¶1The applicability of the instruction asked does not appear by bill of exceptions or otherwise. What the testimony was no where appears. If it be granted, as urged by defendant’s counsel, that it should affirmatively *359appear that the persons playing were unknown, it would by no means follow that an instruction would be pertinent, which assumes that the persons playing were shown by the evidence to be known to the grand jurors. Instructions asked should always be applicable and pertinent to the testimony submitted. If there is no testimony warranting the position assumed in an instruction, it should be refused. And when refused, and none of the testimony is before us, we are bound to presume that the refusal was justified.
¶2Affirmed.