The defendant was indicted for murder in the first degree and was convicted of murder in the second degree and his punishment was fixed at forty years imprisonment in the penitentiary.

The appeal is on the record proper and the transcript presented here appears to be in all respects regular.

There does appear in the record that a motion for a new trial was filed but there was no ruling thereon and hence the motion will be considered as abandoned. Bass v. State, 219 Ala. 282(19), 122 So. 45.

Affirmed.