Commonwealth v. Mock ( 1903 )

Opinion by

Rice, P. J.,

Where the refusal to quash an indictment is assigned for error and the motion to quash is based on an allegation of facts outside the record proper, the assignment must necessarily be overruled if the facts are not brought upon the record by a bill of exceptions. But even if the first assignment were supported by a bill of exceptions and it thus appeared that the information charged the defendant with having set up and maintained “ a public or common nuisance in and upon a public highway,” there was no variance between it and the indictment which charged the setting up and maintenance of a public and common nuisance “in a common road or highway for all citizens of this commonwealth to go, pass and travel at their will.” This is too plain for argument.

The second and third specifications of error relate to the refusal of the defendant’s points for charge, but the charge and the answers to the points were not brought upon the record by exceptions or otherwise, nor have they been certified to us. Moreover the question of the correctness of the rulings complained of depends upon the evidence, and as this has neither been printed nor sent up with the record it is manifest that these assignments must be overruled.

The fourth specification, alleging error in the refusal to grant a new trial, is not supported by an exception, and even if it were, it must be dismissed for the obvious reason that we cannot convict the trial court of an abuse of discretion, — the only ground upon which we could reverse its action in this particular, —without having the evidence before us. We remark, however that the question raised on the hearing of the rule for a new trial, as stated in the opinion of the learned judge below, appears to us to have been correctly decided.

The reasons assigned in support of the motion in arrest of judgment were, in substance, that the evidence was insufficient to warrant a conviction, but a motion in arrest of judgment is not the proper mode to raise that question. This is all that need be said concerning the fifth assignment.

Finding no error in this record the judgment is affirmed and the record remitted to the court below to the end that the sentence be carried into effect.