
    No. 17,467.
    Brown v. The State.
    Supreme Court Practice. — Motion for New Trial Not in Record. — Question. — Where a motion for a new trial is not set out in the record, no question can be raised on appeal as to anything contained therein.
    From the St. Joseph Circuit Court.
    
      A. Wilhelm and. Q. Q. Feldman, for appellant.
    
      W. A. Kelcham, Attorney-General, 0. Cunningham, SH. Spooner and M. Moores, for State.
   Jordan, J.

— The appellant was convicted in the trial court, upon a charge of petit larceny, and sentenced to be imprisoned in the State prison, etc. From that judgment he prosecutes his appeal to this court, and has assigned for errors:

1st. That the court erred in overruling his motion to poll the jury.

2d. That the court erred in overruling his objections to the acceptance of the verdict in the absence of the jury.

3d. In overruling his motion to be discharged from custody.

4th. In overruling a motion for a new trial.

5th. That the court erred in reassembling the jury for the purpose of having the appellant poll the same after they had been discharged.

In the condition that the record comes to us, we can not consider any of the errors assigned. While it is true that it appears from the record, that a motion for a new trial was filed, however the motion is not set out, and hence we are not apprised of what reasons, if any, were stated therein. There is no bill of exceptions in the record, and in no' legitimate manner are the errors complained oí by the appellant presented to this court for a determination on their merits. It is firmly settled by repeated decisions of this court, that all presumptions here are in favor of the trial court, and in order to exclude these, a litigant, who prosecutes an appeal from a judgment below, must bring before us a record so made up, as to clearly show the rulings of the lower court, by which he is aggrieved, and make it affirmatively appear that such rulings or decisions were harmful to appellant. This rule of appellate procedure is supported by numerous cases of this court. See McClure v. State, 116 Ind. 169, and cases there cited. Shugart v. Miles, 125 Ind. 445, and cases there cited.

Filed Feb. 5, 1895.

It is also well established that where an alleged error, occurring at the trial, is not made a ground of a motion for a new trial, it will not be considered on appeal. Doe v. Herr, 8 Ind. 23; Conner v. Town of Marion, 112 Ind. 517, and cases there cited.

The judgment is affirmed, at the cost of appellant.

All concur except Howard, J., who was absent.  