Goldsmith v. State ( 1876 )

Day, C. J.

We. can not say that the district court erred in affirming the judgment of the common pleas, nor that the common pleas erroneously overruled the motion of the plaintiff in error, for the record does not show that the costs of the witnesses attending at the October term were taxed against the plaintiff in error. It is true that it is so stated in his motion to retax the costs, but the motion does not import absolute verity; and what was shown by the exhibits and affidavits offered on the hearing we can not tell, for no bill of exceptions was taken to inform us what the evidence was which was adduced on the hearing of the motion. The papers purporting to be exhibits attached to •and claimed to be part of the record do not show that the witnesses whose names are found therein attended at the term before the arrest, nor, if they did, that their fees were taxed against the defendant. Moreover, they are papers that form no part of the record in fact, nor could they properly be made such without being brought upon the record by bill of exceptions. Sleet v. Williams, 21 Ohio St. 82; Smith v. The Board of Education of Bucyrus, 27 Ohio St. 44.

Inasmuch, then, as the record fails to show what the evidence was upon which the court of common pleas overruled the motion to retax the costs, we can not say it appears that the court erred in its ruling, nor that the district court erred in affirming the judgment of the common pleas. It follows that we can not do otherwise than affirm that of the district court.

Judgment affirmed.