In the preliminary order, setting the day, and ordering the sheriff to summon persons for the trial of the prisoner, the circuit court followed the statute, Code of 1876, § 4874, as we have construed it in Floyd v. The State, 55 Ala. 61, Shelton v. The State, 73 Ala. 5, and in the case of Posey v. The State, 73 Ala. 490.
In the judgment entry of the trial and conviction, the clerk attempted, by way of recital, to repeat the order for summoning a jury, previously made; and in' the attempt, failed to copy correctly. This was wholly unnecessary, and we will re*576g'ard the. order first made as the correct and controlling one. The first was the order of the court; t]ie last the error of the clerk.
The first charge asked and refused is in the precise language of that held improper and misleading, in Mickle v. The State, 27 Ala. 20, and in Faulk v. The State, 55 Ala. 415.
The second charge asked, so far as we can perceive, was rightly refused. It, in effect asked, that unless the jury wefte convinced the defendant was guilty of murder in the first degree, he could not be convicted of any thing. The record informs us it does not contain all the evidence. Under the indictment in this case, there could have been a conviction of murder in the first or second degree, or of manslaughter in the first or second degree. We can not know there was not testimony tending to show the defendant was guilty of some other grade of homicide. We are bound to suppose, in support of the court’s ruling, there was such testimony, in the absence of its negation in the record. It would require a very strong and clear case to justify the charge asked.—Ex parte Nettles, 58 Ala. 268; Mitchell v. The State, 60 Ala. 26 ; Clark’s Manual, § 480 ; Gluze v. Blake, 56 Ala. 379 ; Williams v. Barksdale, 58 Ala. 288.
The judgment of the circuit court is affirmed.