
    (113 So. 414)
    BLAIR v. STATE.
    (4 Div. 213.)
    Court of Appeals of Alabama.
    Jan. 11, 1927.
    Rehearing Denied March 8, 1927.
    A. Whaley, of Andalusia, for appellant.
    Harwell G. Davis, Atty. Gen., for the State.
    Brief of counsel did not reach the Reporter.
   RICE, J.'

Appellant was convicted of the offense of murder in the second degree, and given a sentence to serve ten years in the penitentiary of the state.

An effort, abortive perhaps, was made to establish the bill of exceptions, by statutory proceedings in this court. Inasmuch as tbe Attorney General, in open court, has admitted that the bill of exceptions as presented by appellant’s counsel is correct in so far as it goes, the court is of the opinion that, waiving technicalities, justice will be done by considering same as lawfully established. Accordingly it is ordered that the said bill of exceptions as it appears by separate paper in the record is the true and correct bill of exceptions in the cause.

But a single question is presented for our decision. It appears that appellant, under indictment for tbe offense of murder in tbe first degree, bad been on a former trial convicted of tbe offense of murder in ‘the second degree. On this trial he was not allowed a special venire of jurors, but, during the progress of the trial, and before the case went to- the jury, the solicitor made a motion, which was granted, that the charge of the offense of murder in the first degree be nol. prossed. The appellant cannot complain. Brewington v. State, 19 Ala. App. 409, 97 So. 763; Williams v. State, 20 Ala. App. 604, 104 So. 280; Ex parte Wiliams, 213 Ala. 121, 104 So. 282.

There being no error in the record, the judgment is affirmed.

Affirmed.  