State v. Rogers

¶1[1, 2] Accused has appealed from a conviction of selling intoxicating liquor for beverage purposes. His trial was before the judge, without a jury. He moved for a new trial, on the ground that the verdict was pontrary to the law and the evidence. He complains that he was refused permission to annex to his said motion for a new trial the testimony in the case, which had been taken by a stenographer. The record does not show whether the request for this permission was made before or after the motion for new trial had been passed on. In the latter event, the ruling was entirely correct, since, very evidently, a motion for new trial cannot be thus enlarged after it has been passed on. But even if the request was made before the motion had been passed on,-we do not see how the accused was injured, since the testimony could be considered by the trial judge just as well without being thus annexed, as by being thus annexed, and could be brought up to this court just asi well by being annexed to the bill of exception to the refusal of the new trial, as to the motion for new trial.

¶2[3] We may add that said testimony, if brought to this court, could have been useful only if showing a total absence of evidence of guilt, not merely an insufficiency of evidence, however manifest such insufficiency might appear to the judges of this court; and moreover- that it is extremely improbable the trial *907judge would have convicted, accused if no evidence at all had incriminated him.

¶3Judgment affirmed.