, sir.
“Q. And you were facing Mr. Sailors? A. Yes, sir.
“Q. And then you felt a lick on the back of your head? A. Yes, sir, that is all I remember, I don’t remember any more until outside.”
¶5The predicate was as follows: “At your apartment, at your home, after this fracas came up and you were talking about the trouble you had down there and talking about the injuries to your head, do you recall making a statement to Mr. Thrower to this effect, ‘Mr. Sparks didn’t hit me,’ that it was Frank Sailors that tore my head up and hit me?”
¶6It is evincingly clear that the predicate inquiry related to licks on the head of Holly. In this aspect Holly testified that Sailors hit him. He never testified that Melvin Sparks hit him on the head. The nearest he came to it was when he stated that his back was to Sparks and he felt a lick on the back of his head.
¶7On review in the appellate courts all legitimate and fair presumptions must be resolved in favor of the rulings at nisi prius. In other words, error must affirmatively appear. Grissom v. State, 33 Ala. App. 23, 30 So.2d 19; Shewbart v. State, 33 Ala.App. 195, 32 So.2d 241.
¶8The rule prevails that on appellate review, even in criminal cases, error is not presumed and the burden rests on the appellant to establish it. Garrett v. State, 248 Ala. 612, 29 So.2d 8.
¶9In the case of Livingston v. State, 7 Ala. App. 43, 61 So. 54, reversed Ex parte State, 181 Ala. 4, 61 So. 53, this court held in effect that the privilege to impeach a witness by making proof of inconsistent prior statements is conditioned upon distinctly and clearly calling his attention with reasonable certainty to the time, place, and the person or persons to whom, or in whose presence, the statement was made. In the original opinion it was held that there was a failure in this respect, and a reversal of the judgment was ordered. On certiorari to the Supreme Court it was pointed out that the record did not affirmatively show the omission. The Supreme Court observed: “Upon appeal it is incumbent upon the appellant to affirmatively show error, and this rule applies to predicates as well as other questions, as the presumption is that the trial court did its duty, and that a predicate was laid, when required, unless it affirmatively appears that it was not properly established.”
¶10*638In the matter of instant review we do not have a similar factual situation, but the logic of the above rule is clearly pertinent and influencing.
¶11We adhere to our former view, and the application for rehearing is denied.
¶12Application for rehearing overruled.