
    The State of Kansas, Appellee, v. Henry Menz, Appellant.
    
    No. 16,408.
    
      Instructions — Review—Evidence Not Preserved. Instructions in an intoxicating-liquor case held not reviewable because the evidence was not preserved.
    Appeal from Sedgwick district court; Thomas C. Wilson, judge.
    Opinion filed November 6, 1909.
    Affirmed.
    
      J. A. Brubacher, and James Conly, for the appellant.
    
      Fred S. Jackson, attorney-general, and W. A. Ayres, county attorney, for the appellee.
   Per Curiam:

Instruction No. 8 informed the jury that the finding of a United States revenue stamp in a place used for the manufacture or storage of intoxicating liquors showing payment by any person of the special tax for a period not then expired is prima facie evidence that such person maintains a nuisance there. The appellant insists that this was error because instruction No. 9 told the jury that “Exhibit D,” introduced in evidence for the purpose of showing that the appellant had paid the internal-revenue tax, was withdrawn by the state and was not to be considered by them for any purpose. The difficulty is that the bill of exceptions does not contain the evidence, and we have no right to assume that there was not other evidence upon which to base the instruction. (The State v. Forline, 54 Kan. 69; The State v. Heth, 60 Kan. 560; The State v. Labore, 80 Kan. 664.) Moreover, if there was no other evidence any possible error was cured by instruction No. 9, charging the jury wholly to disregard “Exhibit D.”

There was no error in the instruction calling attention to the testimony of the appellant and advising the jury that they might consider his interest in the result as affecting his credibility. (The State v. Bursaw, 74 Kan. 473.)

The judgment is affirmed.  