
    George Bush v. State of Nebraska.
    Filed March 18, 1896.
    No. 8203.
    1. Review: Continuance: Rulings Below. An assignment of error for the overruling of a motion for a continuance will not he considered by this court when the record fails to disclose that such motion was passed upon by the trial court.
    2. Instructions: Exceptions: Review. Instructions will not be reviewed unless the record shows they were excepted to when given.
    3. -: Repetitions. It is not error to refuse an instruction where the substance thereof has been given to the jury in other instructions.
    4. Burglary: Evidence. Held, That the evidence sustains a conviction for burglary.
    Error to the district court for Lancaster county. Tried below before Tibbets, J.
    
      Coffin & Stone, for plaintiff in error.
    
      A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, for tbe state.
   Norval, J.

Tbe defendant, George Busb, was tried and convicted on a -charge of feloniously breaking and entering a dwelling-house in tbe night time with tbe intent to commit a larceny. Judgment and sentence of imprisonment in tbe penitentiary for tbe period of eight years were entered against him, from which be prosecutes error to this court.

Tbe defendant’s motion to strike out tbe unauthenticated statement of tbe trial judge, found in tbe transcript, of what transpired during tbe proceedings, is sustained, as it is not made part of the record in this case.

It is argued that the court erred in overruling the defendant’s motion for a continuance. With the statement above referred to eliminated from the record there is nothing to show that the defendant’s application for a continuance was not granted, or if denied that an exception was taken to the ruling. This assignment is not, therefore, well taken.

Criticisms are made in the brief of the second, third, fourth, fifth, sixth, ninth, and tenth instructions given by the court on its own motion. The record fails to disclose that an exception was taken to the giving of any of said instructions, hence no foundation has been laid for their review here, and they will not -be considered. (Heldt v. State, 20 Neb., 492; Hill v. State, 42 Neb., 519; Carleton v. State, 43 Neb., 373; Gravely v. State, 45 Neb., 878.)

The defendant requested twenty-one instructions, all of which were refused by the court, and an exception was taken to such refusal. We have examined the several requests to charge, and find that in so far as they correctly state the law applicable to the case they have been fully covered by the instructions given, therefore it was not reversible error to refuse to repeat them. (Kerkow v. Bauer, 15 Neb., 150; City of Lincoln v. Smith, 28 Neb., 762; Olive v. State, 11 Neb., 1.)

It is argued that the evidence failed to show that the breaking and entering of the building occurred in the night-time. If the state’s witnesses are to be believed, the crime was committed during the night-season. There is in the record some -evidence tending to show that it was daylight at the time the defendant effected an entrance to the building. The jury passed upon the conflicting evidence, and we discover no reason why their verdict should be disturbed.

Affirmed.  