The defendants were tried for murder and convicted of manslaughter.

1. In this case the indictment was found and the case tried at the same term of court as in State v. Mitchell (recently decided, No. 16,599) 44 South. 132,1 and the same objection was made to the manner of organizing the grand jury, and the same ruling made as in that case. That ruling is now sustained for the reasons given in that case. The writer and Justice MONROE dissented then, and dissent now, for the reasons assigned by Justice MONROE in State v. Lively (La.), 44 South. 128,2 and by the writer in the dissenting opinion this day handed down in the case of State v. Freeman (No. 16,595) 44 South. 334.3

2. We do not find in the record any bill of exception to the overruling of the motion for severance except the minute entry “bill reserved.” Hence we cannot review that ruling.

3. In his argument to the jury, the attorney for defendant commented at some length as to what had been his custom in putting the accused upon the stand to testify. The district attorney, in the course of his closing argument, said: •

“The attorney for accused says it has been his custom not to have his clients go on the stand to testify in their own — ”

At this point counsel for defendant stopped him, and the court instructed the jury to disregard what the district attorney had said, but to try the case strictly according to the evidence before them, that the law specially enjoined that no inference was to be drawn against the defendant from his not making himself a witness in his own behalf. The district attorney adds to the bill the statement that the observation he would have made to the jury, if he had been allowed to complete his sentence, would have been precisely the one which the judge himself made. Under these circumstances, defendant was-not prejudiced.

4. In the course of the argument of the district attorney, a question arose as to whether certain testimony he was commenting upon had been given in the presence of the jury or during their retirement, and the courts agreeing with the district attorney, in that' the testimony had been given in the presence-of the jury, allowed him to proceed, but, as an. extra precaution, instructed the jury that' they were the exclusive judges of the law and the facts and would have to disregard theeomments of the district attorney on the testimony in question if they had no remembrance of its having been given. Here, the-only possible conclusion is that counsel for defendant was mistaken in saying that the-testimony had been given out of the presence-of the jury.

5. Near a circus tent at night, a crowd of' young white men, who were, as the learned counsel for defendant puts it, “tanked up on blind-tiger whisky,” assaulted a negro, and.’, a row ensued, during which pistols were fired, and a bystander was killed — a white man-The trial was for the killing of this man. The defense was an alibi. The evidence was-all circumstantial. The theory of the state was that one of the accused, McLean, in-whose behalf alone the present bill was taken,. had quickly gone from the scene and immediately returned with a view to proving am alibi. A witness for the prosecution, having testified that immediately after the shooting he had met McLean coming towards where-the shooting had taken place, was asked: “What was his appearance?” And counsel! for defendant objected that “the testimony calls for an opinion pure and simple of the-witness; second, that it is no part of the resgestse, no part of the actual transaction itself, and what defendant and an outside-,, .party had to say at that time and place was hearsay, irrelevant, and immaterial.” The-*669witness answered: “He seemed a little excited, panting, walking very fast, panting when he was talking.” In a ease of circumstantial evidence, the “appearance” of the accused may clearly be proved.

The motion for new trial covers the same grounds which have been hereinabove considered.

Judgment affirmed.