
    Canto v. The State.
    Murder.
    (Decided December 19, 1916.
    73 South. 826.)
    1. Appeal and Error; Review; Motion to Quash. — It being within the discretion of the trial court whether it will put a defendant to his demurrer or plea in abatement to an indictment, any error in overruling a motion to quash is not reviewable, unless an abuse of discretion is shown.
    2. Same; Bill of Exceptions; Necessity. — The court cannot review charges requested by and refused to a defendant in a criminal case in the absence of a bill of exceptions,, and where the court’s oral charge is not set out.
    Appeal from Jefferson Criminal Court.
    Heard before Hon. Wm. E. Fort.
    Joe Canto was convicted of manslaughter in the first degree and he appeals.
    Affirmed.
    M. Frank Cahalin, for appellant.
    W. L. Martin, Attorney-General, for the State.
   EVANS, J.

Appellant was convicted of manslaughter in the first degree and sentenced to a term of 10 years’ imprisonment. The appeal is upon the record proper without a bill of exceptions.

Error cannot be predicated upon the overruling of the motion to quash the indictment; it is a matter of discretion with the trial court whether it will put the defendant to his demurrer or plea in abatement, as the case may be. — Amos Smith’s Case, infra, 73 South. 824; Bryant’s Case, 79 Ala. 724; Mosely’s Case, 1 Ala. App. 108, 56 South. 35; Josiah Clark’s Case, 14 Ala. App. 633, 72 South. 291.

The statute requires the mero motu charge given by the trial court to be set out in the transcript. — Acts 1915, p. 815. This does not appear. In the absence of the mero motu charge, and of a bill of exceptions, this court cannot review the written requests to charge refused to appellant. — Mitchell’s Case, 14 Ala. App. 104, 71 South. 982; Clay’s Case, 14 Ala. App. 665, 71 South. 982; Clark’s Case, 14 Ala. App. 633, 72 South. 291; Borough’s Case, 14 Ala. App. 110, 72 South. 208.

Aside from these questions, the record proper discloses .no error. The judgment entry and proceedings had in support thereof appear in all things to be regular, and the judgment below is accordingly affirmed.

Affirmed.  