¶1Opinion by
¶2The defendant and John P. Graham were jointly indicted for that they “ did falsely and maliciously conspire and agree together to cheat and defraud one John H. Fisher of his moneys, goods, chattels and other property, and other dishonest, malicious and unlawful acts then and there to do, to the prejudice of him, the said John H. Fisher,” etc. They were tried June 20, 1905, and severally convicted.
¶3After a motion for a new trial, which was duly argued and overruled, the appellant took his appeal to this court, assigning for error the sustaining by the court below of the objections of the prosecution to certain offers of evidence made by the defendant.
¶4*446The testimony is not printed. Even what is printed in the appendix as exhibits has no marks of identification and are not shown in any way to have been offered in evidence. There is no certificate either of the clerk of the court nor of the trial judge that they were so offered. The bill of exceptions, granted four months after the trial, is “ Certified only because counsel for the commonwealth have assented thereto, my own recollection after this lapse of time being defective. John M. Kennedy, P. J.”
¶5It is impossible for us, with a record in this condition, to determine whether certain questions which the counsel of the appellant now allege were asked at the trial were in fact properly asked as cross-examination. There is nothing before us of record by which to try either their competency or relevancy. It is true that, if the facts stated in the history of the case and in the argument of appellant’s counsel were part of the record, we might have something upon which to base an opinion in regard to the subject, but they are not part of the record and, therefore, cannot be considered by us in determining the questions presented.
¶6Inasmuch as all of the assignments of error depend upon practically similar grounds and there is nothing in the record by which we can reach an intelligent conclusion in regard to the competency or relevancy of any of the testimony offered, the assignments must all be overruled.
¶7Judgment affirmed.