There was no error in the ruling of the court in overruling the defendant's *Page 619 objection to the argument of the solicitor. It probably would be better if trial judges would eliminate as far as possible this character of argument, yet, when analyzed in this case, the facts stated were within the evidence, and it was a question as to whether the jury would believe the defendant's testimony or that of the state. If would create, however, a better respect for law and order if counsel for both the state and defendant would in the trial of cases make reference to the state's and defendant's evidence, and of the witnesses giving the testimony, as such, rather than that one or the other was of a particular race or color. The cases of James v. State,170 Ala. 72, 54 So. 494, and Simmons v. State, 14 Ala. App. 103,71 So. 979, do not support the defendant's contention in this case.
The trial court will not be put in error for refusing to give the affirmative charge, on account of a variance in the proof as to time, when this fact was not called to the attention of the trial court. See rule 35, Circuit Court Rules, 175 Ala. p. xxi; Hendrix v. State, 11 Ala. App. 207, 65 So. 682; Cook V. State, 17 Ala. App. 611, 88 So. 58.
Written charge 3 is abstract, and was properly refused.
We find no error in the record, and the judgment is affirmed.
Affirmed.