¶1The appellant was indicted and convicted of murder. The grounds of reversal relied on are :
¶21. The refusal of the Court below to grant a continuance; and,
¶32. Error in giving and refusing instructions.
¶4The motion for a continuance was properly overruled—the Court assigning as a reason therefor : “ That the defendant had used no diligence to procure the attendance of his witnesses, and had not applied for an order of the Judge to compel the attendance of witnesses living out of the county, until the evening before the trial was to take place.” In addition, to this, it may be observed that the affidavit is fatally defective in another particular, viz.: it does not state that there arc no other witnesses by which the same facts can be proved.
¶5The instructions are substantially correct. The appellant, *90however, contends that the Court erred in instructing the jury that “it was unnecessary for them to consider the law in relation to manslaughter, as the prisoner was either guilty of murder or nothing at all.” The evidence has not been preserved, and it is impossible for us to say the Court erred in giving this charge. In the absence of the testimony, every legal intendment is in favor of the ruling of the District Judge.
¶6Judgment affirmed, and the Court directed to fix a day to carry the sentence into execution.