
    Wright v. The State of Ohio.
    (Decided November 9, 1933.)
    
      
      Mr. John A. Grist, for plaintiff in error.
    
      Mr. Paul A. Baden, prosecuting attorney, for defendant in error.
   Hamilton, P. J.

Plaintiff in error was convicted in the juvenile court of Butler county of contributing to the delinquency of a minor boy.

The state moves to dismiss, for the reason that the petition in error, accompanied by the brief setting forth its claimed error, was not filed within thirty days from the judgment of conviction, and that the petition in error was filed without leave of court.

While the court would be justified in sustaining the motion to dismiss the petition in error, we do not desire to rest our decision on that point alone.

It is urged in the brief that examination of witnesses by the court was not conducted in the presence of the defendant, plaintiff in error here, and that he was without opportunity of cross-examining the witnesses. If this be the fact, and it was properly brought before this court, it would require a reversal of the judgment. However, this fact was only raised by affidavit on a motion for a new trial. There is no bill of exceptions filed in the case, and therefore no certificate of the judge that the two affidavits filed constituted all the evidence submitted on the motion.

In the case of Montgomery v. State, 4 C. D., 199, 12 C. C., 679, it was decided that affidavits filed in support of the motion for a new trial must be incorporated in a bill of exceptions with the certificate that the affidavits constituted all the evidence submitted.

In the case of Berman v. State, 25 C. D., 386, 16 C. C. (N. S.), 106, the court held: “In order that affidavits used on a motion for a new trial may be considered by a reviewing court, there must be a certificate of the trial judge that the affidavits in question were all the evidence introduced on the hearing of the motion. ’ ’

The Berman decision was affirmed by the Supreme Court, without opinion, in 81 Ohio St., 508, 91 N. E., 1123.

Therefore, this court not being in a position to consider the affidavits used on the motion for a new trial, there is nothing before us on which the court can consider the question raised as to what took place at the trial. The judgment is therefore affirmed.

Judgment affirmed.

Ross, J., concurs.  