
    No. 8739.
    Howard v. The State.
    
      Practice. — Supreme Court. — Record.—Where the only error assigned is upon the overruling of a motion for a new trial, and the evidence is not in tlie record, but there is a bill of exceptions therein showing the instructions given by the court, both oral and written, but not showing that any exception was taken at the time to the giving of either, no question is presented for the decision of the Supreme Court.
    Evom l-lie Clark Circuit Court.
    
      J. B. Meriwether, for appellant.
    
      D. P. Baldwin, Attorney General, and W. W. Thornton, for the State.
   Woods, J.

— The appellant ivas indicted, convicted, and sentenced to the state-prison for four years, upon a charge of assault and battery with intent to commit a rape. Error is assigned only upon the overruling of the motion for a new trial. The evidence is not in the record. There is a bill of exceptions showing the written instructions of the court to the jury, and that the court repeated orally to the jury the substance of one of the written charges. The bill also shows that the court, before the commencement of the argument, was requested by the appellant to give its instructions in writing. It does not appear that any exception was taken to any of the instructions, written or oral, and it is expressly-stated in the bill of exceptions, that “said verbal repetition ■was not excepted to at the time.” The record presents no. question for decision.

The judgment is affirmed, with costs.  