#### Gilbert *v.*The State.

*Murder.*

(Decided Dec. 21, 1911.

57 South. 127.)

1. *Continuance; Discretion.*— In tbe absence of abuse of discretion, a trial court will not be put in error for refusing a motion for continuance on account of absent witnesses.

2. *Appeal and Error; Review; Instructions; Request.*— Unless it affirmatively appears of record that charges requested were requested in writing, this court will not review the action of the trial court in refusing such charges.

3. *Same; Record; Matters Not Shown.*— AYhere the bill of exceptions shows simply that the defendant requested thé following charges which were refused, and further shows that the charges were endorsed, refused by the trial judge, it is not made affirmatively to appear that the charges were requested in writing, or that they were separately requested.

Appeal from Jefferson Criminal Court.

Heard before Hon. William E. Foet.

From a conviction of manslaughter, Gilbert appeals.

Affirmed.

No counsel marked for appellant.

*95E. O. BriokkIj'íj, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.

The matter of continuance was within the discretion of the trial court, and not revisable on *appeal.*— House *v. The State,*139 Ala. 132; *Terry v. The State,*120 Ala. 287; *Walker v. The State,*117 Ala. 85. Counsel discuss the charges refused,- and cite authority in support of their contention that they were properly refused, but in view of what is said in the opinion, it is not deemed necessary to here set them out.

PELHjAM, J.

The trial court’s action in overruling the defendant’s motion for a continuance on account of absent witnesses was a matter resting in the sound discretion of the court-. No abuse is shown of the discretion and therefore no error was committed in denying the *motion.*—House *v. State,*139 Ala. 132, 135; *Terry v. State,*120 Ala. 287, 292; *Walker v. State,*117 Ala. 85, 87; *Carr v. State,*104 Ala. 4, 14; *Lowery v. State,*98 Ala. 45, 50; *Walker v. State,*91 Ala. 76, 79; *White v. State,*86 Ala. 69, 74; *De Armon v. State,*77 Ala. 10, 15; *Starr v. State,*25 Ala. 49, 51.

The charges set out as requested by the defendant and refused are not show to have been requested in writing, nor to have been separately requested. Immediately preceding the charges as they appear set out in the bill of exceptions is the following statement: “The defendant requested the following charges, which were refused.” The bill of exceptions further shows that each of the charges was endorsed “refused” by the trial judge, and that an exception was reserved to the action of the court in refusing each of such charges, but it nowhere appears that the charges were separately requested, or that they were requested in writing; and it is necessary, to present the action of the trial court in *96refusing special charges requested for review by this court, to show affirmatively by the record that the charges requested were in *writing.-*—Henderson *v. State,*137 Ala. 83; *Foxworth v.*Brown, 114 Ala. 299; *Bellinger v. State,*92 Ala. 86; *Walker v. State,*91 Ala. 76; *Ricketts v. B. S. Ry. Co.,*85 Ala. 600; *Wheless v. Rhodes,*70 Ala. 419; *Crosby v. Hutchinson,*53 Ala. 5.

The record contains no error, and the case will be affirmed.

Affirmed.