Appellant was indicted in Jefferson County for the murder of Joe Lopez by shooting him with a pistol. On his trial accused was convicted of murder in the first degree and his punishment fixed at imprisonment in the penitentiary for life.
The transcript on appeal contains the record proper, a motion for new trial, judgment overruling the motion, and defendant's given and refused charges.
There is no bill of exceptions. The grounds of motion for new trial were:
1. That the evidence was not sufficient to support a verdict finding defendant guilty of murder in the first degree. As of course, this question cannot be reviewed in the absence of a bill of exceptions setting out the evidence before the jury.
2. Alleged omission to charge the jury on the presumption of innocence in the court's oral charge. The oral charge is not set out, nor other evidence of such omission.
3. That the verdict was contrary to defendant's given charge No. 4, a charge upon apparent danger to the life of defendant at the hands of deceased as an element of self-defense. The charge in terms, and quite properly, instructed the jury that the presence of such danger was to be determined from the evidence. Manifestly, this ground of the motion cannot be reviewed in the absence of a bill of exceptions.
4. The only charge refused to defendant was an affirmative charge for defendant. This cannot be reviewed for reasons stated.
No error appearing, the judgment and sentence are due to be and are affirmed.
Affirmed.
GARDNER, C. J., and FOSTER and STAKELY, JJ., concur. *Page 209