The defendant and appellant in the above suit has been tried and convicted of horse stealing, and from a judgment sentencing him to two years’ imprisonment in the penitentiary, be has taken this appeal.
Defendant assigns for error :
First — That the record does not show that the defendant was present in court during the various stages of the trial.
Second — That the record does not show that the accused was asked, before sentence, if he had anything to say why sentence should not be-pronounced against him.
First — We think thé record does show that the accused was present during the trial. He was arraigned and pleaded not guilty. During the course of the trial several bills of exceptions were taken to the rulings of the judge, and after conviction he filed a motion for a new trial.
Second — The transcript, which is very badly made up, does not show that the accused was asked if he had anything to say why judgment *394should not be pronounced against him. But we do not consider this ceremony necessary, though usual and, perhaps, prudent, in cases not capital. 4 Black. 375; 2 Hale’s P. C. 401, 407, 408; 1 Chit. Cr. Law 720; West v. State, 2 Ala. 212, Archibald C. of Practice, p. 676.
Third — The regular venire drawn for the term was set aside on objections urged by defendant, that it had been drawn under the act of 1873 instead of that of 1868, and the special venire shows that it was drawn under an order of the judge commanding the same.
The refusal the judge to permit the accused to contradict the official acts of the clerk by his parol evidence was proper.
It is therefore ordered that the judgment of the lower court be - affirmed with costs of appeal.
Rehearing refused.