¶2It is most unusual for a record to affirmatively, show absence of error, but such is the one before us. The motion for a nolle prosequi of the indictment was submitted to and decided by the judge who presided at the trial and heard and decided Durbin’s motion for a new trial on the ground that the verdict was not sustained by sufficient evidence-.
¶3The bill of exceptions shows the following' occurrence during the hearing of the motion to nol pros: At page 10 the trial judge "said:
“I have stated in detail, I think, and lengthwise my conclusion on the motion for a new trial in this case. I didn’t believe the evidence sufficient to support the verdict against ’the defendant. I believe the case'was ably-prosecuted and exhaustively orosecuted, so far as the evidence is concerned. Consequently I can not see that there could be a different 3onclusion reached in another trial. If the State of Ohio is interested in punishing the guilty party in- connection with' this offense, it seems to me that that party is now known. At ahy-'rate, the evidence in this casé pointed with unusual clearness as to who he was and if the county wishes to prosecute the casé, it ought to do it in a manner that would' accomplish the desired result from the prosecution’s standpoint of guilt of the party who committed the offense. I do not believe that the evidence showed that that was the defendant in this case. I think that the evidence did show who the party was and under all the circumstances then, the court is of the opinion that no good purpose could be served to the citizens of this county to incur further expense in connection with this, particular case.”
¶4■ At pages 1 'and 2, Mr. -Schwenck the prosecuting attorney, when stating the case in behalf of the,motion to nol pros, asserted -that Mr. Sears the special prosecuting • attorney had 'filed in -the Supreme Court a brief wherein -he declared that a conviction can never again be had in this case, which' brief was in support of the motion made in that court by Mr. Sears as special prosecuting attorney to certify the record of this court afSrming the-granting of Durbin’s motion for a new trial. ■ Mr. Sears did not deny that assertion.
¶5It is therefore, in m-y opinion, both unnecessary ' and inappropriate to either decide or discuss the question whether (he appointment of Mr. Sears as special prosecuting attorney was valid, void or voidable, or any feature in relation thereto.