
    Roy H. Preston v. State of Nebraska.
    Filed May 10, 1935.
    No. 29482.
    
      J. A. Hayward and Grover Long, for plaintiff in error.
    
      William H. Wright, Attorney General, Paul P. Chaney and Milton C. Murphy, contra.
    
    Heard before Goss, C. J., Good, Eberly, Day, Paine and Carter, JJ., and Redick, District Judge.
   Per Curiam.

Roy H. Preston was convicted of arson and prosecutes error proceedings to this court. The assignments of error relate to the misconduct of the bailiff in the performance of his duties with the jury. The plaintiff in error relied mostly upon affidavits which are not a part of the bill of exceptions and so cannot be considered. First Trust Go. v. Glendale Realty Co., 125 Neb. 283. The state introduced oral testimony which discloses that some material evidence was before the court which is not in the bill of exceptions. Where it is apparent from the bill of exceptions that material evidence has been omitted, it will not be considered on appeal in determining an issue of fact or the sufficiency of the evidence to sustain a finding of fact by the trial judge. Dawson v. Stockmen’s Nat. Bank, 119 Neb. 115; Greene v. Greene, 49 Neb. 546, 34 L. R. A. 110, 59 Am. St. Rep. 560.

The conduct of a bailiff in charge of a jury is a question of fact. It will be presumed, in the absence of a proper bill of exceptions, that the evidence was sufficient to support the finding of the trial judge.

Affirmed.  