Argued October 5, 1926. Appellant was convicted of obtaining money under false pretenses in circumstances which need not be stated in view of the conclusion reached by this court concerning the assignments of error. The first assignment violates Rule 28; the second violates Rule 22; both are therefore dismissed.
We may however say that the first is to the refusal to grant appellant's motion, made at the conclusion of the Commonwealth's case that the court direct the jury to find a verdict of not guilty. As defendant did not rest, the refusal of the motion was proper, but such refusal cannot be assigned for error in a criminal prosecution any more than the refusal to grant a non-suit can be assigned for error in a civil case. If defendant desired to raise the same question on appeal he should have renewed his motion after the evidence was all in; (cf. Wigmore, Evidence, vol. IV, sec. 2496); that was not done. The evidence discloses a clear dispute of fact which required that it be submitted to the jury. *Page 190
The third assignment is to the refusal of a new trial; it is dismissed because the record discloses no abuse of discretion in refusing the motion.
The judgment is affirmed and the record remitted to the court below and it is ordered that the defendant appear in that court at such time as he may be there called, and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.