
    [No. 14876.
    Department One.
    January 10, 1919.]
    The State of Washington, Respondent, v. Polly Wernitsch, Appellant.
    
    Appeal (272)—Recohd—Affidavits. Affidavits used upon an application for a new trial cannot be considered on appeal unless brought up by bill of exceptions or statement of facts.
    Appeal (413)—Review—Verdict. Where the evidence was conflicting and the case was submitted on proper instructions, error cannot be predicated on the insufficiency of the evidence.
    Appeal from a judgment of the superior court for Yakima county, Holden, J., entered October 23, 1917, upon a trial and conviction of violating the prohibition law.
    Affirmed.
    
      William M. Thompson and Charles E. Bolin, for appellant.
    
      O. R. Schumann and J.-Lenox Ward, for respondent.
    
      
      Reported in 177 Pac. 712.
    
   Mitchell, J.

Appellant was convicted by a jury of tbe unlawful sale of intoxicating liquor, and has appealed from tbe judgment entered on tbe verdict.

From appellant’s brief, which is short and irregular, according to subdivision 2, rule 8, of the rules of this court, we understand that only two alleged errors are claimed, viz.: First, the denial of a motion for a new trial; and second, insufficiency of the evidence to justify the verdict.

As to the motion for a new trial, it was based upon grounds which required it to be supported by affidavits. It appears that affidavits were used, at least they are found in the record here only in the transcript certified to by the clerk of the trial court. These the respondent moves to strike because they are not embodied in a statement of facts or bill of exceptions certified to by the trial judge. The motion must be granted. Hendrix v. Hendrix, 101 Wash. 535,172 Pac. 819.

As to the other point, the evidence was conflicting. There was positive and direct evidence to sustain every essential allegation of the information. No exception was'taken to any of the instructions given to the jury. Accordingly, it cannot be successfully claimed the verdict and judgment were erroneous in this respect. Singer v. Mets Co., 101 Wash. 67, 171 Pac. 1032.

Judgment affirmed.

Main, O. J., Mackintosh, Tolman, and Chadwick, JJ., concur.  