
    (121 So. 8)
    BYERS v. STATE.
    (7 Div. 496.)
    Court of Appeals of Alabama.
    Feb. 5, 1929.
    Rehearing Denied Feb. 26, 1929.
    
      Frank B. Embry, of Pell City, for appellant.
    Charlie C. McCall, Atty. Gen., for the State.
   SAMFORD, J.

Motion was made by defendant for a continuance of his case on the ground that jurors from which he was to select a jury were present in court and heard the testimony in the case of State v. Caldwell, in which Caldwell was being tried for the unlawful possession of the still here involved. Upon examination it was ascertained that four of the jurors on the regular panel were present and heard the testimony in the Caldwell Case, but they each said that they had not formed or expressed an opinion as to the guilt or innocence of the defendant. The granting of a continuance under these facts was within the sound discretion of the court. Sandlin v. State, 19 Ala. App. 583, 99 So. 784; Cline v. State, 20 Ala. App. 578, 104 So. 347 ; Sanders v. State, 22 Ala. App. 358, 116 So. 329.

Refused charge, which we have numbered 4, is an argument pure and simple.

Refused charge, which we have numbered 6, is confusing and has a tendency to mislead. The jury was fully chárged upon the law of reasonable doubt. Such charges as No. 6 are calculated to confuse the minds of the jury and should never be given.

Causes must be tried on the evidence adduced on the trial, and not on the absence of testimony. For this reason charge 5 was properly refused.

After the charges given at the request of the defendant were read to the jury, the court gave some explanations regarding them; but no exception was reserved to this, and hence this point is not considered-.

We find no error in the record, and the judgment is affirmed.

Affirmed.  