
    (Sixth Circuit—Lucas County. Ohio, Cir. Court
    Sept. Term, 1894.)
    Before Haynes, Scribner and King, JJ.
    SAMUEL MONTGOMERY v. THE STATE OF OHIO.
    
      Bill of Exceptions — Affidavits used in hearing the motion for new trial can only be brought before the reviewing court by being made part of the bill of exceptions.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

A petition in error was filed in this court to reverse the judgment of the court of common pleas, in the conviction upon the indictment that was returned by the grand jury against Samuel Montgomery for alleged assault and battery upon one Hannan (Feitz). A motion for a new trial was filed, on the ground that the verdict is not sustained by sufficient evidence, on the ground of newly discovered evidence material to the defendant which he could not with reasonable diligence have discovered and produced at the trial, and that the verdict is contrary to law. On this second ground of the motion the affidavit was filed of Mrs. J. A. McCune, setting out certain matters which were denied by Mrs. Feitz. Two affidavits were filed and submitted, but the court overruled the motion on that point, as well as on the others. That is urged upon the part of counsel, in the argument of this case, as a ground for a new trial, which cannot be considered by this court, for the reason that the evidence is not properly before us. A rather common error is, that after a motion of that kind is filed, and affidavits have been filed, that the affidavits come up with the papers in the case and as part of the record. We have had, on other occasions, in other counties, to pass upon the question. The only way these affidavits can properly be brought before the court is by bill of exceptions, otherwise they become no part of the record. It is sufficient to say that if they had been before us, we have simply an affidavit upon one side and an affidavit denying upon the other, and w'e are not disposed to hold that the court erred in refusing a new trial upon this.

L. M. Murphy, for defendant in error.

Chas. E. Sumner, Assistant Prosecuting Attorney, for State.

The judgment of the Court below must be affirmed.  