
    Moses Goldsmith v. The State of Ohio.
    1. A reviewing court, on error, will not regard any matter purporting to be part of the record which is not a proper matter of record.
    2. Therefore, exhibits and affidavits, given in evidence on the hearing of a motion, which are not legitimately part of the record, can not be considered by a reviewing court on error to the decision of the motion, though they may have been recorded by the clerk as part of the case, unless they are properly brought upon the record by bill of exceptions.
    3. Where a motion to retax costs was overruled, and the record does not show that the costs complained of were taxed to thd party complaining. and no bill of exceptions was taken to properly bring upon the record the evidence upon which the motion was overruled, it is not error for a reviewing court to affirm the judgment of the court below overruling the motion.
    Error to the District Court of Putnam county.
    At the May term, 1871, of the Court of Common Pleas of Putnam county, Goldsmith was indicted for keeping a room where intoxicating liquors were sold in violation of law. August 3, 1871, a warrant for his arrest was issued and placed in the hands of the sheriff, and Goldsmith was arrested on the first day of November following. In the meantime there had been a term of the court of common pleas, commencing on the 11th day of October. There is attached to the record a paper purporting to be a copy of a subpoena, issued in the case September 16, 1871, on the part of the State, for a number of witnesses to attend at the October term of the court.
    At the January term, 1872, Goldsmith was tried and convicted. He was sentenced to pay a fine of fifty dollars and the costs of the prosecution, “ taxed at $--and-cents.”
    March 8, 1872, on due notice to the prosecuting attorney, Goldsmith filed a motion to retax the costs, on the ground, as alleged therein, that about $70 of the costs taxed against him in the case was for the witnesses and costs of summoning them, made at the October term, before his arrest, which was not until after that term of the court had expired.
    There appears in the l’ecord, as part thereof, an affidavit of the sheriff' stating the reason why Goldsmith was not arrested before the expiration of the October term to be, that before and during that term he could not be found. There is also attached to the record what purports to be a “ cost bill,” filed at the October term, 1872, on which appears the names of the witnesses subpoenaed at the October term, charging the State $60 costs, without showing when the costs were incurred.
    
      At the October term, 1872, the motion was heard upon the record, exhibits and affidavits, and the motion was overruled. Goldsmith excepted, but took no bill of exceptions. He then took the case on error to the district court, which affirmed the judgment of the common pleas. Thereupon he prosecuted his petition in error in the supreme court to reverse the judgments of the courts below.
    
      James Murray, for the plaintiff in error.
    
      Stansbury Sutton, for the State.
   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.  