¶1The appellants were convicted of the crime of murder in the first degree, and sentenced to imprisonment for life.
¶2The record shows that on the 28th day of February, 1910, the defendant filed motions asking for a severance, and on the 5th day of March, 1910, each of the defendants, individulaly, filed a similar motion. Thereafter the cases were stated on the minute book as if a severance had been granted, and in each case, separately, on the 28th day of October, 1910, an order was made, setting the 14th day of November, 1910, as the day for trial, and from time to time the day was continued until May 25, 1911, when the case appears again as “State v. Will Graves and Addie Miles,” and the record states that each of the defendants appeared in person and by attorney, and pleaded not guilty, and that on issue joined the jury found the verdict. So, although the record shows that said motions were filed, and made a part of the record by the order of the court, yet said record does not show that said motions were called to the attention of the court, or that any action of the court was taken on the same. On the contrary,- it *3appears that the defendants appeared and pleaded to the indictment.
¶3We find a paper whiting, on ordinary legal cap paper, filed with this record, in the form of a hill of exceptions, but not signed by any one, except that, at the end of it, the following statement appears, and it is signed by “H. P. Heflin, Solicitor of Jefferson County, Ala.,” to wit: “Owing to the death of Hon. Samuel L. Weaver, who presided at the trial of the foregoing cause and who failed to approve the bill of exceptions therein, it is hereby agreed that the statements herein are true and correct, and is the evidence produced at said trial, and I hereby consent for the same to be taken as appellants'' legal bill of exceptions on their motion to establish same in the Supreme Court of Alabama.”
¶4Section 3022 of the Code of 1907 provides that, when the trial judge dies, the bill of exceptions may be established as in case of refusal of a judge to sign, and that the application to establish the bill must be filed on or before the next call of the division. No application has been made to establish the bill of exceptions and we know of no authority of law for receiving this paper, undated, and signed by the solicitor for the state alone, as a bill of exceptions. — Kirby v. Vann, 51 Ala. 221; Kerley v. Vann, 52 Ala. 7; Pearce v. Clements, 73 Ala. 256; Clark v. McCrary, 80 Ala. 110; Cooley et al. v. U. S. Sav. & L. Co., 144 Ala. 538, 542, 39 South. 515.
¶5As .the record does not shotv that any action’ was taken by the court on the motion for a severance, -or that the same was called to the attention of the court, the presumption is that it was waived or not insisted on. Consequently no error appears on the record, and the judgment .of- the court is. affirmed.. .
¶6Affirmed.