Stubbs v. State

Busseiu, J.

The plaintiff in error suggests a diminution of the record, and asks that the affidavit of the prosecutor, on which the accusation was based, be ordered transmitted to this court as part of the record. We think it unnecessary to order the affidavit sent up; because even if its contents can be considered on review of a motion for new trial, the truth of the contention of the plaintiff in -error, that the affidavit upon which the accusation issued was for a misdemeanor, is already apparent from the record. But if the affidavit is a part of the accusation and for any reason is defective, the objection should have been urged by demurrer, motion to quash, or, éven after conviction, by motion in arrest of judgment. Neither on a motion for new trial, nor by a writ of error whose only assignment of error is the overruling of a motion for a new trial, can advantage be taken of the defects of the accusation. This brings us to the merits of the motion. It appears that there was evidence which would have authorized either an acquittal or a conviction, and that the jury, in the exercise of their prerogative, gave the preference to the witnesses for the State. The verdict, under the decision in Davis v. Kirkland, ante, 5, should not be disturbed.

Judgment affirmed.