Commonwealth v. Duff ( 1898 )

Opinion by

Reeder, J.,

There are three assignments of error. The first of which is that the court erred in overruling the defendant’s motion in arrest of judgment. “ Judgment can only be arrested for defects apparent on the face of the record: ” Delaware Division Canal Co. v. Commonwealth, 60 Pa. 367. There being no defect apparent on the record as presented to us, we cannot say the court erred in overruling this motion. Second. That the court erred in overruling the defendant’s motion for a new trial. “ A motion for a new trial is an appeal to the discretion of the court; it will not be granted unless injustice has been done: ” Com. v. Eberle, 3 S. & R. 9. This case is before us without the testimony, without the judge’s charge attached to the record, without a single exception to any action of the court as appears by the record. We ought to say in justice to the appellant’s attorneys, through no fault of theirs, there being no stenographer employed by the court for the purpose of talcing either the notes of testimony or the charge. The opinion of the court in refusing a new trial is no part of the record, and this court cannot take notice of any fact stated therein. Third. The court erred in directing a verdict of guilty. The record does not disclose whether he did or did not direct a verdict, and therefore we cannot consider and determine whether he had the right to do so or not. In Com. v. Ware, 137 Pa. 476, the opinion delivered by Chief Justice Paxson seems to be so peculiarly applicable to this case as to justify us in extensively quoting it. “ This record comes up without a single exception in the court below. It was conceded in the argument that no exceptions were taken. ... In the absence of bills of exceptions we have nothing before us but the bare record such as would be sent up upon a common writ of certiorari. The object of an exception is to place something upon the record which occurred upon the trial below. Until the matter complained of is thus placed upon the record we can have no official knowledge of it. We can know nothing of a trial except.as it is disclosed by the record. If we were to decide cases by what is outside of it, our decisions would be mere arbitrary rescripts instead of judicial decrees, and would deservedly lose the confidence of the bar and the community.”

Judgment affirmed and the record remitted in order that the sentence imposed may be carried into effect.