
    (116 So. 808)
    HELMS v. STATE.
    (4 Div. 389.)
    Court of Appeals of Alabama.
    April 17, 1928.
    Rehearing Denied May 8, 1928.
    Charlie C. McCall, Atty. Gen., for the State.
    Brief did not reach the Reporter.
   BRICKEN, P. J.

The indictment charged this appellant with the offense of murder in the first degree. By operation of law every lesser degree of homicide was included in the one charged.

The trial resulted in the conviction of the accused of murder in the second degree, and the punishment, fixed by the jury, was imprisonment in the penitentiary for a term of 15 years. Sentence was accordingly pronounced and judgment of conviction rendered, from which this appeal was taken.

No briefs have been submitted in this court by either the state or the .appellant.

The few exceptions to the rulings of the court upon the admission of evidence need not be discussed, as they are without merit.

There is no aspect of this case which entitled the defendant to the affirmative charge as to either count of the indictment, or as to either degree of homicide therein charged. These questions were for the jury under the evidence adduced upon'the trial.

The remaining charges refused to defendant, none of which is numbered, were properly refused under the authority of the following cases. Nutt v. State, 63 Ala. 180; McKee v. State, 82 Ala. 32, 2 So. 451; Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am. St. Rep. 75; Bailey v. State, 133 Ala. 155, 32 So. 57; Rector v. State, 11 Ala. App. 333, 347, 66 So. 857; Pat Clemmons v. State (8 Div. 689) ante, p. 418, 116 So. 910.

The record proper is without error. Judgment of conviction is affirmed.

Affirmed.  