Appellant was convicted of the offense of rape, and given a sentence to serve imprisonment in the penitentiary for a term of 10 years. A discussion of the testimony seems unnecessary.
An application for a continuance in a criminal case on account of absent witnesses is addressed to the discretion of the trial court, and its refusal is not revisable on -appeal, unless it is plainly shown that there was an abuse of such discretion by -the said court. Huskey v. State, 129 Ala. 94, 29 So. 838.
We are not persuaded that the trial court abused its discretion in refusing to grant a continuance in this case, when it was called for trial, on account of the absence of the appellant’s witness Dr. Garrison.
There was no error in refusing to allow appellant (defendant) to introduce in evidence the indictment returned against him at a former term of court charging him with the offense of “assault with intent to ravish,” growing out of the same occurrence as that that gave rise to the trial under the instant indictment for “rape.”
The bench notes of the trial judge show that a “special venire” in this case was duly waived by the defendant. This is sufficient. McSwean v. State, 175 Ala. 21, 57 So. 732. And appellant cannot now be heard to complain that the judgment entry does not record the fact that he waived his right to a special venire in accordance with Code 1923, § 8651.
We discover nowhere any prejudicial error, and the judgment is affirmed.
Affirmed.