Commonwealth v. Bolan

Opinion by

Porter, J.,

The first assignment of error is to a ruling of the court on the admission of evidence; the second, third, fourth, fifth and sixth to certain instructions given in the general charge. No one of these assignments is supported by an exception taken in the court, below, nor did the appellant seek additional instructions on the questions now attempted to be raised; nor did he request that the charge and points be brought upon the record. They all involve questions arising upon the evidence, and, therefore, in the absence of exception before a verdict they are not subject to review on appeal: Com. v. Johnston, 44 Pa. Superior Ct. 218; Ward v. Babbitt, 270 Pa. 370. Under the circumstances presented, we need not pass specifically on these several assignments of error; an investigation of the record, however, discloses no reversible error.

The appellant seeks to escape the legal results of the omissions just mentioned by an attempt to raise in this court several questions presented to the court below on a motion for a new trial, to the refusal of which the court below did grant an exception, and by assigning the refusal of that motion for error. “Appellant, having failed to take any exception to the direct action of the court, attempted to evade the result of his omission by making the rulings the subject of a motion for a new trial, and then excepted to the refusal of the court to sustain this motion and assigns such refusal as error; this is a practice which cannot be approved or permitted”: Bank of Mifflintown v. Bank of New Kensington, 247 Pa. 41; Maculuso v. Humboldt Fire Insurance Co., 271 Pa. 489. We are not convinced that there is any merit in this appeal which would warrant us in disregarding the well established rules of practice, and the specifications of error are dismissed.

The judgment is affirmed and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.