
    Thomas v. The State.
    
      Indictment for Grand larceny.
    
    1. «S'ettimj aside siibmission,for amendment of bill of exceptions. — When a criminal case has been regularly submitted, the submission will not be set aside on motion, in order to enable the appellant to correct or amend the bill of exceptions, when the amendment, if made and allowed, would not have entitled him to the general charge on the evidence, the refusal of which is the only matter excepted to and presented for revision.
    From the Circuit Court of Butler.
    Tried before the Hou. John P. FIurbard.
    The defendant in this case was indicted for the larceny of a mule, was convicted, and sentenced to the penitentiary for the term of four years. The bill of exceptions purports to set out all the evidence introduced on the trial, and shows that the only exception reserved by the defendant was to the refusal of the general charge, asked by him in writing. After the submission of the case in this court, the defendant entered a motion to set aside the submission, in order to give him an opportunity to amend the bill of exceptions, by correcting its statements as to the testimony of witnesses tending to identity the mule. The following opinion was delivered in response to the motion.
    Jno. Gindrat Winter, for appellant.
    Wm. L. Martin, Attorney-General, for the State.
   CLOPTON, J.

This 'cause was submitted December 18, 1890. Appellant subsequently moved to set aside the submission, in order to allow him an opportunity to move to correct the bill of exceptions. We will not pass upon the sufficiency óf the showing to set aside the submission for the purpose mentioned. If the bill of exceptions were corrected, by striking out the portions which appellant insists are improperly inserted, and incorporating in lieu thereof the evidence as he states it was given on the trial, it is evident that the testimony, which would be shown by the bill of exceptions as thus corrected, would be of such character as to dis-entitle appellant to the general affirmative charge, the refusal to give which is the only error complained of. Setting aside the submission, and correcting the bill of exceptions, would not avail a reversal of the judgment.

The motion is overruled, and judgment affirmed.  