
    The State v. Nellis.
    1. Practice on Appeal: defective abstract. This court cannot say that the trial court erred in taking a criminal case from the jury for want of evidence on the part of the state, when the evidence is not shown by the record.
    
      Appeal from Kossuth District Court.
    
    Thursday, October 14.
    
    Indictment for breaking and entering a car belonging to a railway company, with intent to steal property. Trial by jury, and, under the direction of the court, the jury found the defendant not guilty, and judgment was accordingly rendered. The state appeals.
    No appearance for either party.
   Seevers, J.

Why this case is here we are at a loss to conceive. We have before us a transcript which contains the indictment, proceedings of the court during the trial, and a motion for a continuance filed by the state. We infer that the court directed the jury to find for the defendant because the evidence was insufficient to warrant a conviction. As the evidence is not before us, it is obvious we cannot say that the court erred. The motion was filed after the jury was sworn, and after evidence had been introduced on the part of the state. We have looked into the affidavit on which the motion is based, and we think the court rightly held that it was insufficient to entitle the state to a continuance, or to introduce the witness referred to in the affidavit, conceding that the state asked it to do so.

Affirmed.  