
    George A. McCall v. State of Nebraska.
    Filed March 18, 1896.
    No. 7359.
    Criminal Law: Record eor Review. When the grounds of complaint of a plaintiff in error depend upon the existence of certain facts in respect to which there is no recitation or evidence in the record, such assignments of error must he disregarded in the supreme court.
    Error to the district court for Dawes county. Tried below before Kinkaid, J.
    
      Allen G. Fisher, for plaintiff in error.
    
      A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, for the state.
   Ryan, C.

In the district court of Dawes county plaintiff in error was convicted of carnally knowing and abusing, with her consent, a female child of the age of thirteen years. It is first insisted in his behalf that while the information before the examining magistrate charged the same offense as that charged in the district court, the evidence tended to show that there had been committed a rape by the use of violence. As there is no bill of exceptions, this statement of counsel cannot be verified, and hence must be disregarded.

It is said by counsel in the brief submitted in behalf of the plaintiff in error that there were irregularities in the charging, in the absence of said counsel, a jury which had failed to agree upon a verdict. There is found in the record no evidence of this alleged fact. It cannot be assumed to exist and the argument based thereon must be disregarded. So also of the claim that a nunc pro tunc order was improperly made, and' that the defendant was sentenced in vacation. The judgment of the district court is

Affirmed.  